Loading...
HomeMy WebLinkAbout2010/10/06 - MinutesOctober 6, 2010 RANCHO CUCAMONGA REDEVELOPMENT AGENCY, FIRE DISTRICT AND CITY COUNCIL CLOSED SESSION MINUTES A. CALL TO ORDER The Rancho Cucamonga Redevelopment Agency and City Council held a closed session on Wednesday, October 6, 2010, in the Tapia Room of the Civic Center located at 10500 Civic Center Drive, Rancho Cucamonga, California. The meeting was called to order at 5:30 p.m. by Vice Chairman/Vice PresidenUMayor Pro Tem L. Dennis Michael. Present were Agencymembers/Boardmembers/Councilmembers: Rex Gutierrez, Diane Williams, Sam Spagnolo and Vice Chairman/Vice PresidenUMayor Pro Tem L. Dennis Michael. PresidenUChair/Mayor Donald J. Kurth was absent. Also present were: Jack Lam, City Manager; John Gillison, Assistant City Manager; and James Markman, City Attorney. B. ANNOUNCEMENT OF CLOSED SESSION ITEM S Vice Chairman/Vice PresidenUMayor Pro Tem L. Dennis Michael announced the closed session items: D1. LABOR NEGOTIATIONS PER GOVERNMENT CODE SECTION 54954.2 TO GIVE JOHN GILLISON, ASSISTANT CITY MANAGER, DIRECTION IN REGARDS TO THE MEET AND CONFER PROCESS -RDA, FIRE, CITY C. PUBLIC COMMUNICATIONS ON CLOSED SESSION ITEM S No one was present to comment on the closed session item. D. CONDUCT OF CLOSED SESSION Closed session began at 5:30 p.m. E. CITY MANAGER ANNOUNCEMENTS No announcements were made. F. RECESS The closed session recessed at 6:30 p.m. with no action taken. G. REGULAR MEETING i Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 1 of 13 CALL TO ORDER - 7.:00 P.M. COUNCIL CHAMBERS The meeting of the Rancho Cucamonga Redevelopment Agency, Fire Protection District, and City Council reconvened in the Council Chambers of the Civic Center located at 10500 Civic Center Drive, Rancho Cucamonga, California. Vice Chairman/Vice PresidentMayor Pro Tem L. Dennis Michael called the meeting to order at 7:00 p.m. Present were Agencymembers/Boardmembers/Councilmembers: Rex Gutierrez, Diane Williams, Sam Spagnolo and Vice Chairman/Vice PresidenUMayor Pro Tem L. Dennis Michael. Chairman/PresidenUMayor Donald J. Kurth was absent. Also present were: Jack Lam, City Manager; James Markman, City Attorney; John Gillison, Assistant City Manager; Linda Daniels, Deputy City Manager; James Troyer, Planning Director; Bill Wittkopf, Public Works Director; Trang Huynh, Building and Safety Official; Mark Steuer, Engineering Director; Kevin McArdle, Community Services Director; Joe Cusimano, Police Chief; Mike Bell, Fire Chief; Joe Pulcinella, Animal Services Director; Jim Frost, City Treasurer; Debra McKay, Records Manager/Assistant City Clerk and Kathy Scott, Assistant City Clerk. H. ANNOUNCEMENTS/PRESENTATIONS H1. Announcement of "Furry Friends Festival Walk-a-thon and Fair." Joe Pulcinella, Animal Services Director, announced the upcoming Furry Friends Festival Walk-a- thon and Fair, to be held on October 23, 2010. H2. Announcement for Fire Prevention Week and an invitation to the Rancho Cucamonga Fire District's Annual Open House on Saturday, October 9th from 10 am to 3 pm at the Jersey Fire Station (Milliken 8 Jersey). Fire Chief Mike Bell announced the start of Fire Prevention Week and noted that there will be an open house on Saturday, October 9, 2010. I. PUBLIC COMMUNICATIONS 11. Janet Walton from the Cucamonga Christian Fellowship said a prayer for the City Council and the community. 12. John Lyons was thankful that the missing girl from Etiwanda was found. He reminded everyone that the race is this weekend and noted the need for courtesy to out-of-town visitors. Mr. Lyons spoke in support of Proposition 23, commented on last night's candidate's forum and endorsed Mayor Pro Tem Michael, Bill Alexander and Meg Whitman. 13. Kathy Tiegs from the Cucamonga Valley Water District reported that the recycled water reservoir has been completed and will be operational the end of this month. J. CONSENT CALENDAR- REDEVELOPMENT AGENCY The following Consent Calendar items are expected to be routine and non-controversial. They will be acted upon by the Agency at one time without discussion. Any item may be removed by an Agencymember for discussion. Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 2 of 13 J1. Approval of Minutes: September 1, 2010 (Regular Meeting) September 15, 2010 (Cancelled Mtg.) J2. Approval of Check Register dated August 25 through September 28, 2010, for the total amount of $7,479,183.01. J3. Approval to adopt Annual Statement of Investment Policy. J4. Approval of a Promissory Note not to exceed the amount of $500,000.00 for the Rancho Cucamonga Municipal Utility for the purpose of acquiring energy to benefit the Project Area. J5. Approval to authorize an increase to Contract RA 10-010 in the amount of $584,350.00 to Garcia Juarez Construction, Inc., and approve a contract change order for the construction of Hellman Avenue Master Planned Storm Drain and Street Improvements -Phase 1 from 9~h Street to San Bernardino Road, to be funded from Tax Increment Funds, Account No. 2500801-5650/1553500-0. J6. Approval to assign Professional Services Agreement RA 06-023 to AECOM Technical Services, Inc. from Lim and Nascimento Engineering Corporation for right-of-way related tasks associated with the Arrow Rte/I-15 Interchange, and to authorize the Chairman to sign the assignment agreement. J7. Approval to accept bids received and award and authorize the execution of the contract