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HomeMy WebLinkAbout2010/03/10 - Minutes - PC-HPC CITY OF RANCHO CUCAMONGA PLANNING COMMISSION MINUTES Regular Meeting March 10, 2010 Chairman Fletcher called the Regular Meeting of the City of Rancho Cucamonga Planning Commission to order at 7:05 p.m. The meeting was held in the Council Chambers at Rancho Cucamonga Civic Center, 10500 Civic Center Drive, Rancho Cucamonga, California. ROLL CALL COMMISSIONERS: PRESENT: Richard Fletcher, Frances Howdyshell, Lou Munoz, Francisco Oaxaca, Ray Wimberly ABSENT: None STAFF PRESENT: Adam Collier, Planning Technician; Steven Flower, Assistant City Attorney; Larry Henderson, Principal Planner; Joe Stofa, Associate Engineer; Lois Schrader, Planning Commission Secretary;James Troyer, Planning Director; Tabe Van der Zwaag, Associate Planner + w w x w ANNOUNCEMENTS I None w w w w w APPROVAL OF MINUTES Motion: Moved by Howdyshell, seconded by Oaxaca, carried 5-0, to approve the minutes of February 24, 2010 with one correction noted on page 6. PUBLIC HEARINGS A. ENVIRONMENTAL ASSESSMENT AND TENTATIVE TRACT MAP SUBTT18744 - FB Holdings, LLC -A request to subdivide 8.85 gross acres of land into 30 single-family lots in the • Low Residential District (2 to 4 dwelling units per acre) of the Etiwanda North Specific Plan, located on the north side of the SR-210 Freeway west bound off ramp at Day Creek Boulevard, and the west side of Stable Falls Avenue -APN: 0225-161-19, 32, 33, and 34. Related File: Variance DRC2009-00029. Staff has prepared a Mitigated Negative Declaration of environmental impacts for consideration. CONTINUED FROM FEBRUARY 24, 2010 (READVERTISED) B. VARIANCE DRC2009-00029- FB Holdings, LLC-A request to allow combination retaining and freestanding wall heights up to 24.5 feet to reduce freeway traffic noise related to the proposed development of 30 single-family lots within the Low Residential District(2 to 4 dwelling units per acre), located on the north side of the SR-210 Freeway west bound off ramp at Day Creek Boulevard, and the west side of Stable Falls Avenue - APN: 0225-161-19, 32, 33, and 34. 1215732.2 Related File: Tentative Tract Map SUBTT18744. CONTINUED FROM FEBRUARY 24, 2010 (READVERTISED) Tabe van der Zwaag,Associate Planner, presented the staff report. He noted that he received one phone call from a neighbor regarding traffic that may result from the project development. Mr. van der Zwaag informed the resident that the streets are designed to handle the increase of traffic that may occur. He mentioned that a mitigation is in place requiring the developer to purchase mitigation lands related to environmental impacts. Vice Chairman Munoz asked if the homeowner on the east side was contacted regarding the easement wall. Mr. van der Zwaag reported that they were contacted and that he has informed the resident that the gap in the wall will be closed but not until the development actually occurs. Stan Morse, MDS, stated he represents the project property owner. He said they agree to all the conditions including the purchase of mitigation lands. Chairman Fletcher opened the public hearing and noting no response, closed the public hearing. Vice Chairman Munoz reported that he reviewed this project at the DRC and that it is a standard application. Commissioner Howdyshell concurred and agreed it is straightforward. Commissioner Wimberly concurred. Commission Oaxaca concurred. Chairman Fletcher said it is a simple tract map and a variance that makes sense. Motion: Moved by Wimberly, seconded by Oaxaca, to adopt the resolutions approving Tentative Tract Map SUBTT18744 and Variance DRC2009-00029 as presented with the adoption of the Mitigated Negative Declaration of environmental impacts. Motion carried by the following vote: AYES: FLETCHER, HOWDYSHELL, MUNOZ, OAXACA, WIMBERLY NOES: NONE ABSENT: NONE - carried C. REVIEW OF CONDITIONAL USE PERMIT DRC2007-00283R-EL LOCO CANTINA&GRILL- A public hearing to examine the business operation to ensure that it is being operated in a manner consistent with the conditions of approval or in a manner which is not detrimental to the • public health, safety, or welfare or materially injurious to properties in the vicinity. The Planning Commission will consider revocation or modification of the approved Conditional Use Permit. Located within the Industrial Park District (Subarea 7), in the Masi Plaza at 11815 Foothill Boulevard-APN: 0229-011-38. Related file: Entertainment Permit DRC2007-00284. Continued from January 13, February 10, and February 24, 2010. D. REVIEW OF ENTERTAINMENT PERMIT DRC2007-00284R- EL LOCO CANTINA&GRILL- A public hearing to examine the business operation to ensure that it is being operated in a manner consistent with the conditions of approval or in a manner which is not detrimental to the public health, safety, or welfare or materially injurious to properties in the vicinity. The Planning Planning Commission Minutes -2- March 10, 2010 1215732.2 Commission will consider revocation or modification of the approved and Entertainment Permit that allows live nightly entertainment and dancing within an existing restaurant. Located within the Industrial Park District (Subarea 7),in the Masi Plaza at 11815 Foothill Boulevard - APN: 0229-011-38. Continued from January 13, February 10, and February 24, 2010. Larry Henderson, Principal Planner, presented the staff report. He noted that the information used to formulate the report for the September 9, 2009 meeting was not complete. He added that a letter • dated March 2, 2010, was received from the applicant's attorney and was forwarded to the Commission under separate cover and has also been placed before the Commission on the dais and the comments contained within it have been addressed. • Deputy Clark gave a PowerPoint presentation highlighting the Sheriffs Department investigation (DVD on file). He said he and his partner, Deputy Wright are part of an educational/compliance team for businesses that have alcohol licenses. He noted they are investigating multiple locations and their goal is to ensure public safety. Chairman Fletcher asked for the position from which the still photos in the Power Point presentation were taken. Deputy Clark replied that the photos were taken from the south facing north. He noted that many of their pictures were taken off the internet through simple Google searches and through the website for radio station X103.9., and from flyers that were found on the ground in the parking lot after hours; some of which are very provocative. He said regarding their security, the officers spent several weeks in the Loco Cantina parking lot and never saw a guard. He indicated that the owner (Jose Sambolin) claimed he had a guard there every night when there was entertainment and produced a copy of their contract with Nefretiti Security. As shown in the PowerPoint, the copy given to the deputies indicates it was canceled on 9/15/09. Deputy Clark said