Title
CONSIDERATION OF THE DECISION OF THE CHIEF OF POLICE AND FINDING REGARDING AN ALCOHOLIC BEVERAGE LICENSE AT 7-ELEVEN LOCATED ON BONITA ROAD
A. RESOLUTION NO. 2017-168 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AFFIRMING THE DECISION OF THE CHIEF OF POLICE AND FINDING THAT AN ALCOHOLIC BEVERAGE LICENSE AT 4232 AND 4230 A & B BONITA ROAD (7-ELEVEN INC.) DOES NOT SERVE PUBLIC CONVENIENCE OR NECESSITY
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B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REVERSING THE DECISION OF THE CHIEF OF POLICE AND FINDING THAT AN ALCOHOLIC BEVERAGE LICENSE AT 4232 AND 4230 A & B BONITA ROAD (7-ELEVEN INC.) SERVES PUBLIC CONVENIENCE OR NECESSITY
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RECOMMENDED ACTION
Recommended Action
Council conduct the public hearing and adopt Resolution A.
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SUMMARY
Mike MacFarland of 7-Eleven, Inc. has appealed the Police Department’s finding that an alcoholic beverage license would not serve Public Convenience or Necessity.
ENVIRONMENTAL REVIEW
Environmental Notice
Environmental Notice
The activity is not a “Project” as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required.
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Environmental Determination
BOARD/COMMISSION RECOMMENDATION
Not Applicable.
DISCUSSION
The Department of Alcoholic Beverage Control (ABC) is responsible for the issuance of licenses for the sale of alcoholic beverages in the State of California. Section 23958 of the California Business and Professions Code gives ABC the authority to deny an application for a license if such a license would result in an over-concentration of licenses and/or a higher than average crime rate in the area. The Business and Professions Code requires the local governing body to determine whether a public convenience or necessity is served by the issuance of the alcoholic beverage license, given ABC’s initial determination of over-concentration and/or high crime rate. The local governing body must affirmatively sign a “Public Convenience or Necessity” form in order for the business to obtain an alcoholic beverage license.
Process for Public Convenience and Necessity (PCN)
Once ABC has determined that there is over-concentration and/or high crime rate in the census tract where the application is submitted, the applicant must submit a “Public Convenience or Necessity” form to the Chief of Police. Once the Chief of Police receives the form from the applicant, a determination hearing is scheduled. The determination hearing is an open meeting, in which the applicant may make a presentation and members of the public may comment and ask questions. The Police Department solicits responses from the community by sending letters to all business owners and residents within 500 feet of the applicant premises notifying them of the determination hearing. In addition to making comments at the hearing, community members may provide written comments. They also may leave a telephone message with a detective to voice their support for or protest of the license. The business must also post a notice of the application on the premises. The Chief of Police then determines whether a public convenience or necessity exists. The Chief of Police may condition a determination of public convenience or necessity. Determination of public convenience or necessity may be based on, but is not limited to, the following criteria: the history of the subject business and/or owner; existing conditions at the site or in the vicinity (e.g., potential for creation of a police problem or aggravation of an existing problem); and the crime rate within the vicinity of the application. If the Chief finds that there is no public convenience or necessity, the applicant may appeal the decision to the City Council. Upon the filing of the appeal with the City Clerk’s Office, the matter is set for a public hearing before the full City Council. The City Council is tasked with making its own determination of public convenience or necessity, based on the record before it and testimony presented at the public hearing, and is not required to defer to the Police Department’s determination. Accordingly, two resolutions with two options regarding public convenience or necessity are presented. The process of determining public convenience or necessity is found in Chula Vista Municipal Code Chapter 5.09. [Attachment 1]
7-Eleven Inc. appeal
The 7-Eleven store located at 4232 & 4230 A & B Bonita Road applied for an off-sale beer and wine license (ABC License Type 20) with the California State Department of Alcoholic Beverage Control. ABC determined that there is an over-concentration of alcohol licenses in the census tract where the application is submitted. On April 10, 2017, Sherrie Olson of 7-Eleven, Inc. formally requested the Chula Vista Police Department to conduct a finding of Public Convenience or Necessity [Attachment 2] for the store located at 4232 & 4230 A & B Bonita Road. The Police Department provided notice of 7-Eleven’s ABC license application to residents and business owners within 500 feet of the location [Attachment 3]. On June 20, 2017, the Chula Vista Police Department held a public hearing to gather input on Public Convenience and Necessity for the 7-Eleven store. The Police Department determined that the census tract of the applicant’s location will have an over concentration of alcohol licenses as defined by the Department of Alcoholic Beverage Control if the application is approved. The Police Department issued notice that the applicant failed to meet Public Convenience or Necessity [Attachment 5]. On July 6, 2017, Mike MacFarland of 7-Eleven Inc. appealed the Police Department’s finding that an alcoholic beverage license does not serve a public convenience or necessity [Attachment 6].