in the amount of $1,008,080.00 to the lowest responsive bidder, Tamang Electric, and authorize the expenditure of a 10% contingency in the amount of $100,800.00 for the Civic Center Electrical Service Replacement and Standby Generator Upgrade, to be funded from Account No. 2513801-5603 and 2513801-5650/1715513-0. J8. Approval to accept the bids received and award and authorize the execution of the contract in the amount of $8,259,323.45, to the lowest responsive bidder, Riverside Construction Company Inc. (RA 10-015), and authorize the expenditure of a 10% contingency in the amount of $825,932.35, for the Foothill Boulevard Bike/Pedestrian Bridge, Route 66 Trailhead and Street Improvement project to be funded from 2004 Tax Allocation Bond Funds, Account No. 2660801-5650/1189660-0 and appropriate an additional amount of $5,000,000.00 to Account 2660801-5650/1189660-0 from 2004 Tax Allocation Bond Fund 660 balance, J9. Approval to release the Faithful Performance Bond No. 8567694, retained in lieu of a Maintenance Bond, in the amount of $339,698.20, for the Foothill Boulevard/Etiwanda Avenue Sidewalks and Block Walls, and the Wilson Avenue Median Modification at Fields Place Project, Contract No. RA 09-006. MOTION: Moved by Gutierrez, seconded by Williams, to approve the staff recommendations in the staff reports. Motion carried 4-0, with Chairman Kurth absent. K. CONSENT CALENDAR-FIRE PROTECTION DISTRICT The following Consent Calendar items are expected to be routine and non-controversial. They will be acted upon by the Fire Board at one time without discussion. Any item may be removed by a Boardmember for discussion. Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 3 of 13 K1. Approval of Minutes: September 1, 2010 (Regular Meeting) September 15, 2010 (Cancelled Mtg.) K2. Approval of Check Register dated August 25 through September 28, 2010, for the total amount of $553,999.61. K3. Approval to adopt Annual Statement of Investment Policy. MOTION: Moved by Spagnolo, seconded by Gutierrez, to approve the staff recommendations in the staff reports contained within the Consent Calendar. Motion carried 4-0, with President Kurth absent. L. CONSENT CALENDAR-CITY COUNCIL The following Consent Calendar items are expected to be routine and non-controversial. They will be acted upon by the Council at one time without discussion. Any item may be removed by a Councilmember for discussion. L1. Approval of Minutes: September 1, 2010 (Regular Meeting) September 15, 2010 (Cancelled Mtg.) L2. Approval of Check Register dated August 25 through September 28, 2010, and payroll ending September 28, 2010, for the total amount of $10,016,000.34. L3. Approval to adopt Annual Statement of Investment Policy. L4. Approval of plans and specifications for "Citywide Street Name Sign Replacement - FY 10/11" and authorize the City Clerk to advertise the "Notice Inviting Bids' to be funded from Account Number 1025001-5300 (Capital Reserve) as approved in the FY 2010/2011 budget. RESOLUTION NO. 10-149 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING PLANS AND SPECIFICATIONS FOR THE "CITYWIDE STREET NAME SIGN REPLACEMENT - FY 10/11" IN SAID CITY AND AUTHORIZING AND DIRECTING THE CITY CLERK TO ADVERTISE TO RECEIVE BIDS L5. Approval of Amendment No. 7 to the amended and restated lease agreement between the City of Rancho Cucamonga and Rancho Baseball, LLC (CO 92-064), relating to stadium security reimbursement. L6. Approval to award a contract to Wells Fargo Insurance Services, Inc. (CO 10-116) for insurance brokerage services for a term of five (5) years, with an option to renew for one (1) additional period up to a total of five (5) years, in the amount not to exceed $95,000.00 per year for the next five (5) years (2010-15). L7. Approval by the City Council of Purchase Agreement for acquisition of the historic Etiwanda Train Depot and Rail Spur (CO-117) from San Bernardino County Associated Governments (SANBAG) in the amount of $105,500, to be funded from Fund No. 628; and approval to amend Lease Agreement 04-048 between the City of Rancho Cucamonga and San Bernardino County Associated Governments (SANBAG) for reciprocal access to the property located at 7087 Etiwanda Avenue, APN: 0227-121-18. L8. Approval of a resolution authorizing the bi-annual routine destruction of City records pursuant to California Government Code Section 34090, the City's Records Retention Schedule, and other applicable legal citations. Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 4 of 13 RESOLUTION NO. 10-150 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AUTHORIZING THE DESTRUCTION OF CITY RECORDS WHICH ARE NO LONGER REQUIRED AS SET FORTH IN CALIFORNIA GOVERNMENT CODE SECTION 34090 AND OTHER APPLICABLE LEGAL REFERENCES L9. Approval to ratify a resolution for the emergency acquisition of materials, equipment rental, security guard service, and use of in-house labor forces necessary to effect the required repairs to the sports lighting at Etiwanda Creek and Day Creek Parks in the amount of $12,000, to be funded from Capital Reserve funds and appropriate $21,000 from the Capital Reserve fund balance into Account Numbers 1025001-5005 ($5,000), 1025001-5204 ($14,000), 1025001-5252 ($1,000), and 1025001-5304 ($1,000). RESOLUTION NO. 10-151 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, RATIFYING AND AUTHORIZING THE EMERGENCY PROCUREMENT OF GOODS AND