Article II — CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES — San Bernardino Zoning Code

SECTION I – PURPOSE

The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience, prosperity and general welfare by requiring consideration and approval of a Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the operational standards in this ordinance and to achieve the following objectives:

(A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses.
(B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually beneficial to other such businesses and other commercial and civic activities.

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(C) Provide a mechanism to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels.
(D) Ensure that businesses selling alcoholic beverages are not the source of undue public nuisances in the community.
(E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment in any way.

This Article alone does not allow or permit alcoholic beverage sales activities, but only applies to these activities where otherwise allowed or permitted within an applicable land use zoning district. This Article does not authorize alcoholic beverage sales activities in any land use district where they are not otherwise allowed or permitted by the applicable involved zoning district’s regulations. The provisions of this ordinance are intended to compliment the State of California alcohol-related laws. The city does not intend to replace or usurp any powers vested in the California Department of Alcoholic Beverage Control.

SECTION II – REQUIREMENT

Notwithstanding any other provisions of this Code, no new on-site or off-site alcoholic beverage sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit, and shall be subject to Director approval of a Development Permit and a finding of public convenience or necessity, if required:

(A) Sit-down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary.
(B) Establishments containing 10,000 square feet or more, including but not limited to supermarkets and drug stores, which do not sell alcoholic beverages as the principal business
(C) Establishments, whose applications have been deemed complete prior to the effective date of this Ordinance by the Community Development s Department.
(D) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations.

SECTION III – LOCATIONAL RESTRICTIONS

(A) Unless otherwise exempted under subsections B – H, a new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations:

1. A public or private state licensed or accredited school.

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2. A public park, playground, recreational area, or youth facility, including a nursery school, preschool, or day-care facility.

3. A place of worship or religious institution.

4. A hospital.

5. An alcohol or other drug abuse recovery or treatment facility.

6. A county social service office.

(B) Establishments containing 10,000 square feet or more, including but not limited to supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are exempt from the locational restrictions.
(C) Sit down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.)
(D) All other establishments for on-site consumption of alcohol may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(E) Specialty retail establishments that offer unique product lines or variety of selection warranting a finding of public convenience or necessity are exempt from the locational restrictions.
(F) An automobile service station convenience store that meets the location criteria of Section 19.06.030(2)(U) may be exempted from these locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(G) A fraternal organization or veterans club may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(H) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations are exempt from the locational restrictions.
(I) The following location conditions will be considered in the review of Conditional Use Permit applications, and may be grounds for denial based on potential adverse effects to the public interest, health, safety or convenience:

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1. A location within a crime reporting district, or within 500 feet of a crime reporting district, where the general crime rate exceeds the city-wide general crime rate by more than 20 percent.

2. A location where the new alcoholic beverage sales activity would be within 500 feet from an existing alcoholic beverage sales activity, or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic beverage sales activity.

SECTION IV – OPERATIONAL STANDARDS

All new alcoholic beverage sales activities shall be designed, constructed, and operated to conform to all of the following operational standards:

(A) That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area.
(B) That it does not jeopardize or endanger the public health or safety of persons residing or working in the surrounding area.
(C) That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests.
(D) That it complies with all provisions of local, state or federal laws, regulations or orders, including but not limited to those of the California Department of Alcoholic Beverage Control (“ABC”), California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business registration fees.
(E) That its upkeep and operating characteristics are compatible with, and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
(F) That the owners and all employees of establishments involved in the sale of alcoholic beverages complete an approved course in Licensee Education on Alcohol and Drugs (LEAD), or other "Responsible Beverage Service" (RBS) training by October 21, 2011, or within sixty (60) days of hire for employees hired after that date. To satisfy this requirement, the RBS course must be recognized by the California Department of Alcoholic Beverage Control. The RBS course shall include at a minimum the following: a review of ABC laws and regulations; administrative, criminal and civil liabilities; acceptable forms of identification; and how to identify minors and persons already intoxicated. (MC 1358 7/5/11)

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1. Sit down restaurants that continue to serve menu items until closing and whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary are exempt from this training requirement. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) Fraternal organizations and veterans clubs are exempt from this training requirement.

2. Retail outlets with 25 or more employees or containing 10,000 square feet or more, and subject to this training requirement may elect to send only supervisory employees to the RBS training, who would then be responsible for training all employees who are involved in the sale of alcoholic beverages.

(G) A copy of these operational standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment.

SECTION V – ADMINISTRATION

The San Bernardino City Planning Commission shall administer Conditional Use Permits.

SECTION VI – PERMIT APPLICATION

Any person, association, partnership, corporation or other entity desiring to obtain an alcoholic beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino Community Development Department to forward to the San Bernardino City Planning Commission on a form provided by the City. The application shall be accompanied by a nonrefundable application processing fee in an amount established by a resolution of the Mayor and Common Council.