Nefretiti Security disclosed that Loco Cantina required them to get management support to make contact with patrons that were drunk and they were often deterred and were told to let those things go. Deputy Clark said they observed loitering patrons after closing, patrons urinating in the parking lot, and sex occurring in vehicles in the parking lot in front of the business. Chairman Fletcher asked if the outdoor patio is available after hours. Deputy Clark said, no, the Cantina staff usher people out of the building, some flow out onto the patio and then out to the parking lot from there. He also noted that Loco Cantina got a new contract for security on 12/18/09 for 4 hours only on specific days, and it too does not satisfy the conditions. He reported that the ABC is conducting its own investigation and that the preliminary findings indicate that 95% of their sales is in alcohol and 5% is food sales. He noted that ABC rules require 50% of their sales to be for food. He said Mr. Sambolin provided receipts for his purchases of food from vendors and not his sales receipts from the restaurant sales. He reported that the video clips in the Power Point presentation are fairly typical of what they observed on Friday and Saturday nights and that according to an internet site, Loco Cantina has been voted the 5'h Best Dance club in the area. He noted calls for service including the arrest of 3 minors (drunk in public and a DUI), fights, a paroled patron brandishing a gun, an alleged rape and violations of the Entertainment Permit. Chairman Fletcher asked about the 3 minors that were arrested; he asked if they entered Loco Cantina and if their I.D. was checked and if it was false I.D. Deputy Clark responded he did not know. Planning Commission Minutes -3- March 10, 2010 1215732.2 Chairman Fletcher noted a patron dressed as a security guard was chugging beer in the video. He asked if that was Loco Cantina's guard. Deputy Clark said they believe it is just a patron. Chairman Fletcher invited the applicant's attorney to comment. Bruce Evans of Solomon, Saltsman &Jamieson, stated he represents the owners of Loco Cantina. He informed the Chairman that he would like to cross-examine some of the City's witnesses, Mr. Henderson and Deputy Clark. He said there are others here that would like to speak on behalf of the applicant as well. Steven Flower, Assistant City Attorney, explained that if he has specific questions of specific persons, he may direct them to the Chairman and then Chairman Fletcher may call upon them to answer them, but that cross examination is not required for this venue. Mr. Evans thanked the Commission for granting the previous two-week continuance but asserted it did not cure the defects of the case and he felt sure the Commission was prepared to revoke the permits. He said to revoke should be the last resort, an extraordinary remedy and to be used if there are no reasonable alternatives, that it is not the role of the Commission to punish the business owner. He referred to a letter dated March 2, and noted that the lapse in security was a dumb mistake. He said management was unhappy with the guard they sent and they requested a different guard. He said the evidence given in the staff report is largely hearsay because the incidents were not actually witnessed by the deputies. Chairman Fletcher remarked that Mr. Evans' comments would also be considered hearsay. Mr. Evans said a review of the business in September of 2009 indicated the business was in compliance and they did not change their operations, but now the City says everything is terrible. He suggested the City approach this with a clean slate. He distributed a document he said was supplied by the Sheriffs Department (Sheriffs Call History from 1/1/2009 to 12/31/2009-copy on file). He called into question several of the incidents. He noted that the report says the suspects said they were drinking at a"local cantina" not Loco Cantina. He refuted the reports of fights and a DUI and other incidents that did not occur within the business. He claimed there was no verification of the reports and he suggested the incidents are in conflict with the reports provided by the Sheriffs department. He said the Commission should judge fairly and noted that they gave Omaha Jacks a reprieve which had more calls for service. He produced a chart that he claimed showed a comparison of several similar business uses and their calls for service. He said Loco Cantina has one of the lowest calls for service for 2009. He said they made mistakes but they are not the worst in town. He said he felt the problems could have been solved with a phone call from the City and not 40 days of undercover surveillance. He said the staff report is not fair or balanced and that this is an unfair hearing process. Chairman Fletcher confirmed with staff that Mr. Evans received the same reports as given to the Commission in the staff report. Steven Flower indicated that is correct. Chairman Fletcher asked Mr. Evans if he believes these police reports are fabricated and do not relate to Loco Cantina. Mr. Evans said he is not questioning the credibility of the Sheriffs reports but suggested the Commission ask if this business has had a full opportunity to defend themselves. Planning Commission Minutes -4- March 10, 2010 1215732.2 Chairman Fletcher noted that Mr. Evans tried to refute everything that was said and that was presented and that he has not presented one thing about what type of business is being run. He said he would like to hear about their restaurant operation. Mr. Evans claimed that the burden is on the City because most of what is in the Sheriffs report is what the deputies were'told and not what they were directly part of. He said there is much information that was not given to them. Chairman Fletcher remarked that there is evidence that the business is being operated as a nightclub and not a restaurant. Mr. Evans said it is only about 2500 square feet and they were authorized to have a bar, entertainment and a D. J. He asserted the Commission does not like them. He claimed it is one big open room and it does not fit the Commission's notion of a family restaurant and they are just doing what they are authorized to do in terms of the entertainment. James Troyer, Planning Director, pointed out that patrons are dancing beyond the 150 square foot area. Chairman Fletcher asked Mr. Evans to tell the Commission how they are operating within their permits. Mr. Evans indicated that what is in question is the character of the business and the crowd there. Chairman Fletcher reiterated that they are not operating within their permits. Mr. Evans said he already admitted to the mistake regarding the security but its kids having a good time. He asked if shaking hips are a public safety issue. He said it is not the role of the Commission to judge that. He said Foothill Boulevard is a graveyard of closed businesses. He said the City has the burden