SERVICES WITHOUT COMPETITIVE BIDDING L10. Approval of the receipt of a Promissory Nate not to exceed the amount of $500,000 for the Rancho Cucamonga Municipal Utility for the purpose of acquisition of energy to benefit the Project Area. L11. Approval of a resolution of the City Council of the City of Rancho Cucamonga adopting the Measure "I" Five Year Capital Project Needs Analysis for Fiscal Years 2011/2012 through 2015/2016, as required by San Bernardino County Associated Governments (SANBAG). RESOLUTION NO. 10-152 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ADOPTING THE MEASURE "I" FIVE YEAR CAPITAL PROJECT NEEDS ANALYSIS FOR FISCAL YEARS 2011/2012 THROUGH 2015/2016 AS REQUIRED BY SANBAG. L12. Approval of a Reimbursement Agreement (URA-26) (CO 10-118) far Undergrounding of Existing Overhead Utilities for Tract 17455, located on the north side of 9'h Street, east of Madrone Avenue, submitted by KB Home, and appropriate $60,880.73 to Account No. 1129303-5650/1026129-0 from Underground Utilities Fund balance. (REMOVED FROM THE AGENDA) RESOLUTION NO. 10-153 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING A REIMBURSEMENT AGREEMENT (URA-26) FOR UNDERGROUNDING OF EXISTING OVERHEAD UTILITIES, LOCATED ON THE NORTH SIDE OF 9T" STREET, EAST OF MADRONE AVENUE L13. Approval to release Faithful Performance Bond No. 762860P, retained in lieu of a Maintenance Guarantee Bond, in the amount of $608,529.55, for the Above Ground Fuel Tank improvement project at the City Yard, Contract No. 08-115. L14. Approval to release Faithful Performance Band No. 8567694, retained in lieu of a Maintenance Bond, in the amount of $339,698.20, for the Foothill Boulevard/Etiwanda Avenue Sidewalks and Block Walls, and the Wilson Avenue Median Modification at Fields Place Project, Contract No. 09-176. Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 5 of 13 L15. Approval to release Faithful Performance Bond No. 7608795, retained in lieu of a Maintenance Guarantee Bond, in the amount of $475,000.00, for the Victoria Park Lane Pavement Rehabilitation from Fairmont Way to Rochester Avenue and from 300' east of Day Creek Boulevard to Base Line Road, Contract No. 09-199. L16. Approval to release Faithful Performance Bond No. SU1101435, retained in lieu of a Maintenance Bond, in the amount of $341,974.00, for the Hillside Road Pavement Rehabilitation from West City Limit to Beryl Street, Contract No. 09-202. L17. Approval to release Maintenance Guarantee Bond No. 0495238-01 in the amount of $791,797.21 for the Fiscal Year 2009/2010 Local Street Pavement Rehabilitation Overlay of Various Streets project, Contract No. 09-187. L18. Approval to release Maintenance Guarantee Bond No. 0495246-01 in the amount of $719,467.72 for the Fiscal Year 2009/2010 Part 2 Local Street Pavement Rehabilitation Overlay of Various Streets project, Contract No. 09-200. L19. Approval to release the Maintenance Guarantee Bond for Parcel Map 17653, located on the north side of Jersey Boulevard, between Milliken Avenue and White Oak Avenue, submitted by Panattoni Development. L20. Approval to release the Maintenance Guarantee cash deposit for Parcel Map 17808, located at the northeast corner of Archibald Avenue and Palo Alto Street, submitted by William and Eva Espinoza. L21. Approval to release Maintenance Guarantee Bond for Tract 16512 (median landscaping), located at the northeast corner of Milliken Avenue and Church Street, submitted by KB Home Greater Los Angeles, Inc. Jack Lam, City Manager, noted that Item L12 has been removed from the agenda. MOTION: Moved by Spagnolo, seconded by Williams, to approve the staff recommendations in the remaining staff reports. Motion carried 4-0, with Mayor Kurth absent. M. ADVERTISED PUBLIC HEARINGS CITY COUNCIL The following items have been advertised andlor posted as public hearings as required by law. The Mayor will open the meeting to receive public testimony. M1. CONSIDERATION OF AN APPEAL OF A PLANNING COMMISSION DECISION TO REVOKE CONDITIONAL USE PERMIT CUP99-43 FOR THE BEER MUG - A public hearing on an appeal of the Planning Commission's decision to revoke the Conditional Use Permit on the grounds that it is operating in a manner detrimental to the public health, safety, or welfare or materially injurious to properties in the vicinity. The City Council will consider the appeal and may uphold or rescind the revocation or modify the Conditional Use Permit. The business is located within the Regional Related Commercial District, Subarea 4, of the Foothill Boulevard Specific Plan, in the Foothill Marketplace at 12809 Foothill Boulevard, Suite C1-C4 - APN: 0229-031-33. Related files: Conditional Use Permit CUP97-03 and Entertainment Permit EP97-30. (CONTINUED FROM SEPTEMBER 1, 2010) Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 6 of 13 RESOLUTION NO. 10-148 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, GRANTING THE APPEAL OF THE DECISION OF THE PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA TO REVOKE CONDITIONAL USE PERMIT 99- 43, AND REVERSING THE REVOCATION OF THAT CONDITIONAL USE PERMIT RESOLUTION NO. 10-147 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, DENYING THE APPEAL OF THE DECISION OF THE PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA TO REVOKE CONDITIONAL USE PERMIT 99- 43, SUSTAINING THE REVOCATION OF THAT CONDITIONAL USE PERMIT AND MAKING FINDINGS IN SUPPORT THEREOF Kit