The application for a Conditional Use Permit shall include, but not be limited to the following information:

(A) The name, address and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible management officer.
(B) The name, address, and telephone number of each lender or share holder with a five percent or more financial interest in the proposed business or any other person to whom a share or percentage of the income of the establishment is to be paid.
(C) The name, address, and telephone number of the person who shall manage and operate the establishment for which the permit is requested.
(D) The name, address, and telephone number, if available, of all existing schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship,

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hospitals, alcohol or other drug abuse recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic beverage sales activity establishment.

(E) The name, address, and telephone number, if available, of all alcoholic beverage sale activities within 500 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from the proposed alcoholic beverage sales activity establishment.
(F) The name, address, and telephone number of a person authorized to accept service of legal notices.
(G) The proposed business name of the alcoholic beverage sales activity establishment and description of all operating aspects of the proposed business.
(H) The type of ABC license the applicant is seeking for the alcoholic beverage sales activity establishment.
(I) Any other information reasonably necessary to accomplish the purposes of this ordinance.
(J) The Planning Commission may refer the application to other City departments to determine whether the premises where the alcoholic beverage sales activity establishment will be located, complies with the City's building, health, zoning and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances and other laws they administer. City departments may prepare reports summarizing their inspections and recommending whether to approve or deny the application based on their inspections.

SECTION VII – ACTION ON PERMIT APPLICATION

The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new alcoholic beverage sales activity upon making the following findings:

(A) The proposed alcoholic beverage sales activity establishment is located in a zoning district in which the establishment is a permitted use.
(B) A finding of "public convenience and necessity" (Business and Professions Code Section 23958.4(b) (2)), if the activity will be located in an area that has been determined by the state of California Department of Alcoholic Beverage Control to have an undue concentration of licenses as defined in Business and Professions Code Section 23958.4(a).
(C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in the neighborhood created by the sale of alcohol such as loitering, public drunkenness, alcoholic beverage sales to minors, noise and littering.

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(D) The proposed establishment will not detrimentally affect nearby neighborhoods considering the distance of the alcohol establishment to residential buildings, schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse recovery or treatment facilities, county social service offices, or other alcoholic beverages sales activity establishments.
(E) The proposed establishment will otherwise be compatible with existing and potential uses within the general area.
(F) The proposed establishment is not located in what has been determined to be a highcrime area or where a disproportionate number of police service calls occur.
(G) The use of the proposed establishment is consistent with the General Plan.

SECTION VIII – CONDITIONS OF APPROVAL

Conditions of Approval that may be imposed include but are not limited to the following:

(A) Prohibited Products: To discourage nuisance activities, an Off-Sale Alcohol Outlet may be prohibited from selling one or more of the following products:
- (1) Wine or distilled spirits in containers of less than 750 milliliters.
- (2) Malt beverage products with alcohol content greater than five and one-half percent by volume.
- (3) Wine with an alcoholic content greater than 14 percent by volume unless in corked bottles and aged at least two years.
- (4) Beer or malt liquor sold individually in containers of 40 ounces or less.
- (5) Containers of beer or malt liquor not in their original factory packages of sixpacks or greater.
- (6) Distilled spirits in bottles or containers smaller than 375 milliliters.
- (7) Cooler products, either wine- or malt beverage- based, in less than four-pack quantities.
(B) Pay Telephones: Pay telephones on the site of the establishment shall be required to be of the type that only allow outgoing calls and shall be located in a visible and welllighted location.
(C) Program: A “complaint response community relations” program established and maintained by the establishment conducting the Deemed Approved Activity may be required. The program may include the following:

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(1) Posting at the entry of the establishment providing the telephone number for the area commander of the local law enforcement substation to any requesting individual.
(2) Coordinating efforts with the police department to monitor community complaints about the establishment activities.
(3) Having a representative of the establishment meet with neighbors or the applicable neighborhood association on a regular basis and at their request attempt to resolve any neighborhood complaints regarding the establishment.
(D) Activities: If appropriate the following activities may be prohibited on the premises: pool or billiard tables football or pinball games, arcade style video or electronic games coin-operated amusement devices.
(E) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from maintaining refrigerated or otherwise chilled alcoholic beverages on the premises.
(F) Hours of Operation: In an Off-Sale Alcohol Outlet, the sale of alcoholic beverages may be restricted to certain hours of each day of the week unless limited further by the State of California Department of Alcoholic Beverage Control.
(G) Cups: In Off-Sale Outlets, the sale or distribution to the customer of paper or plastic cups in quantities less than their usual and customary packaging may be prohibited.
(H) Signs: The following signs shall be required to be prominently posted in a readily visible manner on an interior wall or fixture, and not on windows, in English, Spanish and the predominant language of the patrons:
- (1) “California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age.”
- (2) "No Loitering or Public Drinking."
- (3) “It is illegal to possess an open container of alcohol in the vicinity of this establishment.”
(I) Presentation of Documents: A copy of the Conditions of Approval and the California Department of Alcoholic Beverage Control license shall be required to be kept on the premises and presented to any City Enforcement Officer or authorized state or county official upon request.
(J) Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner appropriate with mitigating alcohol related problems that negatively impact those individuals living or working in the neighborhood including but not limited to sales to minors, the congregation of individuals, violence on or near the premises, drunkenness, public urination, solicitation, drug-dealing, drug use, loud noise and litter.