and that the City better have compelling evidence because the City has prejudiced the business owners to a fair hearing. He said the business is authorized for entertainment after 9:00 . p.m.; there have been no complaints of noise; the report of September 2009 was ok; they have successfully completed multiple inspections; and there were no calls for service until they were targeted. He said they made mistakes but there is no justification for shutting the business down. He said they made a discovery request and the City never responded. He said the City never produced this video or pictures,there was no cross-examination and no documentation for many of these incidents. He reported that they offered concessions such as giving the City$5,000 per year for a trust account to be used for police costs, cutting the entertainment at 1:30 a.m.,ABC training for their employees, last call for alcohol at 1:20 a.m., house lights up at 1:40 a.m. and no alcohol ordered after 1:40 a.m. He reported that he has not received any constructive input from staff. He said they should not revoke the permits in this economy and out of fairness compared to Omaha Jacks. He said if the Commission does not have to revoke, then they shouldn't. Chairman Fletcher asked Mr. Flower to comment on the purpose of the Planning Commission as it relates to Mr. Evans' remarks about punishing business owners. Mr. Flower explained that the purpose of the process is to determine if the business is operating in compliance with their approvals and if it is in the general public welfare. He said code violations can be handled punitively as misdemeanors. He said this is not a punitive process, it is a land use regulatory process. Planning Commission Minutes -5- March 10, 2010 1215732.2 • Mr. Evans said the City should work with this business so that everyone can get along rather than running up the cost for the City by scrutinizing this business. He complained about not being allowed to cross-examine. Mr. Flower said there is no right to cross-examination in this forum, but if Mr. Evans has specific questions, he can direct them to the Chairman, who can call upon witnesses to answer them. Mr. Evans left the podium without further comment. Jose Sambolin stated his home and business are in Rancho Cucamonga and he has investments here. He said he worked with staff in 2008-09 to be a good business and he said they improved food sales, off-day sales, improved their police service call record, and stayed in compliance. He said in mid-2009 he contacted Planning for a 6-month compliance report. He said he was told the business was in compliance. He said in 2009 they increased their annual sales by 7%in food sales and non-entertainment sales, his 2010 sales are even better, and he has 26 employees. He said they permanently affixed certain tables to the floor so that they cannot be moved, it is not a large building and he cannot stop people from dancing as they move around. He reported that the managers and employees all attended the ABC class and his intent was to comply. He said in 2009 he made corrections immediately as soon as he became aware of what needed to be corrected. He said he met with the property managers regarding the awning on the building; apparently it was done in 2002 without proper permits prior to his involvement with the business. He said the canceling of the security guard was not intentional, it just got overlooked and it was not in effect for just under 3 months and that they are fully covered now. He said any calls for service are bad but the records show that Loco Cantina is better than other businesses but he admitted Loco Cantina could do better. He said if he had received the staff report sooner he could have corrected more before the meeting. He said some of the pictures shown were taken on Halloween and that was unfair representation - he referred to the male shown with no shirt. He said the advertisements shown were not ads that he produced. He said anyone can do anything with a computer these days. He claimed the DJ did some himself. He reported that they are always incorporating food into their ads. He said when patrons leave at night they exit the building, clear the patio and see that the people get to their cars. He said they do not want them out there. He said he respects Omaha Jacks and that they were only mentioned as a comparison. He said there are no jobs out there and that his business generates 1 million dollars in tax revenue and there is already a vacancy problem in Rancho. He said revocation would have a negative impact and he should be allowed an opportunity to correct the problems. He noted that just 6 months ago he had a good report. Chairman Fletcher asked if the pictures shown tonight are representative of his nighttime business. He remarked the pictures look like it is overcrowded, shoulder to shoulder, patrons carrying drinks and dancing with drinks on the dance floor. He noted the picture of a person on the bar blowing a whistle. Mr. Sambolin said, no,they are not representative and it was a patron on the bar. He said he could guarantee that person was told to get down immediately. Chairman Fletcher remarked that he searched the internet himself and all he saw was references/ads for a nightclub. He saw no ads for a family friendly restaurant that Mr. Sambolin was sternly warned about in a previous review meeting. He said that if Mr. Sambolin had other advertisements, he should have brought them to show. He remarked that the person that made the video must have done it with his permission, that normally when people show up with a large camera for filming, the business would have to grant permission. Mr. Sambolin said the internet targets the younger crowd and that the students that did the video had a game plan. He claimed this video was not done with his permission. He said he has hind Planning Commission Minutes -6- March 10, 2010 1215732.2 • sight about that now; people act differently on camera. He said he does not allow people to stand on the bar with a whistle and that he does not overcrowd the premises. He said it looks overcrowded on the dance floor but it is just how the picture was taken and that is why it looks that way; he does not need to overcrowd the building as that would be bad for business. He added it is an unfair snapshot. He reported he has passed fire inspection 15 times. He said the websites show food, alcohol and entertainment; they crank it up at 10:00 p.m., and open up the tables. He said they have never overcrowded his place. He claimed the Fire Department has checked them many times and they are not even close to being overcrowded. Chairman Fletcher remarked that it looks like a nightclub environment and not a restaurant. He asked if the picture gallery on X103.9 is also a misrepresentation. He noted the pictures of patrons and the DJ are flashing signs. He expressed concern about what they mean. Mr. Sambolin said they are not gang