Bobko from Richards, Watson and Gerson indicated that he is representing staff in this matter. He noted that at the last meeting, Mr. Diamond was in the middle of addressing the City Council and that the meeting was continued in order to develop a complete administrative record. This record has been assembled and provided to all parties. In the interim, Mr. Bobko noted that the Police Department has visited the facility and the officer is here tonight to make a report. Also, Shelly Scebbi, the mother of the 19 year old who suffered from alcohol poisoning, is present tonight to offer testimony as she was unable to attend the last meeting. Mr. Bobko suggested that the City Council allow the testimony of both of these persons prior to Mr. Diamond finishing his comments so that Mr. Diamond can address their comments as well. Mayor Pro Tem Michael stated a point of order regarding the proper procedure. In response, City Attorney Markman inquired if Mr. Diamond was given much advance notice of the additional evidence. Mr. Bobko stated that he had provided this information to Mr. Diamond prior to the meeting. City Attorney Markman noted that Mr. Diamond was in the middle of a presentation that was impeded as the record was not complete. Now that the record is complete, Mr. Markman noted that the intention previously was to hear from both sides, open the public hearing for public testimony and then provide the opportunity for Mr. Diamond to speak until he is satisfied. At some time during this proceeding, Mr. Markman noted that the public hearing needs to be opened and suggested that the police officer and Mrs. Scebbi could address the City Council at that time. City Attorney Markman suggested that Mr. Diamond be asked to conclude his presentation. Roger Jon Diamond stated that he is Mr. Roig's attorney. Mr. Roig also approached the podium. Mr. Diamond noted that the hearing was continued as he had represented and Mr. Roig had confirmed that he was told that an entertainment permit was in place. After this was stated on October 4, 2010, City staff has conceded the possibility that Mr. Roig had been mislead. Mr. Diamond did receive a binder that contained documents that the City Council did not receive last time and assumed that the City Council had also received this record. Mr. Diamond noted that the entire record should be considered as this will show that the business was continuously run as a sports bar with entertainment. Mr. Diamond noted that the administrative record was still not complete, as the Zoning Affidavit from the California Department of Alcoholic Beverage Control was not included. This document shows that it was received by the Planning Department on April 6, 2009 and indicates that a Conditional Use Permit (CUP) was issued for this business for this purpose. Mr. Diamond noted that the CUP referenced in the Affidavit specifically says that entertainment is allowed at the location. He provided the City Council with a copy of that document. The purpose of this document and testimony was to confirm that everyone believed that CUP 97-30 applied and that entertainment was allowed. Mr. Diamond noted that staff claims that the later CUP supersedes this CUP. Furthermore, staff is stating that this mistake went on for years, thus allowing Mr. Roig's predecessor to provide Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 7 of 13 entertainment. Mr. Roig had went to City Hall and looked through the file and only found CUP 97- 30, expressing allowing entertainment. Mr. Roig did not see CUP 99-43 in that file. In conclusion, Mr. Diamond did not agree that the later CUP superseded the earlier CUP. Assuming that this is wrong, he noted that the City mislead Mr. Roig by telling him that he had a valid entertainment permit. Mr. Roig invested his life savings into this business. Mr. Diamond noted that Mr. Roig even signed a lease that expressly stated that the business needed to provide entertainment. The lease states that the landlord is to be notified within 100 days of Mr. Roig's ability to provide entertainment. If Mr. Roig was not able to provide entertainment, he needed to notify the landlord and exercise his option to terminate the lease. Mr. Diamond noted that Mr. Roig obtained confirmation from the City that he was able to provide entertainment in accordance with the lease. The City does not dispute this. Now Mr. Roig is stuck with a lease with four more years left to go, he can't cancel it and is now in a very difficult situation. Mr. Diamond noted that the purpose of the hearing is to decide whether the current Conditional Use Permit should be revoked, modified or allowed to continue. The City concedes that it allows liquor but does not concede that it allows entertainment. Mr. Diamond did not agree with this interpretation and asked the City Council to uphold the appeal and agree that Mr. Roig has the right to present entertainment. Mr. Roig needs to be able to do that in order to make the business survive economically. Mr. Diamond noted that staff takes the position that entertainment can't be provided but encourages Mr. Roig to apply for a new entertainment permit. Also, Mr. Diamond took exception to the allegation that Mr. Roig modified the building. The building was configured this way when he took over the property; no booths were removed. Also, Mr. Diamond noted that staff has said that even if he did not