Oxnard Municipal Code Art. XIII Grandfathered Establishments Selling Alcoholic Beverages

The city council hereby establishes regulations applicable to certain establishments located in the city and selling alcoholic beverages. Such establishments are “grandfathered,” or exempt from certain zoning provisions contained in chapter 16 of the city code because such establishments were engaged in such business before the adoption of such provisions. These regulations are intended to preserve the public health, safety and welfare by defining activities at such establishments that create a nuisance and by establishing performance standards that, if adhered to, will obviate the creation of a nuisance.

(Ord. No. 2572)

This article applies to any establishment that was in compliance with all applicable city ordinances and was selling alcoholic beverages at retail in the city before the effective date of zoning ordinances contained in chapter 16 of the city code that require establishments selling alcoholic beverages at retail to obtain a special use permit. This article refers to such establishments as “grandfathered establishments.”

(Ord. No. 2572)

A grandfathered establishment is declared to create a nuisance if the grandfathered establishment does any of the following:

(A) Is operated in a manner that results in adverse effects to the public health, safety or welfare of persons residing or working within 1,000 feet of the grandfathered establishment; or

(B) Is operated so as to cause or allow within the grandfathered establishment or within 1,000 feet thereof any disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, public urination, harassment of passerby, gambling, prostitution, sale of stolen goods, theft, assault, battery, vandalism, loitering, excessive littering, illegal parking, excessive loud noises (especially between 10:00 p.m. and 8:00 a.m.), curfew violations, lewd conduct, traffic violations, or police detentions and arrests; or

(C) Violates or allows the violation of any provision of the code or State or federal law, statute or regulation.

(Ord. No. 2572)

The owner of property on which a grandfathered establishment is located shall not cause or allow the grandfathered establishment to create a nuisance, whether or not such owner is also the operator of the grandfathered establishment. The owner of property on which a grandfathered establishment creates a nuisance shall promptly abate such nuisance.

(Ord. No. 2572)

The city manager may require the owner of any property on which a grandfathered establishment creates a nuisance to abate the nuisance. The city manager shall, by certified mail, send written notice to abate to each person to whom such property is assessed in the last equalized assessment roll or the supplemental roll, whichever is more current.

(Ord. No. 2572)

The notice shall be in substantially the following form:

NOTICE TO ABATE NUISANCE

Please be advised that on , 20 , (brief description of nuisances) was caused or allowed by (name of grandfathered establishment selling alcoholic beverages), at property you own, located at (address) . The aforementioned establishment sells alcoholic beverages and is subject to Article XIII of Chapter 7 of the Oxnard City Code, which provides that such activity constitutes a nuisance that must be abated. If you do not abate the nuisance by taking measures to ensure that the activity (or another activity declared by section 7-242 of the Oxnard City Code to constitute a nuisance) does not recur at or in the vicinity of the establishment, and such activity or such another activity does recur or occur, the City of Oxnard may abate the nuisance, after notice and hearing.

In order to abate the nuisance, the city may impose fines, place conditions on the operation of the establishment, or require that the establishment cease selling alcoholic beverages. The city's costs of abatement will be assessed on the above-described property and constitute a special assessment on the property until paid.

If you object to the requirement to abate imposed by this notice, you may, no later than ten days after the date this notice was mailed to you, file with the city clerk a written request for a hearing before a hearing officer, stating the grounds on which you assert that the activity does not constitute a nuisance. The request for hearing must be accompanied by a hearing fee in the amount of $500.00.

This notice will become final if such a request for hearing is not timely filed, accompanied by the hearing fee. After the notice has become final, the notice is evidence that the activity constituting the nuisance occurred, and the owner of the above-described property may not question or attack such evidence in any abatement proceeding regarding the establishment.

Dated: , 2 .

(Ord. No. 2572)

On receipt of the notice, the property owner may abate the nuisance at his/her own expense. Nevertheless, whenever such a notice is issued, the city manager may demand that the property owner pay costs incurred by the city in enforcing abatement upon the property, including investigation, boundary determination, measurement, preparation and service of the notice, and related costs (“notice costs”). If the property owner does not pay such costs, a special assessment may be imposed on the property, as provided for in this article.

(Ord. No. 2572)

Within ten days of the day that a notice to abate a nuisance is mailed, a property owner may file with the city clerk a written request for a hearing before a hearing officer, stating the reasons that the property owner contests the city manager's determination that the grandfathered establishment on the property owner's property caused or allowed a nuisance. Before the city clerk accepts the request for hearing for filing, the property owner shall deposit with the city clerk the hearing fee set by resolution of the city council.