signs, he thought it means peace. He said about 60% of the evening crowd is from the local apartments and that they are busiest on Thursday, Friday, and Saturday nights. He reported Sunday nights are a totally different crowd, mostly off-duty Victoria Gardens' employees. Chairman Fletcher noted that many of the pictures are from various events on differing days and they are flashing signs. Mr. Sambolin said he begged the producer of the video to remove it from the internet; he even offered him money. He said they are emphasizing the entertainment on the internet and he said he has no control over that. He said on My Space the full menu is shown. Chairman Fletcher said he did find the menu and that his concern is not with their daytime activities; the concern is at night, after closing, incidents outside the bar and that it is a bar or more of a nightclub at night. Mr. Sambolin remarked that no one in the industry would call it that. He claimed to have a great deal of experience in the industry and that others in the business would say it is a bit of a joke as a nightclub. He said it might fit with Webster's definition but not in the industry standard. He said it is just a bar and a restaurant with entertainment. Mr. Sambolin said that there is no dance area during the day, so they move tables out at night to expose that area. He said during the daytime there is no dance floor and there is not the ability to expand that dance area with or without their consent. He said the patrons are just moving to the music on the patio; they are not dancing. Robert Jakucs, a private investigator, stated he was hired by the applicant's attorney and said that he went to Loco Cantina on two separate nights. He said he toured the facility, was shown the kitchen area and the incident logs kept by the business if the police come to the business. He reported what he observed. He said on Friday, February 5, 2010; a male security guard (may have been the guard hired by the center) and a second security guard; 5-6 patrons in front; 2 employees checking I.D's and using a counter; he said he observed 6 security personnel at the business; he heard the last call announcement at 1:20 a.m.; lights came up at 1:40 a.m. and all patrons were out at 1:50 a.m.; he saw security personnel moving patrons away and by 2:10 a.m. most everyone was gone. On Saturday, February 20, 2010 he said he went unannounced. At 11:45 p.m. 25-30 people were lined up next to the building and there was a crowd on the patio, there were uniformed security walking the location and also carding people; he noted he stayed outside and did not go inside at all; at 1:27 a.m. last call, at 1:39 a.m. the lights came up, at 1:57 a.m. all patrons were out and he observed one Cantina security guard on the sidewalk; at 2:00 a.m. he saw 3 to 4 persons in the lot and 2 Cantina security were picking up bottles in the lot. Commissioner Howdyshell asked when the private investigator was contracted to visit the Cantina. Planning Commission Minutes -7- March 10, 2010 1215732.2 Mr. Jakucs stated in late January or early February, he was not sure, as he did not have his records with him. Vice Chairman Munoz asked who hired him. Mr. Jakucs stated the applicants' attorney hired him to evaluate the premises. Chairman Fletcher noted that he was hired after the public hearing notice had been published. He asked if he observed 'partying' on his Friday night visit, he asked if it looked like a typical night club. Mr. Jakucs said that at 10:00 p.m., people were dancing, it was not jammed up, nor a full house; perhaps more so later but he went inside only briefly at the end of the evening. Vice Chairman Munoz asked what he observed most inside, eating or drinking. Mr. Jakucs said it was not crowded, he saw some drinking at the tables, he did not recall seeing drinking on the dance floor and he saw plates of food in the kitchen and kitchen personnel. Vice Chairman Munoz repeated the question and asked what he saw most in the restaurant, drinking or eating. Mr. Jakucs said the majority of patrons were dancing and there was some drinking. He noted he was not looking for food. Chairman Fletcher asked for the specifics as to why he was hired. Mr. Jakucs said to evaluate the premises, the parking lot, closures, and how the security personnel were acting. He said there was a D.J. both nights. Felipe de la Piedra, affiliated with Loco Cantina, said his main function is to oversee the food part of the business. He said he works with Mr. Sambolin and management staff on food quality. He noted his marketing efforts with the Chamber, school fundraisers, teams, the Quakes Stadium, Los Osos High School and a golf tournament. He said they have food promos, and coupons in the Daily Bulletin and that he caters lunches out to businesses. He said they are working on a new food menu that is more kid oriented. He said they are always working on their food services and he has always taken pride in it. Commissioner Howdyshell commented that he is highly recognized as being active in the community as a restaurant owner and caterer, but that with the current partnership, she asked if the character of his business has changed. Mr. de la Piedra assented that it is a different style but food is still emphasized. Commissioner Howdyshell asked if he is involved in the entertainment portion of the business. Mr. de la Piedra replied that he mostly deals with the food but sometimes when he returns to Loco Cantina after a banquet he might stay and help out and he asks the patrons if they like the food. Commissioner Howdyshell asked if he is there near closing time. Mr. de la Piedra stated that it is sometimes until 9:30 p.m., 10:30 p.m. or 11:00 p.m.; he is there most often earlier in the day. Planning Commission Minutes -8- March 10, 2010 1215732.2 Chairman Fletcher stated he knows Felipe personally from the Chamber activities, but that they have not done business together; and he is aware of his activities in the community. He reported that the Police Department has indicated that 95% of their sales are for alcohol and only 5%for food sales. He asked for comment on that. Mr. de la Piedra stated that is totally off. He said they are working on a happy hour promo and they are working on their lunchtime business. • Chairman Fletcher asked if Mr. de la Piedra sees the books (financial records for the business). Mr. de la Piedra stated no, he is only familiar with the food part and that Mr. Sambolin would have to speak to the late night financials/alcohol sales. He said he (Mr. de la Piedra) sees the invoices for the food vendors. Chairman Fletcher said the concern is not with the daytime activities; the review of the business is because of what happens during the night time and problems related with that. Mr. de la Piedra asserted that they serve a lot of food until 1:00 a.m. and he is aware the invoices are bigger. Chairman Fletcher opened the public comment section. Brian Bobo stated