HomeMy WebLinkAbout01. Adopt Reso-Denying Appeal of CUP and Modifying Conditions for Existing Hookah Lounget�
CITY MANAGER
TO: MAYOR ASHTONAND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
Y: ALDO E. SCIL, DIRECTOR OF COMMUNITY DEVELOPMENT
DATE:. JANUARY 23, 2018
REVIEW OF APPEAL OF PLANNING• • DECISION TO
MODIFY THE CONDITIONAL USE PERMIT WHICH ALLOWS HOOKAH HUB TO
OPERATE WITH LIVE ENTERTAINMENT AND DANCING AT 8323 FIRESTONE
BOULEVARD.
RECOMMENDATION
Staff recommends that the City Council adopt the following titled resolution:
• •': r • 1 1 • r
WAY-NdINX
MIA I 616111 N L"
BACKGROUND
On November 1, 2017, the Planning Commission held a duly noticed public hearing and —
?dopted Resolution No. 17-3039, thereby modifying the existing Conditional Use Permit and
revising the conditions of approval.
On November 15, 2017, the applicant filed an appeal of the Planning Commission's decisi6m
DISCUSSION
During the November 1, 2017 public hearing staff presented a report on "Hookah Hub", a
hookah lounge, and detailed the numerous incidents in and around the site that have taken
place over the past year. The Planning Commission was concerned with the high volume of
incidents occurring at this business that required action from the Downey Police Department.
These incidents include stabbings, a fight that eventually led to a shooting, gang activity, and
noise complaints. Additionally, the business has been operating in violation of several conditions
of approval, and in violation of several Fire and Building Code violations, such as, blocking the
front entrance and illegally installing a substandard security door at the front entrance, and hot
coals/combustible materials stored at egress of business. As such, the Planning Commission
APPEAL OF PLANNING COMMISSION DECISION
JANUARY 23, 2018
amended and added several additional conditions of approval to help mitigate the impacts
associated with the hookah business. A complete analysis and modifications can be found in
the attached Planning Commission Staff Report (Exhibit D).
The Commission was concerned with the lack of responsible management of the business,
management's disregard of the approved conditions of approval, and the misrepresentation of
the proposed business operations during the original public hearing.
During the Public Hearing, a resident commented on issues of loitering and noise that they had
personally experienced and witnessed in association with the operation of the hookah business.
In the appeal letter, dated November 15, 2017, the Appellant stated that the Planning
Commission acted in error and did not feel the evidence supported the modification of the CUP.
The appellant further stated that the modification to the CUP, which would prohibit dancing and
live entertainment, would negatively impact the business and "completely eliminate" the purpose
for the CUP, which was originally approved to allow dancing and live entertainment. A copy of
the Applicant's appeal is attached as Exhibit E.
FISCAL IMPACT
Adoption of the proposed resolution will not impact the General Fund
Attachments: "A - Draft Resolution
"B - P.C. Resolution No. 17-3039
"C" Draft Minutes - November 1, 2017
"D" - P.C. Staff Report - November 1, 2017
"E Applicant Appeal November 15, 2017
Q
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY DENYING AN
APPEAL OF i DECISION TO APPROVE
TO A CONDITIONAL1 TMODIFYING THE
CONDITIONSOF -i FOR AN EXISTING HOOKAHi ON
PROPERTY • D AT 8323 FIRESTONEBOULEVARD AND ZONED
DOWNTOWN r• BOULEVARD G
DISTRICT
WHEREAS, on August 17, 2016, the Planning Commission adopted Resolution No. 16-
2990, thereby approving a Conditional Use Permit to allow a hookah lounge, Hookah Hub, to
operate with Jive entertainment and dancing on property located 8323 Firestone Boulevard; and;
WHEREAS, from October 23, 2016 to October 21, 2017, the Police Department
received several calls -for -service regarding the Hookah Hub, and serious incidents have
occurred in and around the Hookah Hub business which have resulted in criminal activities, and
an increase in Downey Police Department patrols in the area. These incidents included a
shooting, a stabbing, consumption of alcohol, loud noises, fights, and theft, which have taken
place inside, the rear parking lot, and the immediate vicinity of the Hookah Hub; and,
WHEREAS, on September 16, 2017, the Downey Police Department conducted an
inspection of Hookah Hub and found that the business was operating in violation of several
conditions of approval, including modifications to the approved floor plan, charging a cover
charge, lack of a dress code, lack of security, the preparation, sale and consumption of food on
the premises and other violations of the previously approved conditions of approval; and
WHEREAS, on September 20, 2017, representatives from the Police Department, Fire
Department, Planning Division, and the City's Prosecutor's Office, met with the business owner,
Mr. Emad Hanna to go over recent incidents that have taken place at the Hookah Hub, and in
relation to the Hookah Hub, as well as the September 16, 2017 Police Department inspection.