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(K) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling drug/tobacco paraphernalia products as defined in Health and Safety Code sections 11014.5 and 11364.5. “Drug Paraphernalia” means all equipment products and materials of any kind that are used intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the California Uniform Controlled Substances Act commencing with California Health and Safety Code section 11000.
(L) Loitering: The establishment’s operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so.
(M) Security Cameras: At least two 24-hour time lapse security cameras may be required to be installed and properly maintained on the exterior of the building at locations recommended by the Police Department. All criminal and suspicious activities recorded on this surveillance equipment must be reported to local law enforcement. To the extent allowed by law, the establishment operators may be required to provide any tapes or other recording media from the security cameras to the Police Department.
(N) Security Guards: An establishment may be required to retain a specified number of security guards. The number of security guards shall vary based upon the specific facts and circumstances of each establishment site and operation. All security guards shall have all required state and City permits and licenses.
(O) Prohibited Vegetation: Exterior vegetation shall not be planted or maintained that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in a manner that minimizes its use as a hiding place.
(P) Window Obstructions: No more than 25% of windows or clear doors shall bear advertising of any sort, and all advertising signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance.

SECTION IX – APPEALS FROM A DETERMINATION ON AN APPLICATION FOR PERMIT

Any applicant or other person aggrieved by a decision of the Planning Commission on an application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor and Common Council pursuant to Development Code Chapter 19.52.

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SECTION X – GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION OR REVOCATION

An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to Development Code Chapter 19.52, for failure to comply with Operational Standards, training requirements or conditions imposed through the Conditional Use Permit.

Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. Notice shall be mailed by U.S. First-Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing.

SECTION XI – INVESTIGATIVE PROCEDURES OF POTENTIAL VIOLATION OF CONDITIONS OF APPROVAL

The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.93, to conduct hearings, make findings and determine whether violations of this Article, including the Operational Standards and Conditions of Approval, as well as whether undue negative impacts or public nuisance activities have occurred, are occurring or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93.

Upon the City’s receipt of a complaint from the public, Police Department, City official or any other interested person that a Conditional Use Permit activity is in violation of the Operational Standards and/or Conditions of Approval set forth in this Article, the following procedure shall be followed:

(A) A City Enforcement Officer (any Police Officer or other City Enforcement Officer as listed in San Bernardino Municipal Code Chapter 9.93) shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity’s compliance with Operational Standards and/or Conditions of Approval.
(B) If the Enforcement Officer determines that the activity is in violation of the Operational Standards and/or Conditions of Approval, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93.
(C) Any Administrative Citation or Administrative Civil Penalties Notice issued under this section shall be issued, processed, and enforced in compliance with all of the provisions of San Bernardino Municipal Code Chapter 9.92 and 9.93, unless otherwise expressly provided by this Ordinance.
(D) The Administrative Hearing Officer shall determine whether the activity is in compliance with the operational standards and/or Conditions of Approval. Based on this determination, the Hearing Officer may continue the Conditional Use permit

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status for the use in question, may impose Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the Operational Standards and/or Conditions of Approval or may recommend that the Planning Commission revoke the activity’s Conditional Use Permit. If the Hearing Officer determines instead to impose further, new conditions on the activity, such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whether a use has violated the Operational Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended conditions on a use, recommending suspension or revocation of a use, assessing administrative penalties, or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider:

re the Hearing Officer. In reaching a determination as to whether a use has violated the Operational Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended conditions on a use, recommending suspension or revocation of a use, assessing administrative penalties, or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider:

1. The length of time the activity has been out of compliance with the Operational Standards and/or Conditions of Approval.

2. The impact of the violation of the Operational Standards and/or Conditions of Approval on the community.

3. Any information regarding the owner of the activity’s efforts to remedy the violation of the operational standards and/or Conditions of Approval.

(E) “Efforts to Remedy” shall include, but are not limited to:

1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity, his or her employees, or agents.

2. Requesting that those persons engaging in activities causing violations of the Operational Standards and or Conditions of Approval cease those activities, unless the owner of the activity, or his or her employees or agents feels that their personal safety would be threatened in making that request.

3. Making improvements to the activity's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, the clearing of window obstructions, the cleaning of sidewalks and the abatement of graffiti within three days.
(F) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the activity constitute a nuisance, the owner is unable or unwilling to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Hearing Officer may recommend that the Planning Commission suspend or revoke the activity’s Conditional Use permit. All determinations, decisions, and conditions made or imposed regarding the use of a activity shall run with the land.
(G) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the Administrative Hearing Officer becomes final, the time in

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which judicial review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law.

SECTION XII – APPEAL FROM SUSPENSION OR REVOCATION OF CONDITIONAL USE PERMIT

Any applicant or other person aggrieved by a decision of the Planning Commission from a suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and Common Council pursuant to Development Code Chapter 19.52.