he is a member of the community and was a past member of the Commerce Ambassador Core of the Chamber of Commerce. He stated he saw the pictures and video presented and inferred that some may have their own agenda including the promotion of the radio station. He said he has designed websites for 15 years and that risque pictures draw people to the website. He said the patrons are just having fun; Jose is an entrepreneur with 26 hardworking employees and Felipe is a good friend. He said people will do what they want to do and there is no other place in the community to enjoy a drink with a meal. He said he would hate to see a fellow entrepreneur start over in a new community in this tough economy. Brian Cook, General Manager of Loco Cantina, stated he has been a restaurant manager for 16 years and to revoke the permits would be devastating. He said the combined experience of him and 3 other managers at Loco Cantina totals 31 years. He said they have increased their lunch and dinner business with advertisements. He said they have very minimal problems at Loco Cantina and their goal is to run a smooth business. He said from a security perspective their security people are told not to bully people or assault customers and they do not encourage over-serving, or service to minors and they check I.D.s using key employees that are certified. He said he personally asked the lady to get off the bar. He said they cannot control people's actions; they can only correct their actions. • Chairman asked about a photo of a woman standing on the bar with a whistle. He remarked that you do not hear of these types of problems happening at other restaurants. Mr. Cook said she was having a good time, people do these things even when someone scores a touchdown, he could not say why she did that. Chairman Fletcher noted that the internet promotes this party scene and it could cause problems. Mr. Cook said people want a place like 'Cheers' for fun, food and atmosphere and a good time. They want people that spend money, eat, hang out and be good patrons rather than individuals the Chairman described. Planning Commission Minutes -9- March 10, 2010 1215732.2 • Chairman Fletcher commented that X103(radio station) promotes the party atmosphere and this is what attracts people to their location. He said if this is what the business promotes than they will have resulting problems. Mr. Cook said X103 is a rock station. He said they play rock music, but they do not promote people getting crazy or drink, drink, until they drop and he often offers customers cab rides home, he offers them food/coffee or they encourage them to walk to Denny's. He referred to page 80 of the agenda packet and noted that the 2 undercover Police officers did not observe patrons in the restaurant at 2:30 a.m. He said he was there and they were employees that had already changed their shirts to street attire following the cleanup of the restaurant. He said everyone leaves by 2:10 a.m. at the latest but the report said 15 individuals were there until 2:30 a.m. He maintained the report was wrong. Julie, an employee of Loco Cantina, stated she works and is a student. She explained that the "signs" people give means "rock star" and is not a gang sign. She said Felipe gave lectures about food service and they are reminded that it is a restaurant first. She said they are instructed to check I.D.s, she serves water and she knows the alcohol service guidelines. She has been instructed to get a manager if there is a problem. She said she asks customers if they want the taxis number if they seem too intoxicated to drive. She said she appreciates her job and income and she is close to receiving her degree and they try to learn from their mistakes to prevent them in the future. David Guierra, a resident of Rancho Cucamonga, a patron of Jose's bar(referring to Loco Cantina) said he is a locksmith by trade. He said he comes to"Taco Tuesday"with his son and then comes on Friday and Saturday nights. He said in 1.5 years there, he has not experienced any crazy stuff; he has 3 drinks and that is it. He said he always drives his company vehicle and he does not take chances. He said sometimes he 'dances' in the chair, he can't control that. He said food is available. He described himself as a 42 year-old in mid-life crisis; he has 10 employees of his own and he believes this is a safe environment. He said he sees the Police Department in the parking lot there all the time. He said he goes there for dinner, he mingles, it is a well run establishment, it is an asset to the community, and they create business for each other. Steven Flower, Assistant City Attorney, explained that there is a second attorney for the City that is present, Kit Bobko, assigned to be an advocate for staff. He (Mr. Flower), explained that he (Mr. Flower) is not involved in presenting staffs case because there is an ethical wall between he and Mr. Bobko. He stated that he (Mr. Flower) is there to only represent the Commission. Mr. Bobko stated he is Counsel for the staff. He commented on the issue of hearsay and strict rules of evidence. He noted that the strict rules of evidence do not apply here and that the Commission can rely on any credible evidence that they wish and they may draw reasonable inferences towards making their decision. He said an example would be the issue of security(referred to pages 86&87 of the agenda packet) and why the security contract was canceled. He noted that the deputy's report is in conflict with the declaration of the applicant. He said it is not the Commission's job to decide if someone is telling the truth, but that if using what is presented to them and it is reasonable for them to draw reasonable inference that there is no reason why the deputy would do anything but tell the truth, or if they believe it was deliberate that the security contract was canceled. He commented on the owner's comment that "it is not the worst place in town." Mr. Bobko said the comparison is not applicable, it is not the standard that was set. He said what does apply are the standards from 2008 and what the Commission gave to the applicant in a modified CUP. He said the photos presented are in staffs opinion, fairly conclusive. He noted the minutes of the September 10, 2008 meeting (pages C&D 12 & 13 of the agenda packet),the applicant assured the Commission their business would be similar to a TGI Friday's or Buffalo Wild Wings. He remarked that based upon the evidence presented, he is unsure this is what they got. He said the Loco Cantina is clearly not operating in conformance with the CUP. He said in response to the owner's Planning Commission Minutes -10- March 10, 2010 1215732.2 question as to why the Sheriffs have not talked to them and their expression of, "If we had only known!" He noted that in 2008 the same questions and answers came forward and they had put the business on notice as well. He said regarding Vice Chairman Munoz' comment about