modify the building, he has an unpermitted establishment and needs to get the appropriate permits. Mr. Diamond did not understand in this economy why the City would gc out of its way to close a business. Mr. Diamond requested that the City Council make a finding that staff led Mr. Roig to believe that there was an entertainment permit in existence and that indeed there is a permit in existence. One of the later CUPS indicated that adult entertainment was allowed, which makes the case that entertainment was allowed at some time. Mr. Roig did not want to have adult entertainment, just bands, music, etc. There is no way this establishment can survive if just pizza and beer are offered. Historically, cities have been concerned about regulating businesses. Mr. Diamond noted that this business is in a shopping center, thus relieving the City of the burden of controlling the property. In conclusion, Mr. Diamond did not believe that it was fair to use a few isolated incidents to shut Mr. Roig down. He inherited the property and has cleaned the business up. Mr. Roig, owner of the Beer Mug, referenced the allegation that he had modified the interior of the building. He indicated that there were videos on Utube and inquired if they could be shown. Using Utube, Mr. Roig searched for videos regarding the Beer Hunter in Rancho and the search brought up nine videos. Mr. Roig played a video dated May 11, 2007, which showed a stage and a band playing on top of the stage. Mr. Roig stated that this video was taped of the building before_he took over the business. Councilmember Gutierrez noted that the video was satisfactory proof. City Attorney Markman noted that the video and the Zoning Affidavit need to be submitted into the record. He also inquired if there was anything else that Mr. Roig wished to submit for the record. Copies of the Zoning Affidavit and a print out of the computer screen were provided, which were copied and distributed to the Council and the appellant. Mr. Diamond noted the importance of the Council finding that the building modifications were not made by Mr. Roig. Mr. Diamond also noted that a finding needs to be made on whether Mr. Roig was led to believe that there was a CUP that expressly allowed entertainment and also that it was the practice and policy of the City to transfer permits. Lastly, a finding is needed that the previous permit was transferred to Mr. Roig. Mr. Diamond urged the Council to make a decision and adopt findings based on the evidence presented. In response to Councilmember Gutierrez, Mr. Diamond indicated that his client is not seeking permission to provide adult entertainment. However, he noted that a regular business on occasion Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 - Page S of 13 could present risque entertainment. City Attorney Markman noted that adult entertainment is not an issue. Mr. Diamond noted that Mr. Roig would accept a condition that adult entertainment not be allowed. In response to Councilmember Spagnolo, Mr. Roig indicated that he has had prior business experience. Mr. Roig stated that he had a prior restaurant with entertainment in Riverside and noted that the lease for the building was up. At that time, Mr. Roig leased the Beer Mug, noting that it was larger and less expensive. In response to Councilmember Gutierrez, Mr. Markman noted that there are other issues with the Conditional Use Permit. These issues were presented and discussed at the City Council meeting of September 1, 2010. Mr. Diamond noted that an isolated unprovoked incident is not a basis for revoking a Conditional Use Permit. Councilmember Gutierrez inquired if law enforcement has visited the establishment recently. Mayor Pro Tem Michael expressed a concern that Mr. Roig did not respond when he received the January letter. Mr. Roig indicated that his previous attorney believed that the establishment was in compliance. Eventually, he was advised to stop the entertainment, which he did. In response to Mayor Pro Tem Michael, Mr. Roig confirmed that there has not been any entertainment since June 1, 2010, except one isolated incident on June 8, 2010. Kit Bobko from Richards, Watson and Gerson provided the returned certified letters that were mailed to Mr. Roig. In response to Mayor Pro Tem Michael, Mr. Bobko indicated that the first letter was postmarked February 24, 2010. In response to Councilmember Williams, he read the address. In response to Mr. Markman, Mr. Bobko noted the letters date from February 24, 2010 to July 15, 2010. Mr. Bobko pointed out that staff had made a concerted effort to work with the applicant. He reported that a meeting was held on May 3, 2010 with Mr. Roig in order to address this matter. On the night of the Planning Commission, Mr. Roig offered live entertainment after agreeing to stop entertainment. Since Mr. Roig did not appear to want to comply, a decision was made to pursue revocation. Mr. Bobko prevailed upon the City Council to protect the community. He wondered what right the business had to allow five people to get shot two months after the business opened. He noted that it was irresponsible for the business to serve an underage young man to the point where he was almost killed. Mr. Bobko pointed out that someone almost dies every two months and inquired if the City Council intended to allow the business to endanger the public regularly. The timeline for issuance of