The meeting also included a site inspection of the business, whereby staff found that the
business was operating in violation of the approved conditions of approval and numerous Fire
and Building Code violations; and,
WHEREAS, on October 19, 2017, notice of the pending public hearing was sent to all
property owners within 500' of the subject site and the notice was published in the Downey
Patriot; and,
WHEREAS, on November 1, 2017, the Planning Commission conducted a duly noticed
public hearing, and after fully considering all oral and written testimony and facts and opinions
offered at the aforesaid public hearing, the Commission adopted Resolution No. 17-3039
modifying the conditional use permit; and,
WHEREAS, on November 15, 2017, the applicant filed a timely appeal of the Planning
Commission's approval of the conditional use permit modification; and,
WHEREAS, on January 11, 2018 notice of the pending application was published in the
-Downey Patriot and mailed to all property owners within 500' of the subject site; and,
RESOLUTION NO. 18 -
PAGE 2
WHEREAS, the City Council held a duly noticed public hearing on January 23, 2018, at
which time, fully considered all oral and written testimony and facts and opinions regarding the
modification of the existing Conditional Use Permit; and,
WHEREAS, the City Council finds, determines and declares that the modification of the
existing Conditional Use Permit has been reviewed for compliance with the California
Environmental Quality Act (CEQA). Upon completion of this review, it has been determined that
this request is categorically exempt from CEQA, pursuant to Guideline Section No. .15321
(Class 21, Enforcement of Actions by Regulatory Agencies); and,
WHEREAS, having further considered all of the oral and written evidence presented to it
at said public hearings regarding the modification of the existing Conditional Use Permit, the
City Council further finds, determines and declares that:
1. The use is being operated in a manner that is detrimental to the public health, safety,
welfare, and public convenience or is a public nuisance. Based the information provided,
the business operator has operated the business in a manner that is detrimental to the
public health, safety, and welfare of the patrons and the general public. The business is
being operated in violation of numerous conditions of approval, and the Police
Department has received several complaints regarding the noise associated with
patrons leaving and entering the Hookah Hub, particularly post -midnight. There have
also been incidents involving criminal activities which include: aggravated robbery,
multiple assaults, thefts, and assault with a deadly weapon. For these reasons, the
Modification to the Conditions of Approval is necessary to prevent further impacts to the
public health, safety, welfare, and public convenience and stop the business from being
a public nuisance.
2. The use is being conducted in violation of the terms and conditions of the permit or
variance or in violation of any statute, ordinance, law, or regulation. The use is being
conducted in violation of the terms and conditions of the approved conditional use
permit, in that during the apparent regular course of business, the operator of the
Hookah Hub has (i) failed to immediately report illegal activity occurring at the site; (ii)
failed to provide adequate security personnel and services; (iii) prepared food at the site
and allowed consumption of food at the site; (iv) charged cover charges when no pay-
per-view sporting event was being presented at the site; and (v) allowed outside
promoters to host events at the establishment. Additionally, the business operator has
allowed dangerous conditions to exist at the site in violation of the Downey Building and
Fire Codes. Furthermore, the allowance of live entertainment (including dancing by
patrons), the sale and/or consumption of food and beverages at the site, and the
admittance of persons under 21 years of age potentially prevent the Hookah Hub from
being deemed a private smokers' lounge— whereby the Hookah Hub would be violating
the State workplace smoking prohibition.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES
_X'ESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission's decision to approve Revision "A" to a
Conditional Use Permit (PLN -17-00163), is hereby upheld.