safety; the applicant knew what the rules were and he decided he could make more money doing business this way. The business 'morphed' from a restaurant to a bar and the owner is responsible. He said the business has decided the City should pick up the tab for their collateral damage that the business owner has imposed on you. He said it is the Planning Commission's duty to keep the community safe, to protect the residents,the businesses nearby and the resources that are expended to police this business that should be policing themselves. Steven Flower suggested the owner be allowed to rebut Mr. Bobko's remarks. Mr. Evans said the City gave them the entitlements to have entertainment, a type 47 license with the requirement to serve meals; they should not revoke the permits because it morphed. He said maybe the business has been too successful and the character of the business should not be grounds to revoke and it really isn't necessary. He noted that Loco Cantina is using less City resources (such as life safety-Police/Fire)than other businesses in town. He said he did not think these are the same questions as before; and there have not been excess calls for service. He • noted he hired Mr. Jakucs because he would report what he saw and he knew he would give an independent report. He noted Mr. Jakucs is a former LAPD detective, vice cop and marine. Chairman Fletcher commented that he did not believe Mr. Jakucs' testimony to be particularly relevant because he came on board after the hearing/review process had started;the business was already on notice and therefore it did not carry much weight because the Commission would not expect to hear anything different at that point. He remarked that Mr. Sambolin's testimony was deceiving regarding the security officer and that it was his(Chairman Fletcher's)impression that he lied to the officer regarding the security. Chairman Fletcher asserted that he wanted to provide opportunity for the business to show us something different. Mr. Evans said it was improper for Mr. Fletcher to do his own research and he should not be voting on this case. Chairman Fletcher asserted that it was not improper for him to do some independent investigation in hopes of finding something or information to the contrary so that the Commission would not have to make a negative decision. Mr. Evans said that if the Commission was really interested in giving a fair hearing, they should ask themselves why the documentation of the police reports in the staff report do not jive with the report that was provided to the applicant by the police department (copy on file). Mr. Sambolin said that he was unhappy with the person the security company sent; it was not the right fit. He said he(Mr. Sambolin) called them and he (Mr. Sambolin)was rude to them and said he would not pay them. He thought they would send just someone else. He said his manager saw what he thought was the new guy, but apparently it was the guard hired by Masi Plaza. He said there was a misunderstanding with the officers when they asked him for the contract for the security guard and their request for the receipts(food and alcohol sales). He said he got them copies within 24 hours at a great expense but he had not provided the right ones. He thought he was missing two invoices from the security company but what occurred was that after his conversation with them, they cut the service. He admitted he messed up. Chairman Fletcher asked if he did not notice he did not have a security guard for two months. Planning Commission Minutes -11- March 10, 2010 1215732.2 Mr. Sambolin said that when the officer made him aware of the situation he had someone in 24 hours. Chairman Fletcher asked again if he did not know that he did not have security for 2 months,that he . did not ask anyone and he did not check himself to see that he had anyone. Mr. Sambolin said there was some confusion;their main focus was the parking lot(therefore he was not as aware). He said he thought he had completed his 6-month review in June, but he never saw the September report, nor was made aware of it, and it was not published. He said he should not have lost his temper with the security company and he should have paid attention to the security in the lot. He said his weekend labor costs are $900 per weekend day/night and the security guard is $14 per hour. He said even the private eye had some confusion over whose security guard it was. He said it was an honest mistake and a big mistake that would not happen again. Chairman Fletcher closed the public hearing at 9:45 p.m. Chairman Fletcher commented that the Planning Commission does not make a trade off of the public health, welfare and safety of the City for economic purposes. Mr. Troyer noted that Resolution 10-12 would revoke the CUP which includes the ABC license and Resolution 10-13 would revoke the Entertainment Permit. He noted that staff recommends approval of both resolutions. Vice Chairman Munoz said he wanted something noted for the record. He stated that Chairman Fletcher has been the strongest advocate for businesses on this Commission. He said he (Mr. Munoz)took exception to the characterization of Chairman Fletcher as being anti-business which is what he heard from Mr. Evans. He said Chairman Fletcher advocated that another restaurant just one month ago be allowed to keep their license and permits. He added that this is the not the first, but the second time Loco Cantina has been brought before the Commission for similar problems; there have been a number of police calls and responses to this location;the environment created for the public at large is not safe and most of the tenor of business ads and flyers talk about cheap drinks and a party atmosphere, not a restaurant; the video validates the evidence provided; it is a nightclub, not a restaurant; this is not what the Planning Commission agreed to when the Commission provided for the Entertainment and the modification of the CUP for extended hours. He said there is no crime when a duly permitted business sells alcohol or makes money from that, and the City encourages that, but this business targets young people/inexperienced drivers with excessive amounts of cheap liquor. He said it is not about costumed D.J.'s, nor about going beyond the boundary of a dance floor, it is about the public and those who move here because they believe it to be a safe community. He added that this business puts inexperienced, young people on the same roads as our families and it is all being done for profit, and that is not acceptable. He noted that in the record they gave Loco Cantina a second chance, this is their second time here and Mr. Sambolin has a history of running a loose ship. He mentioned that Mr. Sambolin said he was associated with Margarita Beach, a business the City had numerous problems with. He said the Commission takes this very seriously; it is a tax paying restaurant that is doing well and employs many