the permits was identified. Mr. Bobko noted that CUP 97-30 and Entertainment Permit 97-03 were issued for the first business. Subsequent to that, the next owner asked for a CUP. CUP 99-43 was issued, which explicitly stated that no live entertainment was allowed. Mr. Bobko indicated that it may be the case that Mr. Roig was not told about CUP 99-43, but staffs mistake does not remove the City Council's action in approving CUP 99-43. In response to Councilmember Williams, the location of the timeline in the agenda packet was identified. In response to Mayor Pro Tem Michael, discussion was held regarding to the language in CUP 99-43. Mr. Bobko stated that no entertainment permit was in effect. Mr. Bobko noted that there was a clear break between the previous business and this business. He noted that this business attracts this type of people because they are not operating properly. Regarding the modifications, Mr. Bobko noted that Mr. Roig needs to be responsible for ensuring that the modifications comply with State building codes to ensure public safety. In response to Councilmember Gutierrez, Mr. Bobko noted that staff's objective was to gain compliance with the CUP. Mr. Roig has been recalcitrant about changing his business practices and conforming to City codes. Mr. Bobko noted that it is the City Council's obligation to protect the community. If the CUP is revoked, the business can still operate with beer and wine. In conclusion, Mr. Bobko recommended that the Mayor Pro Tem open the public hearing. Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 9 of 13 Councilmember Gutierrez inquired if Mr. Bobko would agree that the business would not last long without the entertainment. In response, Mr. Bobko noted that the City Council needs to weigh the livelihood of the business with the safety of the community and the burden on the taxpayers. Deputy Reggie Pahia noted that he participated in an undercover operation with his partner, Deputy Robert Baxter on October 1, 2010 and October 2, 2010. They were joined with two agents from the Alcoholic Beverage Control. Deputy Pahia reported that on October 1, 2010, the business was dimly lit and that there were disco lights on the west wall. The volume eventually went up very high so that you could not hear a conversation across the table. The Deputy saw several TV monitors showing various sports activities. He observed and identified the waitresses and security as well as the owner, Mr. Roig. Mr. Roig was behind the bar and the Deputy saw him consume approximately 3-4 shots. Some female patrons were scantily clad and Deputy Pahia saw some of them raise their shirts and expose their bare chests to Mr. Rod, who appeared to take pictures. Deputy Pahia and his partner stayed 4 I/2 hours, there wasn't organized dancing but people were dancing next to their tables. Also, someone came around offering free shots for the rowdiest party. Deputy Pahia indicated that they left the facility at 12:30 a.m. On October 2, 2010 Deputy Pahia stated that he return to the facility with his partner. There were fewer patrons, but the music was louder. The TVs were on displaying sports broadcasts. In response to Mayor Pro Tem Michael, Deputy Pahia stated that Top 40/Classic Rock was being played the first night and Hip Hop was played on the second night. He did not see a disk jockey. Shelly Scebbi addressed an incident that happened at the Beer Mug on May 8, 2010. She noted that she received a call at 1:51 a.m. on May 9, 2010 about her son, Jonathan. She was told that he was unconscious in Beer Mug's parking lot. When she arrived, the paramedics had put a breathing apparatus around his face, hooked him up to an IV and were in the process of taking him to San Antonio Hospital. The doctor at the Emergency Room told her that her son was suffering from the effects of alcohol poisoning. The alcohol in his blood measured 0.45 and Jonathon was still unconscious. The doctor told her that this was the highest level of alcohol that he had ever seen in his career. She was also told that if Jonathan's friends had waited any longer to call, that her son would have died. Mrs. Scebbi was mad at her son but she also questioned how anyone could let someone drink themselves into a hospital bed. When she tried to fit in the pieces of that evening, Mrs. Scebbi eventually discovered the owner's false statements in the police report. Initially, the owner had said that Jonathan was never in the bar. However, when he was confronted with the e- mail message that he had sent to another bar owner, the owner revised his statement and indicated that Jonathan must have snuck in through the back. Mrs. Scebbi indicated that this is contrary to Jonathan's friends' statements that they had walked in though the front door. Jonathan has indicated that he had sat at the bar drinking snowshoes, and remembers the bartender pouring at least six drinks that he consumed. His friends told her that they had stepped outside to smoke a cigarette and they were dismayed to see Jonathan being dragged out of the Beer Mug unconscious, bleeding from the forehead and supported on each side by a security guard. Mrs. Scebbi reported that the boys saw Jonathan being tossed into the parking lot like a sack of potatoes. Mrs. Scebbi did not know how Jonathan had hurt his head and was dismayed at the $10,000 hospital bill. All of this could have been avoided if identification had been requested at the door. It was very outrageous to her that Beer Mug was still open for business after breaking the law. Mrs. Scebbi begged that the City Council close the establishment or at the very least revoke their license to serve alcoholic beverages. Mayor Pro Tem Michael opened the public hearing. Christy Muscrillo (sp) stated that she works at the bar and submitted a petition to the City, which she stated contained 1,000 signatures in support of the establishment. She indicated that the Beer Mug was a very mellow bar. In response to City Attorney Markman, Miss Muscrillo indicated that she was a bartender and that she had collected the signatures from the patrons of the establishment. She disagreed with the notion that free shots were provided. Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 10 of 13 Ryan Hogan indicated that he has been a patron of the bar since it opened and visits the Beer Mug every Thursday night. He has never seen or heard any of the things being described. Mr. Hogan noted that he has never felt threatened or in danger. He stated that he has seen security checking for identification at 10:00 p.m. Mr. Hogan enjoyed going to the Beer Mug and supported keeping it open. Since all of this occurred, he has regretfully seen a decline in the patronage. James Gonzalez noted that he also goes to the Beer Mug every Thursday. They do not go to party, they go to talk, play pool and eat. Mr. Gonzales looked forward to going there each Thursday to see his friends. He stated that the owner is courteous and the staff is attentive. He has never seen any disputes or arguments, nor has he felt threatened. Mr. Gonzales was here tonight to support the establishment. Ed Dietl noted that he has never been to the Beer Mug but sympathized with the attention being placed on it. He noted that these businesses fill a need in the City and could name several places along Foothill that do not have an entertainment permit but provide entertainment. Mr. Dietl encouraged the City Council to offer the owner a chance to explain and to.work the matter out. In response, Mayor Pro Tem Michael inquired on the names of the other establishments, which Mr. Dietl declined to provide. Ronald Bennett stated that he works at the Beer Mug as a bouncer. He was working the night of May 8, 2010. On that evening, Mr. Roe did point Jonathon out as someone who needed attention. While taking him outside for air, Jonathan tried to resist and held onto the door. Once outside in the fresh air, Jonathan tried to hit him, but Mr. Bennett stated that he had stepped back to avoid the swing and Jonathan fell down and cut his head. Mr. Bennett stated that he rested Jonathan on the raised planter area and got him water and ice. One of Jonathan's friends came up and Mr. Bennett stated that he tried to calm him down and tell him what had happened. At that time, he had offered to call for an ambulance or a taxi, but was told that they had a vehicle. Mr. Bennett indicated that Jonathan's friend tried to pick Jonathan up but dropped him. Mr. Bennett stated that that another person arrived and that he helped both friends in carrying Jonathan down the stairs to the car. When he gat to the car, there was someone intoxicated and possibly unconscious in the vehicle as well bottles and cans lying around. Mr. Bennett stated that he went back to the Beer Mug to get the other bouncer and when they returned, the other guy was awake. He offered once again to call someone but was told that they had called the police. Mr. Bennett went back to the bar to let the police handle it. Mayor Pro Tem closed the public hearing Recess: Mayor Pro Tem Michael recessed the meeting at 9:21 p.m. Reconvene: Mayor Pro Tem Michael reconvened the meeting at 9:30 p.m City Attorney Markman noted that a mistake by staff does not result in an automatic entitlement. Regardless, assuming that an entertainment permit had been in place, such permits do not run with the land and must be renewed annually. The permit that Mr. Roig is referencing has since expired and has not been renewed. Mr. Markman referred the City Council to two Resolutions as well as 17 findings of fact listed on Exhibit A. The first Resolution granted the appeal and reversed the revocation of the Conditional Use Permit. The second Resolution supports the revocation and needs to be accompanied by the appropriate findings as determined by the City Council. Mr. Markman noted that Exhibit A is a comprehensive list of findings for consideration. He noted that the City Council should review each finding carefully to see if it can be supported. In response to Councilmember Williams, City Attorney Markman noted that the City Council would need to discuss any findings that she does not support. He proceeded to read each of the findings shown in Exhibit A. Mr. Markman noted that if the City Council believes that all the findings are correct, then Resolution No. 10-047 can be adopted revoking the Conditional Use Permit. If the City Council does not agree Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 11 of 13 with the findings, then Resolution No. 10-048 can be adopted upholding the appeal. In that event, no findings are necessary. Mayor Pro Tem Michael thanked the City Attorney and requested comments from the City Council. Councilmember Spagnolo noted that a lot of the blame falls squarely on Mr. Roig's