Article 12 — Alcoholic Beverage Sales

This article shall be known as the Alcoholic Beverage Sales Ordinance. (§49, Ord. 2109, eff. 6/15/12)

Restaurant, entertainment, and hospitality-related businesses are a significant part of the economy and quality of life of the City of Walnut Creek, and alcoholic beverage sales are often important to the successful operation of these businesses. However, some alcoholic beverage establishments have caused significant nuisance activities, including fights, threats, narcotics violations, driving under the influence of alcoholic beverages and other traffic violations, public urination, over service, service to minors, and damage to property. These activities jeopardize the continued success of these businesses, seriously affect the public health, safety, comfort, convenience, prosperity, and general welfare of the community, and cause the City to expend undue public resources responding to service calls relating to the operation of such establishments. Accordingly, this article requires administrative use permits or conditional use permits for newly established alcoholic beverage sales establishments, establishes nuisance-based performance standards and confers deemed approved status on all existing and new alcoholic beverage establishments, and provides an administrative hearing process to review violations of those standards in order to protect the public health, safety, and general welfare of the residents of Walnut Creek and to prevent nuisance activities where alcoholic beverage sales and consumption occur. (§49, Ord. 2109, eff. 6/15/12)

The requirements of this article are intended to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare of the community by requiring that all alcoholic beverage establishments in the City of Walnut Creek comply with the performance standards specified in Section 102.3.1218, and to achieve the following objectives:

A. To protect residential, civic, retail, and commercial areas from the harmful effects attributable to public nuisances caused by the sale and consumption of alcoholic beverages;

B. To provide opportunities for alcoholic beverage establishments to operate in a manner consistent with community safety, a high quality of life, successful business practices, and economic growth;

C. To establish a set of consistent standards to address public nuisances associated with the sale and consumption of alcoholic beverages; and

D. To ensure that alcoholic beverage establishments are properly operated in a manner compatible with abutting properties and the surrounding environment.

The provisions of this article are intended to complement laws of the State of California related to alcoholic beverages. The City does not intend to replace or usurp any powers vested in the California Department of Alcoholic Beverage Control. (§49, Ord. 2109, eff. 6/15/12)

A. The provisions of this article shall apply, to the maximum extent permissible under law, to all alcoholic beverage establishments within the City.

B. Whenever any provision of this article or any other provision of law, whether included in the Municipal Code, or in any other law, ordinance, or regulation of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any of the same subject matter, the provision that is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this article. (§49, Ord. 2109, eff. 6/15/12)

A. The Community Development Director shall be responsible for administering the approval, conditional approval, denial, or modification of administrative use permits under this article. The Community Development Director is also authorized and directed to enforce all provisions of this article, pursuant to Section 10-2.4.1502.

B. The Planning Commission shall be responsible for administering the approval, conditional approval, denial, modification, and revocation of conditional use permits under this article. In the case of an enforcement action, the Planning Commission shall also be responsible for administering the modification or revocation of administrative use permits under this article. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24)

A. Except as otherwise provided herein, no person, group, business, or other entity shall establish a new alcoholic beverage establishment, change the retail liquor license type of an existing alcoholic beverage establishment, substantially change the mode or character of operation of an existing alcoholic beverage establishment, or continue to operate an alcoholic beverage establishment whose deemed approved status has been revoked, without first obtaining or modifying, as the case may be, an administrative use permit or a conditional use permit in the manner provided by this article.

B. An administrative or conditional use permit shall not be required for a special event function, such as a neighborhood or community festival, provided that the following criteria are met:

1. The person, group, business, or organization sponsoring the event obtains all permits required by any other applicable City law or regulation in order to lawfully conduct the special event; and

2. The person, group, business, or organization sponsoring the event first obtains a temporary on-sale license from ABC for each of the dates the event will be held. (§49, Ord. 2109, eff. 6/15/12)

A. An application for an administrative use permit or conditional use permit required by this article shall be in the form prescribed by the Community Development Director and shall be accompanied by an application processing fee pursuant to Section 10-2.4.202. Two (2) copies of the completed application shall be filed, one of which the Community Development Director shall route to the Police Chief or his or her designee for a determination, pursuant to Business and Professions Code Section 23958.4 and Resolution No. 95-28, whether the public convenience or necessity would be served by the issuance of a liquor license.

B. The application shall contain all of the information required by Article 2 of Part IV and shall also include all of the following additional information:

1. 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.

2. The true and complete name and address of each lender or share holder with a five percent (5%) 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.