people, but is it worth one person getting hurt or killed. He said is it worth having someone not going home tonight because there is something at your restaurant that is the catalyst. He said it is disingenuous to believe this is a restaurant. Commissioner Howdyshell said when the restaurant came before us with their previous request the Commission expressed concern and everyone discussed this in light of the tough economy. She said that at that meeting, the Commission thought it might be beneficial to help the business. The Commission emphasized that doing business in Rancho Cucamonga is a privilege and with that comes recommendations, obligations, and commitments and follow through. She said she has read Planning Commission Minutes -12- March 10, 2010 1215732.2 all the evidence and listened to the testimony. She said it is unfortunate that in this City this establishment has had 50 calls that are health and safety related and that is unacceptable. She said maybe the food part is doing well, but all the calls are from the late hours and are alcohol related and because of the reputation of this business and how it is being marketed. She said it is not wrong to market the business as a bar or nightclub as long as the health and welfare of citizens in this City are not jeopardized. She said that it is unacceptable for the management to not be in touch with the business and to ask for leniency is unacceptable. She said one person urinating in the parking lot is one too many, it is not hearsay and is unacceptable. She said she is disappointed that they have to address this issue again. Commissioner Wimberly concurred with all the previous comments and said the evidence brought forward cannot be denied. He said based on that, the restaurant is operating outside the bounds of their CUP and Entertainment Permits. He said his concern is since their extension of hours and the granting of the Entertainment Permit in 2007, service calls are up within proximity of the business address. He said from a human perspective, the unfortunate evidence shows the business is a clear and present danger. • Commissioner Oaxaca remarked that he is the newest member of the Commission and that his view may be different because he was not part of the previous conversations or concerns related to the business operation in the past. He said that regarding the calls for service; he is not so focused on the number of them, numbers are relative, other businesses are larger, and the calls are just a symptom. He said he is not comfortable with the presumption that staff or the Sheriffs are held responsible to assure that the applicant is compliant. He said the burden for that is on the applicant and there are clear examples this has not occurred. He said with this in mind it is difficult to look at a later review date in hopes that this would occur. He said he is aware of the challenges of running this type of business in this type of economy. He said this City encourages success of food businesses and the primary function of the Commission is to balance the considerations that lead to a harmonious relationship with businesses along with the welfare of the community. He noted several occasions in the record where it came into question whether the existing permit is still the appropriate type of permit for this business as it has changed and he understands how a business has to evolve and if we should continue to give them chances. He said if we allow the business to continue we will most like see the same issues in a few months and he does not believe full compliance is possible; it is like trying to fit a round hole in to a square peg. Chairman Fletcher remarked that it does get difficult and he appreciated Vice Chairman Munoz' remarks. He said he is the strongest advocate of business of the Planning Commission and it is one of the reasons he was appointed to the Commission to bring in the business perspective. He said he is active in the Chamber of Commerce. He said it is hard to see friends before him when hard decisions have to be made. He said this is a land use decision;they have been given chances;they. know what the permits allow. He noted that after the first review and some scolding and chastising, the business owner should be looking at those permits and if they don't they risk losing those permits. He added that it is not up to us to police them, it is the owner's responsibility. He added that this is not their first time before the Commission; in 2000 they received a CUP for the restaurant; in 2007 they received an Entertainment Permit and modified hours with the intent that the Commission would be helping them be more competitive/successful. He noted that the Commission may have given them more than what they requested. He said they the City found out later that Mr. Sambolin was going to buy the restaurant after the hours were extended. He referred to the Code regarding revocation and noted that one of the criteria is if anyone makes any false or misleading statements regarding the application. He said that the Commission was mislead from the very .beginning as to what the intent of what the business would be. He said in 2008 they received modified conditions and in September of 2009 the operation seemed to be compliant but after the report they promoted the night time entertainment and the problems started again. He said it was brought forward for review in December 2009 at the request of the Sheriffs Department, and it was Planning Commission Minutes -13- March 10, 2010 1215732.2 continued in January and February. He said it is not as if this was a spur of the moment thing, it was made clear what the use should be. He said the incident reports happened outside and late at night and involved patrons of the business and he believes it is because of the business promotions. He said from previous hearings the business knew the requirements for security and he said he did not believe the owners regarding any miscommunication and he did not believe the owner did not know they did not have security in force and if he did not know, he should have. He said the private investigator went out to the business after all the concerns were known, and therefore, nothing different was expected from his report. He said the long term surveillance of the facility by the Police was more relevant-40 hours over the course of 16 days. He noted there were fights,drinking in the lot, urinating in the parking lot, an alleged rape, and sex taking place in parked vehicles. He said this is outrageous and they had similar reports for Margarita Beach. He wondered where the security guy was at that time. He said that when the entertainment is promoted, all types come to party hearty. He added that the CUP is for a restaurant and we do not hear of these occurrences at other restaurants in town; this is operating as a nightclub and that is what is causing the problems. He said he believes the pictures presented are