By Raymond Klein.
It may sound absurd, but a Conditional Use Permit to allow the sale of alcoholic beverages (“CUB”) no longer contains conditions specific to the sale of alcoholic beverages. City Attorney Mike Feuer and the Planning Department have caved under the pressure of the alcohol industry lobbyists and lawyers without a fight. Conditions related to alcohol are no longer included in new CUBs and are being stripped out of existing CUBs when they come up for renewal.
Where the zoning is proper, a restaurant may open without obtaining any discretionary permit from the Dept. of Planning. But if the restaurant wants to sell alcoholic beverages, it must apply for a permit. The restaurant must convince a Zoning Administrator (ZA) in the Dept. of Planning at a public hearing that all 4 of the following findings can be made and are supported by substantial evidence: the sale of alcohol (1) will enhance the neighborhood or perform a function or provide a service that is beneficial to the community, (2) will not adversely affect the surrounding neighborhood, or the public health, welfare and safety, (3) will not adversely affect the welfare of the community, and (4) will not detrimentally affect the nearby residentially zoned communities in the area.
Drinking excessive amounts of alcohol is known to have strong links to public and domestic violence, drunk driving, public nuisances, and criminal activities. Prior to March 2013, ZAs traditionally included alcohol-related Conditions in CUBs. These Conditions pertaining to alcohol previously enabled the ZAs to make the four required Findings above, to respond to the LAPD which requests alcohol-related Conditions so as to prevent law enforcement problems, and, most importantly, to protect the public health, welfare, safety, and morals from the possible negative impacts of alcohol.
Alcohol-related Conditions include: quarterly gross sales of alcoholic beverages may not exceed the gross sales of food (which assures that it is a restaurant and not a bar), no exterior advertising promoting the availability of alcoholic beverages, no “Happy Hour” that would encourage binge drinking, no admission charge similar to a nightclub, no sales of alcoholic beverages for off-site consumption, no self-service of alcoholic beverages, and no requirement to purchase a minimum number of drinks. These type Conditions are designed to assure that restaurants, which are often adjacent to residential properties, are truly operating as restaurants, not bars.
The Los Angeles City Attorney recently adopted the position that the City is prohibited (“preempted”) by State law from imposing these type Conditions in a CUB. This position, or policy, has not been requested or required by the State Alcoholic Beverage Control, nor is it followed by other local jurisdictions such as Santa Monica, Culver City, and even Los Angeles County. The City Attorney confuses the licensing of the sale of alcohol, which is done by the State, as prohibiting the exercise of local land use/zoning and police powers which may mitigate the incidental impacts of the sale of alcohol in the interest of preserving the public health, safety, morals, and general welfare.
Neither the California State law nor the courts support the unwritten policy adopted by our City Attorney that State law prohibits local alcohol regulation. In fact, the California Alcoholic Beverage Control (ABC) Act says that a local government shall not be preempted in the valid exercise of its land use authority related to the operation of businesses selling alcohol. There are several Appellate Court decisions that cite this provision in the context of upholding alcohol-related Conditions imposed by local jurisdictions. The California ABC Act also provides that the ABC may not issue a State license for any premises that would be inconsistent with a valid local zoning ordinance. The State ABC Department will not even issue a new ABC license unless and until a CUB has been granted. Local alcohol regulation through land use/zoning and police powers can coexist without conflict with State licensing and regulation.
Since the adoption of this bizarre policy, Zoning Administrators attempt to rationalize the absence of alcohol-related Conditions with a statement that ZAs have “no direct authority to regulate or enforce Conditions assigned to alcohol sales or distribution.” But this explanation is flawed because every CUB also states that a violation of the Conditions in a CUB is a misdemeanor. Yet prosecution of misdemeanors is not the responsibility of ZAs, that’s the job of the City Attorney. The City Attorney has effectively reduced his caseload through this “underground policy” that is not in writing nor supported by authorities and reasoning.
Neighborhoods throughout the City have a strong local interest in preventive regulation of the impacts from the sale of alcoholic beverages. The police power that resides in local jurisdictions enables the imposition and enforcement of Conditions in CUBs, contrary to the new policy of the City Attorney.
Neighborhood and community councils need to bring this issue to the City Council and, absent a change of policy, other groups need to bring this issue before the Courts. We must make sure that CUBs that permit the sale of alcohol contain Conditions that guard against potential negative impacts on neighbors and protect the quality of life of the surrounding residential and business communities.
Raymond Klein has been involved with land use and transportation issues for 10 years on the Boards of the Brentwood Community Council and Brentwood Homeowners Association and is an occasional CityWatch contributor. Views expressed are his own.