RESOLUTION NO. 18 -
PAGE 3
SECTION 2. If any section, subsection, paragraph, sentence, clause or phrase of this
Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise
invalid, such decision shall not affect the validity of the remaining portions of this Ordinance.
The City Council declares that it would have adopted this Ordinance, and each section,
subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or
more sections, subsections, phrases, or portions be declared invalid or unconstitutional.
SECTION 3 The City Clerk shall certify the adoption of this Resolution and cause the
same to be published in the manner prescribed by law.
APPROVED AND ADOPTED this 23rd day of January 2018..
Sean Aston, Mayor
Evilau
MARIA ALICIA DUARTE, CMC
Interim City Clerk
STATE OF CALIFORNIA- )
COUNTY OF LOS ANGELES ) ss
CITY OF DOWNEY )
HEREBY CERTIFY that the foregoing Resolution No. 18 was introduced and
adopted at a Regular Meeting of the City Council of the City of Downey held on the 23rd day of
January, 2018, by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission of the City of Downey does hereby find, determine
and declare that:
A. On August 17, 2096, the Planning Commission adopted Resolution No. 12-2990,
thereby approving a Conditional Use Permit to allow a hookah lounge (Hookah
Hub) with live entertainment and dancing to operate on property located 8323
Firestone Boulevard; and,
On February 15, 2017 the six-month review for the ConditionalUsePermit No was
presented to the Planning Commission for review. At that time, there were five (5)
"calls for service", of which four (4) were noise related and one (1) was because
due to the owner hosting a private event with bottle service, In the Police
Department's opinion, these five (5) "calls for service" were not considered
excessive during a six-month period; however, they did recommend that the
business owner increase security and regularly monitor the rear parking lot during
business hours; and,
C: From October 23, 2016 to October 21, 2017, the Police Department has received
several "calls for service" regarding the Hookah Hub, and serious incidents have
occurred in and around the Hookah Hub business, which have resulted in criminal
activities, and an increase in Downey Police Department patrols in the area. These
incidences --consumption of alcohol, loud noises, fights, and theft, have taken place
inside and in the parking lot area of the Hookah Hub; and,
D On September 16, 2017, the Downey Police Department conducted an inspection
of the hookah business and found that the business was operating in violation of
several conditions of approval, including modifications to the floor plan, the sale
and consumption of food on the premises and other violations of the previously
approved conditions of approval; and,
E. On September 20, 2017, representatives from the Police, Fire, Planning, and the
City's Prosecutor's Office, met with the business owner, Mr. Emad Hanna to go
over recent incidents that have taken place at the Hookah Hub, or in relation to the
Hookah Hub, as well as the September 16, 2017 Police Department inspection,
The meeting also included a site inspection of the business, whereby staff found
that the business was operating in violation of the approved conditions of approval.
The Fire Department also found numerous Fire Code violations; and,
F. The City Planner determined that the numerous complaints and criminal incidents
associated with the Hookah Hub business, are reasonable grounds to modify the
conditional use permit, pursuant to Section 9828 of the Downey Municipal Code,
and,
Resolution No. 17-3039
Downey Planning Commission
Ge On October 19, 2017, notice of the pending public hearing was sent to all property
owners within 500' of the subject site and the notice was published in the Downey
Patriot; and,
H, The Planning Commission held a duly noticed public hearing on November 1, 2017,
and, after fully considering all oral and written testimony and facts and opinions
offered at aforesaid public hearings, adopted this Resolution modifying the
Conditional Use Permit,
SECTION 2. The Planning Commission further finds, determines and declares the
environmental impact of the proposed modification has been reviewed and has been found to be
in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt
from CEQA, pursuant to Guideline Section No. 15321 (Class 21, Enforcement of Actions by
Regulatory Agencies). Categorical Exemptions are projects which have been exempted from the
requirements of the CEQA because they do not have a significant effect on the environment.