shoulders. He was concerned that the incidents that took place were dismissed as insignificant. As a business owner, Councilmember Spagnolo noted that Mr. Roig needs to act responsibly and take the necessary steps to avoid these problems. He referenced the failure to communicate and noted that staff has admitted their mistake. Just because the patrons present at this meeting did not witness the problems does not mean that the problems don't exist. Councilmember Spagnolo wished that a system could be put in place to work with businesses to remedy situations before they get so out of control. Councilmember Gutierrez concurred with the need to be proactive, not reactive. He noted that these businesses appear to be pushing against the regulations as a way to survive the poor economy. The City needs to establish a system where staff can go out to ensure that all businesses are abiding by their permits. Councilmember Gutierrez gave Mr. Roig the benefit of the doubt on some of the issues before the City Council but he also believed the police officers testimony. Councilmember Gutierrez hoped that the business can work their way back. Councilmember Williams didn't believe that government should regulate morality; however, she did not feel that this business was being singled out. She noted that there must be some reason that all of these calls were centered on this one location. Councilmember Williams noted that there is an opportunity for the Beer Mug to acquire an entertainment permit. However, something needs to be done or someone will get badly hurt. Councilmember Williams supported the findings. In response to Mayor Pro Tem Michael, Finding #16 was discussed. Planning Director Troyer noted that the conversion of a restaurant to a bar is not allowed. Mayor Pro Tem Michael referenced the 100 day period in Mr. Roig's lease, noting that he had the responsibility to contact the City to see if a business with this type of floor plan was permitted. Also, he noted that there was very little, if any, attempt to address the issues in the January letter. Mayor Pro Tem Michael stated that he did not see any attempt by Mr. Roig to address the concerns, noting that Mr. Roig did not go to the police for help at any time. Mayor Pro Tem Michael pointed out that revoking the Conditional Use Permit does not close the business as they can still sell food and serve beer and wine. Also, they can apply for an entertainment permit. In response to Councilmember Williams, Building and Safety Official Huynh stated that Mr. Roig needs to work with the Building and Safety Department to ensure that the modifications were done in conformance with the code, regardless of who made the modifications. Regarding the application for any entertainment permit, the City Manager stated that the appropriate conditions could be attached to any approval to address specific concerns. MOTION: Moved by Spagnolo, seconded by Williams, to adopt Resolution No. 10-147 denying the appeal and including the Endings shown in Exhibit A. Motion carried 4-0, with Mayor Kurth absent. N. CITY MANAGER'S STAFF REPORTS The following items have no legal publication or posting requirements. N1. APPROVAL OF RESOLUTION SUPPORTING PROPOSITIO)r RESOLUTION NO. 10-154 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, IN SUPPORT OF PROPOSITION 22: THE LOCAL TAXPAYER, PUBLIC SAFETY AND TRANSPORTATION PROTECTION ACT OF 2010 Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 12 of 13 Fabian Villenas, Principal Management Analyst, presented the staff report. MOTION: Moved by Spagnolo, seconded by Gutierrez, to adopt Resolution No. 10-154. Motion carried 4-0, with Mayor Kurth being absent. O. COUNCIL BUSINESS The following items have been requested by the City Council for discussion P1. COUNCIL ANNOUNCEMENTS (Comments to be limited to three minutes per Councilmember.) Councilmember Spagnolo shared with the Council and the audience notable accomplishments of various Italian Americans. Councilmember Gutierrez noted that it has been a pleasure serving on the City Council. Councilmember Williams thanked Supervisor Biane for orchestrating the cleanup of Cucamonga Canyon last weekend. At today's SANBAG meeting, she reported that they accepted the City's offer to purchase the Etiwanda Depot property. Mayor Pro Tem Michael was proud that the City's credit rating went from AA- to AA. He noted the City's healthy reserves, prudent investment policies and strong Redevelopment Agency. There are no unfunded liabilities for pension benefits. 02. LEGISLATIVE AND REGIONAL UPDATES (Oral) Councilmember Spagnolo noted that the State has gone 100 days without a budget. He stated that a budget deal has been reached by the Big 5 which is scheduled to be reviewed and approved later this week. Councilmember Spagnolo reported on the Governor's actions in approving various bills. Lastly, he noted that Mayor Pro Tem Michael has taken on a leadership role at the State level by recently being appointed as the Member at Large to the League of California Cities Board of Directors. Q. IDENTIFICATION OF ITEMS FOR NEXT MEETING No items were identified. R. ADJOURNMENT Mayor Pro Tem Michael adjourned the meeting at 11:00 p.m. Res ectfully submitted, ~~ De ra L. McKay, MMC Assi tant City Clerk/Records Manager Approved: October 20, 2010 Redevelopment Agency, Fire Protection District, City Council Minutes October 6, 2010 -Page 13 of 13