3. The name, address, and telephone number of the person who shall manage and operate the alcoholic beverage establishment for which the administrative or conditional use permit is requested.

4. The name, address, and telephone number of the person authorized to accept service of legal notices.

5. The proposed business name of the alcoholic beverage establishment and a business plan describing all operational aspects of the proposed business, including if there is to be live entertainment or dancing.

6. Street address of the proposed alcoholic beverage establishment and the assessor parcel number for the property.

7. A plot plan for the property depicting the location of the building in which the alcoholic beverage establishment is proposed to be located and all existing and proposed parking, exterior lighting, signage, and landscaping, trash enclosures, waiting, or queuing areas.

8. A floor plan of the establishment showing all seating and dining areas, bar areas, location of fixed and movable tables and chairs, waiting areas, dancing areas, live entertainment areas, restrooms, occupancy building type and any other information necessary to establish the mode and character of operation.

9. The name and address of all existing schools, churches, hospitals, parks, playgrounds, or other alcoholic beverage establishments within six hundred (600) feet of the proposed premises.

10. The type of ABC license the applicant is seeking. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24)

The Community Development Director shall consider each application for an administrative use permit required by this article and shall approve or conditionally approve the permit upon confirming that the alcoholic beverage establishment will conform to the compliance checklist conditions of approval provided in Section 10-2.3.1209. All decisions on an administrative use permit shall be rendered within thirty (30) days of the date the application is deemed complete.

An alcoholic beverage establishment shall be eligible to obtain a modification of its hours of sales, service, and consumption pursuant to the streamlined processing provided in this section, notwithstanding the prior approval of a conditional use permit by the Planning Commission. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24)

The Community Development Director shall develop and maintain a compliance checklist that contains a standard set of conditions of approval to ensure that each alcoholic beverage establishment approved pursuant to an administrative use permit conforms to the findings and purpose of this article and the following goals:

A. The sales, service, and consumption of alcoholic beverages will end at or before 11:00 p.m.;

B. The proposed use will not cause adverse noise, litter, crowd control, or parking impacts;

C. The proposed use will not create objectionable conditions that constitute a nuisance, as defined in California Business and Professions Code Section 24200(f)(2); and

D. The proposed use will otherwise be compatible with existing and potential uses within the general area. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24)

The Planning Commission shall consider each application for a conditional use permit required by this article within the time and in the manner provided for by Article 2 of Part IV of the Zoning Ordinance, and shall approve or conditionally approve the permit upon making the findings required by Section 10-2.4.605 and each of the following findings:

A. The proposed use will not cause adverse noise, litter, crowd control, or parking impacts;

B. The proposed use will not create objectionable conditions that constitute a nuisance, as defined in California Business and Professions Code Section 24200(f)(2);

C. The proposed use will otherwise be compatible with existing and potential uses within the general area; and

D. The proposed use is not located in a high-crime area, as provided in California Business and Professions Code Section 23958.4(a)(1), or where a disproportionate number of police service calls occur. (§49, Ord. 2109, eff. 6/15/12)

When considering an application for a conditional use permit for an alcoholic beverage establishment, the Planning Commission shall consider whether the current conditions in the zoning district are requiring the

diversion of police resources to the detriment of residential areas of the City, or whether the permitting of additional premises selling alcoholic beverages will cause such diversion. The Planning Commission may, in approving, conditionally approving, or modifying the conditional use permit of an alcoholic beverage establishment, impose conditions that it deems reasonably necessary or desirable to ensure that the use authorized by the conditional use permit will be established, operated, and maintained in accordance with the findings required by Section 10-2.3.1210, the Zoning Ordinance, the Municipal Code, and other applicable provisions of law. Such conditions may address any factors relating to the establishment, operation, or maintenance of the proposed use, including, but not limited to, the following:

A. Hours and days of operation.

B. Location of queuing for patrons waiting to enter the facility. (There should be an identified area for queuing that is not located within the public right-of-way, nor that blocks required parking or driveways.)

C. Adequacy of restroom facilities for patrons inside the facility as well as accommodations for queuing patrons waiting to enter the facility.

D. Adequate drop off areas, if valet parking is to be provided.

E. Provision of security personnel that can be readily identified by the public and the police. Security personnel, if required, should be responsible for monitoring activities in the parking lots and should act as doorpersons to facilitate crowd control both inside and outside the facility.

F. Security provisions to assure safety of customers, clients, or employees on the site, as well as users of adjacent sites, including, but not limited to, lighting, alarm systems, security personnel, and the appropriate type and placement of landscape materials.