The Police Department based the finding that issuing an ABC license to the 7-Eleven store located at 4232 and 4230 A&B Bonita Road does not serve a Public Convenience or Necessity on the following criteria:
1. Another ABC license would cause the area to become further over-concentrated with ABC licenses. According to ABC, the census tract in which the business is located allows for three (3) licenses in that area, and currently six (6) exist.
The following six (6) businesses in the area have off-sale licenses: 1) Rite Aid, 4348 Bonita Rd.; 2) Bonita Valley Liquor, 4040 Bonita Rd.; 3) Vons, 4404 Bonita Rd.; 4) Holy Expletive Inc., 417 Milagrosa Cir.; 5) Holiday House Liquor, 4206 Bonita Rd.; and 6) Arco, 4498 Bonita Rd. The map below shows the existing ABC licenses in the census tract.
2. According to Police Department data, the Department received 26 alcohol-related (drunk driver, drunk in public) calls for service and 17 transient-related calls for service in the 4000-4400 block of Bonita Road in the past fiscal year.
3. During the public hearing held on June 20, 2017 at Police Department headquarters, nine (9) people attended. Four (4) people opposed issuance of the license and three (3) were in support of the license. Twenty-nine (29) phone calls were received by the Police Department, in opposition to the license. As of noon on 9/7/2017 (time of agenda publication), thirty-two (32) letters were received by the City, in opposition to the license. [Attachment 4A] Some individuals called and attended the public hearing or submitted letters. Based on the Police Department’s review of home addresses provided in the letters, senders live within an estimated 0.6 miles of the 7-Eleven. Additionally, a list of fifty-four (54) names were submitted to the City Clerk’s Office, in support of the license [Attachment 4B]. For privacy reasons, signatures, home addresses, emails and phone numbers, when provided, were redacted from the letters, phone log and hearing sign in sheet before disclosure to the applicant and publication in the agenda packet.
Members of the public have expressed the following concerns.
a. Over-concentration of alcohol licenses already exists in the area
b. Transient population in the area and easy access to alcohol
c. Increase in alcohol-related crimes
d. Decrease in quality of life in the area
e. Traffic congestion and pedestrian safety
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Council members and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real property-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(11), for purposes of the Political Reform Act (Cal. Gov’t Code §87100,et seq.).
Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter.
LINK TO STRATEGIC GOALS
The City’s Strategic Plan has five major goals: Operational Excellence, Economic Vitality, Healthy Community, Strong and Secure Neighborhoods and a Connected Community. The denial of this alcoholic beverage license supports the Strong and Secure Neighborhoods goal as it limits the number of ABC licenses issued in the city.
CURRENT YEAR FISCAL IMPACT
Minimal loss of sales tax revenue to the General Fund from alcoholic beverage sales if application is denied.
ONGOING FISCAL IMPACT
Minimal loss of sales tax revenue to the General Fund from alcoholic beverage sales if application is denied.
ATTACHMENTS
Attachment 1: Chula Vista Municipal Code Chapter 5.09 Alcoholic Beverage Licenses
Attachment 2: Request for a finding of Public Convenience or Necessity dated April 10, 2017
Attachment 3: Notice to residents and business owners of ABC license application dated April 24, 2017
Attachment 4: Public responses regarding ABC license application
Attachment 5: Police Department’s denial of issuance of ABC license dated June 27, 2017
Attachment 6: Appeal of denial of ABC license dated July 6, 2017
Attachment 7: Letter from Chief of Police to City Clerk dated July 16, 2017 regarding findings of Public Convenience or Necessity
Staff Contact: Jonathan Alegre, Police Department