(Ord. No. 2572)

On receiving a request for hearing, accompanied by the hearing fee, the city clerk shall send the request to the hearing officer, who shall promptly schedule the hearing. At least ten days before the hearing, the hearing officer shall send written notice to the property owner of the date, time and place of hearing.

(Ord. No. 2572)

(A) All hearings shall be open to the public.

(B) The property owner shall first present evidence to justify his/her failure or refusal to comply with the notice to abate a nuisance. Thereafter, a representative of the city may present evidence. The property owner bears the burden of proof to justify noncompliance with the notice to abate a nuisance.

(C) The hearing officer shall conduct the hearing in an informal fashion and shall not be bound by the technical rules of evidence.

(Ord. No. 2572)

(A) Within 14 days of the conclusion of the hearing, the hearing officer shall issue and mail to the property owner a written decision containing a statement of the reasons on which the decision is based. The hearing officer shall also provide a copy of the decision to the city manager.

(B) The hearing officer may uphold the notice to abate a nuisance, modify the abatement requirements contained in the notice to abate a nuisance, or invalidate the notice to abate a nuisance.

(C) The decision of the hearing officer is a final administrative decision and is not subject to reconsideration or administrative appeal.

(Ord. No. 2572)

The property owner may seek judicial review of the decision of the hearing officer in accordance with of the Cal. Code of Civil Procedure, Sections 1094.5 and 1094.6.

(Ord. No. 2572)

If the property owner does not request a hearing of a notice to abate a nuisance, or if a hearing is requested and the hearing officer upholds the notice or modified the abatement requirements contained in the notice, and the nuisance is not abated as and when required by the notice or the hearing officer's decision, the city manager shall abate the nuisance by taking the action required in the notice or in the hearing officer's decision, by imposing fines as set out in the notice or in the hearing officer's decision, by seeking a court order to prohibit the grandfathered establishment from continuing to sell alcoholic beverages, or by taking any other action available to the city.

(Ord. No. 2572)

(A) The costs of abatement of a nuisance, including the payment of any fines imposed in the notice to abate a nuisance or the decision of a hearing officer, including notice costs, and any costs of the hearing not paid by the property owner, shall be paid by the property owner and shall be collectible by the city as a civil debt.

(B) Attorneys' fees may be recovered by the prevailing party in an action by the city to abate a nuisance or recover the costs of abatement; provided, however, attorneys' fees may be recovered by the property owner against the city only if the city elects, at the initiation of the action, to seek recovery of the city's attorneys' fees against the property owner.

(Ord. No. 2572)

The cost of abatement, including notice costs and any costs of the hearing not paid by the property owner, shall be a lien against the property on which the nuisance is maintained, as well as a personal obligation of the owner of the property.

(Ord. No. 2572)

The city manager shall prepare a nuisance abatement cost report containing the following information:

(A) A description of the property on which the nuisance exists;

(B) The name and address of the property owner, and the name and address of the person creating, causing, committing, maintaining or allowing the nuisance, if such person is not the property owner;

(C) The date the notice to abate a nuisance was mailed to the property owner;

(D) The date of hearing, if any, and the decision of the hearing officer;

(E) Any costs of the hearing not paid by the property owner;

(F) The costs of abatement, including notice costs.

(Ord. No. 2572)

(A) The city manager shall schedule the cost report for hearing by the city council at a city council meeting. At least ten days before the date of the hearing, the city manager shall mail notice to the property owner of the place, date and time of the hearing. At least three days before the date of the hearing, the city manager shall post the cost report near the city council chambers in a location open to the public.

(B) At the hearing the property owner may object to the calculation of the cost of any item in the cost report.

(C) The city council may uphold the cost report, modify the cost report, or reject the cost report.

(D) If the city council upholds the cost report or modifies the cost report, the city council shall adopt a resolution making the cost of the abatement determined in the cost report a lien against the property on which the grandfathered establishment is located and requesting the county auditor to the enter the assessment on the county tax roll and collect the amount of the assessment at the time and in the manner of ordinary municipal taxes.

(E) The city manager shall send a copy of the resolution to the property owner by certified mail, together with a notice specifying that the property may be sold after three years by the tax collector for unpaid delinquent assessments.

(F) The city manager shall file a certified copy of the resolution with the county auditor.

(Ord. No. 2572)