representative of a nightclub; drinking and dancing, overcrowded, minors getting in, a lax checking of I.D.'s, flashing hand signs, a stabbing and incidents with guns. He said they do not keep extending the operation of businesses that we think may affect the health,welfare and safety of residents. He said we do not trade this off for economic reasons. He referred to the facts and findings in the resolutions regarding the public safety responses, the business operation not being in accordance with the General Plan or Development Code, the violation regarding the cancellation of the security service, the evidence regarding the expansion of the dance floor area and that the Public Safety Records demonstrate the business is being operated in a manner contrary to the peace, healthy, safety and general welfare of the public. He said he did not think that there is any doubt of anyone that this business is being operated as a nightclub. He noted that he did not believe changing any of the conditions would change anything. He said we have had this owner before the Commission before with the operation of another restaurant and we had the same issues and problems. He said it appears the entire facility becomes a dancing facility and it does not look like it is restricted to a particular area. He said it is no surprise that in looking at the minutes of the prior Planning Commission review,the applicant was given the opportunity to clean it up and that I said that if they want to be a bar or a nightclub, they would have to apply for the appropriate permit. Chairman Fletcher made it clear in referring to the meeting of December 10, 2008, that "he is just setting the tone. He said he wants to see their success but he does not want them to gravitate towards being a bar and that it is now a borderline bar operation....he said he would like to see it become famous for their food and he does not want their entertainment at night to be the major focus. He said the key factor will be the calls for service......" He said Mr. Sambolin bought the restaurant and then made more out of it. He referred to page C & D -20 of the agenda packet, minutes for December 10, 2008 wherein Chairman Fletcher "pointed out that Mr. Evans' clients the business owners previously came to the Commission under false pretenses and asked for extended hours and entertainment and approval for a dance floor and then sold the business and started operating as something totally different. He said staff wants to see this remain a restaurant but it appears the owners want to migrate towards being a bar and there is no doubt in his mind that this is what is occurring." He said the Commission is not currently looking at other facilities, but they might and he then gave a general warning to other businesses that if they have a CUP for a restaurant, do not buy it and then make a nightclub out of it. He suggested this as a warning to others in town because he is tired of this type of hearing and conversation. He said this type of business operation is a risk to the safety of our residents. Commissioner Oaxaca referred to C & D page 87 of the agenda packet regarding the followup on the contract for the security firm. He asked if the new contract secured by Mr. Sambolin satisfied the conditions or was compliant with the permit for the days and hours that were being covered. Mr. Henderson said he believed they were required to have security all week. Planning Commission Minutes -14- March 10, 2010 1215732.2 Commissioner Oaxaca commented that until January,the applicant was still not in compliance with the permit. He then asked if the applicant wanted to pursue a Type 48 ABC license (paragraph 2.d of Resolution 10-12), what would that change entail. Mr. Troyer responded that it would be reviewed under a separate CUP. He said this would have to occur incidental with a restaurant use and that is not what is occurring. Mr. Flower said it is a different land use under the Code and a different kind of application that would have to be evaluated. He confirmed that these are evaluated on a case by case basis. Chairman Fletcher noted the use is for a restaurant but this may be their 41h review of businesses in town. He said the review would be of a separate operation as a bar or nightclub and they would have to come in with an application and it would be reviewed with appropriate conditions. He remarked that he believes there are nightclubs that can operate successfully without these problems and this is not what the use permit for this business allows. Mr. Troyer suggested the Commission act on the resolutions separately.. Vice Chairman Munoz stated that the Commission takes this very seriously because it will impact the business, but given the lack of adherence and a lack of confidence in the applicant, he moved to revoke both the CUP and the EP. Chairman Fletcher noted they should be separate. The motion died for lack of a second. Mr. Flower suggested the motions be separate. ' Vice Chairman Munoz moved to revoke the Conditional Use Permit. • Motion: Moved by Munoz, seconded by Wimberly, to adopt Resolution 10-12 to revoke Conditional Use Permit DRC2007-00283R. Motion carried by the following vote: AYES: FLETCHER, HOWDYSHELL, MUNOZ, OAXACA, WIMBERLY NOES: NONE ABSENT: NONE - carried Commissioner Wimberly moved to revoke the Entertainment Permit. Motion: Moved by Wimberly, seconded by Oaxaca, to adopt Resolution 10-13 to revoke Entertainment Permit DRC2007-00284R. Motion carried by the following vote: AYES: FLETCHER, HOWDYSHELL, MUNOZ, OAXACA, WIMBERLY NOES: NONE ABSENT: NONE - carried Chairman Fletcher noted that the decision of the Planning Commission may be appealed to the City Council and that there is a 10-day appeal period. Mr. Troyer suggested the applicant should contact staff if there is interest in appealing. PUBLIC COMMENT None Planning Commission Minutes -15- March 10, 2010 1215732.2 Chairman Fletcher agreed and said it is difficult to see friends and acquaintances' come before us that own businesses and that we have to make difficult decisions that may put them out of business. He said they try to give them leeway and opportunity to operate within the confines of their use permit but sometimes that does not happen. He said he often thinks business owners are under the impression that the Commission and Council are a little lax about their acquiring restaurants and then operating them as nightclubs. He said it is the type of promotion that brings the problems. He said he does believe that a restaurant owner with entertainment and the sale of alcohol can operate a night time business without these types of problems and they sometimes bring it on themselves. ADJOURNMENT Motion: Moved by Howdyshell, seconded by Wimberly, carried 5-0, to adjourn. The Planning Commission adjourned at 10:35 p.m. Respectfully submitted, Re James R. Troyer, AIC Secretary Approved: March 24, 2010 Planning Commission Minutes -16- March 10, 2010