SECTION 3. Having considered all of the oral and written evidence presented to it at said
public hearings, the Planning Commission further finds, determines and declares that:
A. The use is being operated in a manner that is detrimental to the public health, safety,
welfare, and public convenience or is a public nuisance. Based the information provided,
the business operator has operated the business in a manner that is detrimental to the
public health, safety, and welfare of the patrons and the general public. The business is
being operated in violation of numerous conditions of approval, and the Police Department
has received several complaints regarding the noise associated with patrons leaving and
entering the Hookah Hub, particularly post -midnight. There have also been incidents
involving criminal activities which include: aggravated robbery, multiple assaults, thefts,
and assault with a deadly weapon. For these reasons, the Modification to the Conditions of
Approval is necessary to prevent further impacts to the public health, safety, welfare, and
public convenience and stop the business from being a public nuisance.
B. The use is being conducted in violation of the terms and conditions of the permit or
variance or in violation of any statute, ordinance, law, or regulation. The use is being_
conducted in violation of the terms and conditions of the approved conditional use permit,
in that during the apparent regular course of business, the operator of the Hookah Hub has
(i) failed to immediately report illegal activity occurring at the site; (ii) failed to provide
adequate security personnel and services; (iii) prepared food at the site and allowed
consumption of food at the site; (iv) charged cover charges when no pay-per-view sporting
event was being presented at the site; and (v) allowed outside promoters to host events at
the establishment. Additionally, the business operator has allowed dangerous conditions to
exist at the site in violation of the Downey Building and Fire Codes. Furthermore, the
allowance of live entertainment (including dancing by patrons), the sale and/or
consumption of food and beverages at the site, and the admittance of persons under 21
years of age potentially prevent the Hookah Hub from being deemed a private smokers'
lounge — whereby the Hookah Hub would be violating the State workplace smoking
prohibition.
SECTION 4. Based upon the findings set forth in Sections 1 and 3 of this Resolution, the
Planning Commission of the City of Downey hereby approves Revision "A" to the Conditional Use
Permit, subject to the Conditions of Approval attached hereto as Exhibit A - Conditions, which are
PLN 17=00183 (Modify CUP) — 8323 Firestone Blvd,
November 2, 2017 — Page 2
Resolution No, 17-
llffkWff--VES
4y and general welfare Of the community and enable the 0
Lin s set forth in the previous sections. thii�conditions are
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I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the
Planning Commission of the City of Downey at a regular meeting thereof hold on th6 f�'�dpy of
November, 2017, by the following vote, to wit:
AYES: COMMISSIONERS: Rodriguez, Owens, Dominguez, and Duarte
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: None
ABSENT: COMMISSIONERS: Flores
'Mary CavAnagh, Secretary
City Planning Commission
PLN 17-00163 (Modify CUP) — 8323 Firestone Blvd,
November 2, 2017 — Page 3
Resolution No. 17-3039
Downey Planning Commission
CONDITIONS APPROVAL7.00163
PLANNING
1) The approval of Revision"A" to a Conditional Use Permit (PLN -17-00163) allows the
operation of a hookah lounge with non -live entertainment only in the form of pre-recorded,
ambient music (without the use of a disc jockey) at the Hookah Hub business, on property
located at 8323 Firestone Boulevard. The Planning Commission shall review Revision "A"
to the Conditional Use Permit six (6) months after a final administrative decision regarding
this modification of conditions.
2) Live entertainment (including disc jockeys, musicians, and dancing) shall be prohibited;
Non -live entertainment in the form of pre-recorded, ambient music (without the use of a
disc jockey) shall be authorized subject to an entertainment permit for such activity.
3) The sale and/or consumption of food and beverages, other than water and soft drinks,
within the subject building is prohibited at all times.
4) The business owner/applicant shall keep the entrance and exit doors to the business
closed.
5) Non -live entertainment shall not be permitted before 6:00 pm and shall cease by 11:30 pm.
6) The permitted hours of operation of the business shall be from 6:00 p.m. to 12:00 a.m.,
seven (7) days a week.
7) The business owner/applicant shall not assess any admittance fee, cover charge, or any
other required charge or minimum payment as a condition of entry.
8) Customers shall not be within the business after the specified closing time.
