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Wednesday, July 25, 2012

Appeal of Alcohol Sales Permit Denial Is Continued

• ABC Says Las Flores Location Is in a ‘High Crime District’

BY BILL KOENEKER

The owner, MMK Enterprises, Inc., of the Circle K convenience store located at 21216 Pacific Coast Highway sought a continuance in his effort to appeal the planning commission’s decision to not allow the store to sell beer and wine.
The city council was scheduled to hear the appeal at its meeting on Monday night this week.
The planning staff has recommended the council deny the appeal and also deny the Conditional Use Permit for “the sale of beer and wine for offsite consumption as an accessory use to the existing Circle K convenience store.”
Schmitz &Associates representative Chris Deleau, who represents the Circle K owner, wrote to city officials asking for the delay.
The council agreed to hear the matter at its meeting on Aug. 27.
The proposal has been rejected by the planning commission on two separate occasions.
The appellant contends in the appeal that the basis for denial on the grounds there are a concentration of too many businesses selling alcohol for off-site consumption is not legal and cannot be implemented by the municipality.
“The city may not deny the [Conditional Use Permit] on the basis of ‘undue concentration’ or ‘saturation’ as it is preempted from making such a finding,” wrote Schmitz and Associates representative Chris Deleau.
However, the planning staff countered that in 1995, the state amended the code to require ABC  “to deny an application for a liquor license if issuance of that license would result in or add to an undue concentration of liquor licenses.
“Undue concentration is defined as occurring when the premises of the proposed license is located in an area that has 20 percent more reported crimes (which is classified as a high crime reporting district) than the average number of reported crimes for the reporting district as a whole.
“On June 28, 2012, ABC staff confirmed that the subject property is located within a high crime reporting district (District No. 1017).”
However, in the letter seeking the continuance, Deleau took issue with the planning staff on the ABC  determination.
“Ms. Hoffman [at ABC] confirmed that for Circle K’s application (and apparently others) she has been utilizing the 2009 crime statistics as the baseline for assessment under the government code. The code requires that the ABC utilize the most recent year of compiled crime statistics in order to make its evaluation (2011-2012). Therefore it appears that the ABC did not follow statutory protocol when making its assessment of the Circle K application,” Deleau added.
The Circle K spokesperson also took issue with ABC’s use of what is called the reporting district for Malibu, which “is inclusive of areas within the jurisdictional boundaries of several government entities. Thus, it appears that the ABC has also misapplied the terminology in the statute in order to arrive at its determination that the city is a ‘high crime reporting district.’ Additionally, the term ‘high crime reporting district’ does not appear to be a term defined in the statute. We desire to obtain further clarification in this regard,” Deleau informed the city.
The appeal letter also stated, “The planning commission’s finding that the proposed use would not be compatible with land uses presently on the subject property and in the surrounding neighborhood was not supported by substantial evidence in the record.
The staff response stated, “The commission considered the mix of uses in the area, the configuration of the lot and its primary use and found that the  request could not be supported based upon the use’s incompatibility with the land uses in the surrounding neighborhood.
“The appellant offered to include conditions of approval, which would require that the property owner retain a private security company to patrol. These self-imposed conditions were then reiterated by the appellant in his presentation to the planning commission, however the commission determined that these measures were simply not enough to ensure that the sale of beer and wine would be compatible with the existing surrounding uses in the neighborhood.”
The appellant also insists the planning commission’s finding that the proposed use would be detrimental to the public interest, health, safety, convenience or welfare “was not supported by substantial evidence in the record.”
The staff response is that the planning commission heard the matter twice and the commission “considered all evidence presented and concluded that the request would be detrimental to the public interest, health, safety, convenience.” The staff responded by saying the appellant is incorrect. “All CUPs must be consistent with the General Plan. The Malibu Municipal Code must also be consistent with the General Plan, but regardless, the specific implementation measures must be complied with.
There is another basis for the appeal, according to Deleau, who added.
“The record reflects a clear and direct bias against the applicant and its application based upon the fact that the sales location is a service station. The applicant contends that the denial of its CUP was discriminatory and in violation of this provision of law [and] that the commission’s decisions were politically motivated and not factually supported,” the appeal letter goes on to state. 

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