G. Installation of sound attenuation material, if necessary, to mitigate noise impacts.

H. Provision of maintenance personnel to police the residential area for litter.

I. If outdoor areas, including decking, balconies and porches are to be utilized as public assembly area, the Planning Commission may consider the square footage of the outdoor area in determining required parking.

J. Preventative design to reduce alcohol-related problems, including, but not limited to, openness for surveillance, reduction of opportunities of congregation and obstructing public ways, illumination of exterior areas, and limiting furnishings and features that encourage loitering.

K. A business plan that accurately describes the nature and operation of the proposed establishment.

L. A requirement that the ownership or management of an alcoholic beverage establishment take reasonable steps to assure the orderly conduct of its employees, patrons, and visitors and to timely respond and work cooperatively with the Community Development Department and Police Department about problems related to the operation or management of the establishment.

M. For alcoholic beverage establishments that sell alcoholic beverages past the hour of 11:00 p.m., periodic provision of records, audited by a certified public accountant, to demonstrate compliance with the City- or ABCrequired ratio of food to alcohol sales, whichever is stricter. (§49, Ord. 2109, eff. 6/15/12)

A. A decision by the Community Development Director regarding an administrative use permit for an alcoholic beverage establishment may be appealed to the Planning Commission as provided by Part IV, Article 5 of the Zoning Ordinance.

B. A decision by the Planning Commission regarding an administrative use permit or conditional use permit for an alcoholic beverage establishment may be appealed to the City Council as provided by Article 5 of Part IV of the Zoning Ordinance. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24)

A. An administrative use permit or conditional use permit shall expire by operation of law without any further action by the Community Development Director or the Planning Commission, or by the appropriate decisionmaking body if on appeal, if the use authorized by such administrative or conditional use permit is not commenced on or before the time limit specified in the conditions of approval of such permit or, if no time is specified, on or before one (1) year after the date such permit was approved. Notice of permit expiration need not be provided by the City. Notwithstanding the foregoing:

1. The Community Development Director may grant no more than one (1) administrative extension of such time limit if the approved business plan has not substantially changed and if there has been no substantial change in the circumstances of the surrounding vicinity, in the reasonable determination of the Community Development Director.

2. The expiration date set forth herein shall exclude any period of time during which an action or proceeding involving the permit is or was pending an appeal or litigation. The expiration period shall be tolled from commencement of the action or proceeding, and shall resume upon its final determination upon appeal or until the time for appeal has passed, in accordance with California Government Code Section 65009(f) or its successor statute. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24; §3, Ord. 2250, eff. 9/5/25)

A permit exercised in violation of this article or a condition of approval may be modified or revoked as provided in Section 10-2.4.412. Failure to comply with any term or condition of an approved administrative use permit or conditional use permit is a violation of the Zoning Ordinance subject to the enforcement provisions prescribed by Part IV, Article 15 of this chapter and any and all other penalties and remedies provided by law. An administrative use permit may be modified or revoked as provided by Part IV, Article 4 of this chapter. A conditional use permit may be modified or revoked as provided by Part IV, Article 6 of this chapter. (§49, Ord. 2109, eff. 6/15/12; §28, Ord. 2134, eff. 11/20/14)

All alcoholic beverage establishments lawfully operating pursuant to a valid ABC license that authorizes the retail sale of alcoholic beverages for on-site consumption shall automatically be deemed approved. An alcoholic beverage establishment with such deemed approved status may continue to lawfully operate pursuant to an administrative use permit or conditional use permit or, in the case of any legal nonconforming establishment, without an administrative or conditional use permit, provided it does not change its type of retail liquor license or "substantially change its mode or character of operation," as provided in Section 10-2.3.1217, and so long as it is operated and maintained in compliance with the "deemed approved performance standards" provided in Section 10-2.3.1218. (§49, Ord. 2109, eff. 6/15/12)

Within thirty (30) days following the effective date of the ordinance codified in this article, the Community Development Director shall:

A. Notify the owner of each alcoholic beverage establishment with deemed approved status, or the property owner if not the same, within the City of the establishment's deemed approved status authorizing the establishment to lawfully continue its operation in the manner required by this article; and

B. Provide the owner of the alcoholic beverage establishment with deemed approved status with a copy of this article and call the owner's attention to the requirement that the establishment be operated in accordance with the deemed approved performance standards set forth in Section 10-2.3.1218. (§49, Ord. 2109, eff. 6/15/12; §4, Ord. 2239, eff. 7/5/24)