9) The business owner/applicant and licensee shall not conduct valet parking on the subject site
without the approval of a conditional use permit from the Planning Commission.
10) All signs shall comply with Chapter 6 of Article IX (Land Use) of the Downey Municipal
Code.
11) All promotions of the business shall be conducted under direct control of the business
owner. There shall be no outside promoters of live entertainment or night club activity at
any time.
12) The City Planner is authorized to make minor modifications to the approved plans or any of
the conditions if such modifications shall achieve substantially the same results as would
strict compliance with said plans and conditions.
13) The business shall comply with the City of Downey's noise ordinance, but in any case, no
greater than 65 dBA as measured at the property line. Upon receiving complaints
regarding noise levels, the Director of Community Development may order the preparation
of a noise study. The cost of said noise study shall be paid by the business owner. All
mitigation measures identified in the noise study shall be implemented and become part of
this Conditional Use Permit and shall have the force of conditions of approval.
14) The business owner/applicant agrees, as a condition of approval of this resolution, to
indemnify, defend and hold harmless, at business owner/applicant's expense, City and
City's agents, officers and employees from and against any claim, action or proceeding to
attack, review, set aside, void or annul the approval of this resolution, to challenge the
approval of this resolution on the basis of the California Environmental Quality Act (CEQA),
PLN 17-00183 (Modify CUP) -8323 Firestone Blvd.
November 2, 2017 — Page 4
Resolution No. 17-3039
Downey Planning Commission
or to determine the reasonableness, legality or validity of any condition attached hereto,
City shall promptly notify business owner/applicant of any such claim, action or proceeding
to which City receives notice, and City will cooperate fully with business owner/applicant in
the defense thereof. The business owner/applicant shall reimburse the City for any court
costs and attorney's fees that the City may be required to pay as a result of any such claim,
action or proceeding. City may, in its sole discretion, participate in the defense of any such
claim, action or proceeding, but such participation shall not relieve the business
owner/applicant of the obligations of this condition.
15) Approval of this Conditional Use Permit shall not be construed to mean any waiver of
applicable and appropriate zoning regulations, or any Federal, State, County, and City Taws
and regulations. Unless otherwise expressly specified, all other requirements of the City of
Downey Municipal Code shall apply.
16) The business owner shall ensure that the property and all areas within at least 100 feet of
the hookah lounge are free of any waste or litter generated by the hookah lounge, by 1:00
a.m. the morning following each night of operations.
17) The business owner shall be responsible for ensuring the subject property is free of graffiti
Should graffiti be applied, the business owner/applicant shall remove the graffiti within 24
hours.
18) Customer queuing at the Firestone Boulevard entrance shall be kept against the building
and shall not block accessibility on the public sidewalk. The use of a temporary queue
line—rope is permitted, subject to the approval of the Planning Division and Police
Department.
19) The two northernmost rooms of the business shall be used for storage purposes only,
subject to submission and approval by the City Planner of a current floor/site plan. A sign
shall be posted at the entrance of the hallway that states "employees only".
20) Customer access to the business shall take place from the front entrance, off Firestone
Boulevard. The rear access shall be used as an emergency exit only, and for employees to
conduct normal business operations.
POLICE
21) Live entertainment (including disc jockeys, musicians, and dancing) shall be prohibited,
The business owner/applicant shall obtain and adhere to any and all required Police
Department permits for this Conditional use Permit.
22) During all hours of operation, the business owner/applicant shall comply with and strictly
adhere to the security plan, as approved by the Chief of Police. This shall include the
business owner/applicant providing a minimum of two (2) licensed and bonded, uniformed
patrolmen for security. One security guard shall be posted at the rear exit of the business
to direct customers to the front entrance and to prevent loitering and illegal and suspicious
activity in the parking area. The number of security guards shall be determined by the
Chief of Police and may be increased or decreased as the Chief of Police determines is
necessary, The initial security plan shall be submitted to the Police Department by
November 8, 2017. Should the Police Department request any additional information or
modifications, the business owner/permittee shall submit said revisions within forty-eight
(48) hours of notification.