The continued operation of an alcoholic beverage establishment with deemed approved status shall require approval of an administrative use permit or conditional use permit, or modification of an existing administrative or conditional use permit, as the case may be, in the manner provided by this article, upon the occurrence of any of the following:

A. The establishment changes its type of retail liquor license with the Department of Alcoholic Beverage Control.

B. There is a substantial change in the mode or character of operation. As used herein, the phrase "substantial change in mode or character of operation" shall include, but not be limited to, any of the following:

1. The alcoholic beverage establishment substantially increases the floor area or expands the customer service area primarily devoted to the sale, service, or consumption of alcoholic beverages;

2. The alcoholic beverage establishment extends the hours of sales, service, or consumption by thirty (30) minutes or more;

3. The alcoholic beverage establishment proposes to reinstate alcoholic beverage sales after the ABC license has been either revoked or suspended by ABC for a period greater than thirty (30) days; or

4. The alcoholic beverage establishment proposes to reinstate alcoholic beverage sales after a cessation of use for a period of one hundred eighty (180) days or more.

A substantial change in the mode or character of operation shall not include:

A. Re-establishment, restoration, or repair of an existing alcoholic beverage establishment on the same premises after the premises have been rendered totally or partially inaccessible by a riot, insurrection, toxic accident, or act of God, provided that the re-establishment, restoration, or repair does not substantially increase the sales or service of alcoholic beverages, extend the hours of operation, or add to the floor area or customer service area primarily devoted to the sale, service, or consumption of alcoholic beverages.

B. Temporary closure for not more than one hundred eighty (180) days in cases of vacation or illness or for purposes of repair, renovation, or remodeling if that repair, renovation, or remodeling does not substantially

change the nature or operation of the premises or add to the floor area or customer service area primarily devoted to the sale, service, or consumption of alcoholic beverages. (§49, Ord. 2109, eff. 6/15/12)

The provisions of this section shall be known as the "deemed approved performance standards." The purpose of these standards is to protect the public health, safety, and general welfare by controlling dangerous or objectionable environmental effects of alcoholic beverage sales activities. These standards shall apply, from and after the effective date of this ordinance, to all alcoholic beverage establishments that hold deemed approved status.

An alcoholic beverage establishment shall retain its deemed approved status only if it conforms to all of the following deemed approved performance standards:

A. It does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area;

B. It does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area;

C. It does not result in repeated nuisance activities within the premises or in close proximity to 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. It does not result in violations of any applicable provision of any other City, state, or federal regulation, ordinance, or statute; and

E. 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. (§49, Ord. 2109, eff. 6/15/12)

A. It shall be unlawful and constitute a public nuisance for any person to operate an alcoholic beverage establishment in violation of any provision of this article.

B. A person who violates, causes, or permits another person or entity to violate any provision of this article shall be subject to the enforcement provisions of Article 15 of Part IV of the Zoning Ordinance and Chapter 6 of Title 1.

C. Notwithstanding any provision of the Municipal Code to the contrary, the Planning Commission may, in accordance with the procedure provided in Section 10-2.3.1220, require the modification or revocation of any administrative use permit or conditional use permit and/or the modification or revocation of the deemed approved status of any alcoholic beverage establishment, if the Planning Commission finds that the use as operated or maintained constitutes a nuisance. Such a determination shall be made if the Planning Commission determines that an alcoholic beverage establishment is operating in violation of the deemed approved performance standards. (§49, Ord. 2109, eff. 6/15/12)

A. When the Community Development Director or his or her designee determines that an alcoholic beverage establishment is operating in violation of the deemed approved performance standards, the City may issue a notice of violation to the owner of the establishment and to the property owner. The notice of violation shall be sent by certified U.S. mail. Failure of either party to receive the notice provided pursuant to this subdivision shall not affect the validity of any proceeding that may occur hereunder.

B. A notice of violation shall describe the nature of the violation, the corrective action to be taken, and the time within which the corrective action must be taken. A notice of violation shall also either:

1. Include a warning that failure to correct the violation within the required time may result in the modification or revocation of the administrative use permit or conditional use permit and/or the modification or revocation of the deemed approved status of any alcoholic beverage establishment, and the enforcement penalties provided in Article 15 of Part IV of the Zoning Ordinance; or

2. Provide notice that a public hearing before the Planning Commission will be scheduled, pursuant to Article 3 of Part IV of the Zoning Ordinance, at which the Planning Commission shall determine whether the establishment as operated or maintained constitutes a nuisance and/or whether the establishment is in violation of any other applicable requirements.

C. After such notice and public hearing, the Planning Commission may, pursuant to Articles 4 and 6 of Part IV of the Zoning Ordinance, modify or revoke the administrative use permit or conditional use permit and/or modify or revoke the deemed approved status of the establishment. Any such action shall be supported by written findings that the establishment as operated or maintained constitutes a nuisance. As part of any modification, the Planning Commission may impose such conditions as the Planning Commission deems appropriate, including those necessary to obtain compliance with the deemed approved performance standards, to obtain compliance with other applicable laws, and to protect the public health, safety, and general welfare.

D. In deciding whether an alcoholic beverage establishment has violated the deemed approved performance standards, and/or in determining the appropriateness of modifying or revoking an administrative use permit or conditional use permit and/or deemed approved status, the Planning Commission may consider all of the evidence in the record, including the following:

1. The length of time the establishment has been in violation of the deemed approved performance standards;

2. The nature and impact of the violation of the performance standards on the community; and

3. Reasonable steps the ABC-licensee has taken, pursuant to California Business and Professions Code Section 24200, to remedy the violation.

E. "Reasonable steps" to remedy a violation shall include, but are not limited to calling the police department in a timely manner, requesting that those persons engaging in activities causing violations of the deemed approved performance standards to cease such activities, unless the licensee or his or her employees or agents feel that their personal safety would be threatened in making that request, and making improvements to the establishment's property or operations. Alcoholic beverage establishments are encouraged to contact the police department to handle such violations. Accordingly, in order to avoid discouraging such calls, a violation of the deemed approved performance standards may not be based solely upon the number of police calls for service that an alcoholic beverage establishment generates.

F. The issuance of a notice of violation shall not be a condition precedent to the City's exercise of the enforcement provisions of Article 15 of Part IV of the Zoning Ordinance and Chapter 6 of Title 1.

G. This section is not intended to restrict the powers and duties that may otherwise apply to alcoholic beverage establishments and those persons or entities authorized to require conformance with applicable law. (§49, Ord. 2109, eff. 6/15/12)

A. All owners, managers, and employees serving, selling, or supervising the sale or service of alcoholic beverages in alcoholic beverage establishments shall undergo and successfully complete a certified training program in responsible methods and skills for selling and serving alcoholic beverages. Such training shall be required for all new alcoholic beverage establishments and for any existing alcoholic beverage establishment upon a finding by the Planning Commission, or the City Council on appeal, that the establishment is operated or maintained under conditions that constitute a public nuisance.

B. To meet the requirements of this section, a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service (CCC/RBS) or other certifying/licensing body designated by the State of California. (§49, Ord. 2109, eff. 6/15/12)

A. Upon notice of an application for transfer of any ABC license of an alcoholic beverage establishment, the Police Chief or Community Development Director is authorized, under Business and Professions Code Section 23800(e) and Resolution No. 00-70, to protest the proposed transfer or to request that ABC impose conditions to mitigate problems either on the premises or in the immediate vicinity of the premises.

B. If an ABC license of an alcoholic beverage establishment is to be transferred to new premises, the establishment must apply for an administrative use permit or a conditional use permit in accordance with the requirements of Section 10-2.3.1206.

C. If a license of an alcoholic beverage establishment is revoked by ABC, after the revocation becomes a final order, the establishment must immediately cease alcoholic beverage sales and service and may not resume such activities unless the establishment applies for and obtains an administrative use permit or conditional use permit in accordance with the requirements of Section 10-2.3.1206. (§49, Ord. 2109, eff. 6/15/12)

An alcoholic beverage establishment that has (1) changed its type of retail liquor license with ABC, (2) substantially changed its mode or character of operation, or (3) been determined to be in noncompliance with the deemed approved performance standards and had its deemed approved status revoked shall no longer be considered a legal use of the premises and shall cease operation immediately. Any continued operation of the establishment shall require an administrative use permit or a conditional use permit pursuant to Section 102.3.1206. (§49, Ord. 2109, eff. 6/15/12)

All remedies and penalties prescribed by this article, or that are available under any other provision of law or equity, are cumulative and not exclusive. The use of one (1) or more remedies by the City shall not bar the use of

any other remedy for the purpose of enforcing the provisions of this article. (§49, Ord. 2109, eff. 6/15/12)

If any section, subsection, subdivision, sentence, clause, phrase, or portion of this article is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, that subsection, subdivision, sentence, clause, phrase, or portion thereof shall be deleted as though it never existed and the remainder of the article shall continue in full force and effect. The City Council hereby declares that it would have adopted this article and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one (1) or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. (§49, Ord. 2109, eff. 6/15/12)