23) Signs shall be posted at all entrances to the premises and business identifying a zero
tolerance policy for nuisance behavior at the premises (including the parking lot) and "no
PLN 17-00163 (Modify CUP) -8323 Firestone Blvd.
November 2, 2017 – Page 5
Resolution No. 17-3039
Downey Planning Commission
loitering". No patrons or employees shall be allowed to congregate at the rear of the
business.
24) No person below the age of 21 years shall be permitted entry into the business
establishment, and the business operator shall institute an age verification process as
approved by the Downey Police Department as part of a security plan.
25) The business owner/applicant-and licensee shall immediately report to the Police
Department if any patron appears to be involved in illegal activity inside the subject
business or outside in the parking lot area.
26) A copy of this conditional use permit and approved security plan must be maintained on
the premises. All Police Department permits shall be prominently posted on the premises
at all times. The business owner/applicant shall make available said copies upon request
by any Police Officer or other City official charged with the enforcement of the City's laws,
ordinances, or regulations.
27) The business owner/applicant shall prohibit loitering by persons outside the business
establishment — including within the parking area and upon the adjacent right-of-way,
except for those persons in queue along Firestone Boulevard for entry into the business
establishment in a manner approved by the Planning Division and/or Police Department.
28) The business owner/applicant shall impose a dress code that shall not permit patrons to
wear the following: Gang attire/colors, baggy pants, bandanas, back packs, and/or caps
worn backwards.
29) During all hours of operation, the business owner shall maintain a"count of the number of
patrons within the business at any given time.
30) The business owner shall not permit any public nuisance within areas under his control,
including but not limited to, unruly behavior by patrons, or any interactions with passersby.
Areas under his control shall mean the parking lot to the north of the business and
sidewalk in front of the business.
31) Permittee shall consent to and provide access to all areas of the subject premises without
charge during normal business hours to any Police Department or other City Official for
purposes of verifying compliance with any of the Conditions of Approval of this CUP, as
well as with any Police Permit and approved Security Plan.
FIRE
32) The business owner/applicant shall provide emergency lighting, exit signs, and 2A-1 OBC
fire extinguishers to the satisfaction of the Fire Department.
BUILDING
33) The business owner/applicant shall clearly post the maximum occupancy, as determined
by the Building Official. The business owner/applicant shall not permit the actual
occupancy of the building to exceed the maximum allowed.
34) The business owner/applicant shall obtain all required permits and necessary inspections
prior to beginning operation of live entertainment at the subject tenant space.
PLN 17-00163 (Modify CUP) -6323 Firestone Blvd,
November 2, 2017 — Page 6
DRAFT MINUTES
REGULAR MEETING
DOWNEY CITY PLANNING COMMISSION
WEDNESDAY, NOVEMBER 1, 2017
CITY COUNCIL CHAMBERS, 11111 BROOKSHIRE AVENUE
DONEY, CALIFORNIA
6:30 P.M.
Chairman Rodriguez called the November 1, 2017, Regular Meeting of the Planning Commission to order at
6:29 p.m., at Downey City Hall, 11111 Brookshire Avenue, Downey, CA. _After the flag salute, Secretary
Cavanagh called roll
COMMISSIONERS PRESENT: Jim Rodriguez, District 5, Chairman
Miguel Duarte, District 1
Patrick Owens, District 2, Vice Chairman
Steven Dominguez, District 3
COMMISSIONERS ABSENT: Matias Flores, District 4
OTHERS PRESENT: Aldo E. Schindler, Director of Community Development
Yvette Abich Garcia, City Attorney
Jim Eckart, City Prosecutor
David Blumenthal, City Planner
Guillermo Arreola, Principal Planner
Brian Baker, Downey Police Lieutenant
Vincent Rosario, Downey Police Sergeant
Victor Furtado, Downey Fire Investigator
Mary Cavanagh, Secretary
REPORTS:CONFERENCEIMEETING None.
PRESENTATIONS: None.
CHANGES TO THE AGENDA: None:
REPORT ON CITY COUNCIL: Director of Community Development Aldo Schindler reported the City Council
1) issued an urgency moratorium for lot splits and subdivisions for properties zoned R-1 Single Family
Residential. Staff will study the issues over the next 45 days and return to the Council (approximately
11/28/17) to provide their findings. At that time staff may recommend an extension is order, which will
continue the moratorium for an additional 10 months and 15 days to provide staff more time to research the
matter. If more time is needed it can be extended for another year, totaling a period of two (2) years; 2) the
Council heard and approved the second reading on the Cannabis ban.
11
PLN -17-00163 f Modification to a Conditional Use Permit Chairman Rodriguez opened the public
hearing for PLN -17-00163 and Ms. Cavanagh affirmed proof of publication.
City Attorney Yvette Abich Garcia reviewed the procedures for the public hearing item PLN -17-00163 with
the Commissioners.
Principal Planner Guillermo Arreola gave a PowerPoint presentation of the request to modify an
existing Conditional Use Permit (PLN -16-00114), which allows a hookah lounge (Hookah Hub) to
Attachment"t-
operate with live entertainment and dancing, on property located at 8323 Firestone Boulevard and
zoned DDSP (Downtown Downey Specific Plan). On February 15, 2017 the six-month review for the
Conditional Use Permit (CUP) was presented to the Planning Commission, at which time there were
five (5) "calls for service", four (4) were noise related and one (1) was due to the owner hosting a
private event With bottle service._ In the Police Department's opinion, these five (5) "calls for service"
were not considered excessive during a six-month period; however, they did recommend that the
business owner increase security and regularly monitor the rear parking lot during business hours.
Since that time, there have been a number of incidents and "calls for service" that require Police
Department attention. Recent inspections indicate the business was operating in violation of several
conditions of approval. As a result, a meeting was conducted with the business owner (Emad Hanna),
that included staff members from the City's Police, Fire, Planning Departments, and the Chief
Prosecutors office to go over the incidents that had taken place at or in close proximity to the Hookah
Hub, as well as to discuss the results of the Police Department inspection that occurred on
September 16, 2017 which was due to numerous calls for service to the Police Department. The
meeting also included a new site inspection of the business in the presence of the business operator;
at which time, staff found additional evidence that the business was operating in violation of its
conditions of approval. The Fire Department also found numerous Fire and Building Code violations.
Significant incidents included: Assault with a deadly weapon, fights involving gang members and
shootings. Additional calls for service range from theft,_ arguments, yelling and loud noises, taking
place or emanating from the subject site parking lot with the majority taking place after midnight.
Violations of the CUP included dancing in aisles, not on approved dance floor area; the sale and
consumption of food and beverages; cover charges; outside promoters; the use of extra rooms
without City Planner review; lack of security; non -reporting of incidents; loitering in the rear parking
area; dress code not enforced; and admittance of persons under 21 years of age.
The business is operating in violation of terms of the CUP, in a manner that is detrimental to the public
health, safety, and welfare. As such, staff is recommending several amendments to the CUP, including:
No Live Entertainment
Hours of operation: 6:00 p.m. — 12:00 a.m., seven days a week
Customer access from Firestone Boulevard only
Business owner to maintain count of number of patrons at any given time
The northernmost rooms to be used for 'storage purposes only
• At minimum, two security guards, unless the Chief of Police determines additional guards are needed,
one to be located at the rear exittoprevent loitering and one at the front entrance
This application was presented to the Development Review Committee on June 29, 2017 at which time
Conditions of Approval were incorporated by the Planning, Fire, Building and Safety, and Police Departments=
that will reduce the number of incidents in and around the Hookah Hub Lounge, particularly during post -
midnight hours.
The Commissioners commented on the severity of the violations with Downey Police Lieutenant Brian Baker
and discussed the occupancy levels with Fire Investigator Victor Furtado.
Disclosures: Chairman Rodriguez stated he passes by the site on a regular basis and noticed a sign on the
front door directing people to use the rear entrance on two evenings.
Applicant Representative, Benjamin McFadden spoke on behalf of owner/operator Emad Hanna and spoke
regarding the steps they've taken to prevent gang related incidents and introduced new co-owner Phillip
Rivas. Mr. Rivas spoke of the changes he has implemented in his 3 weeks managing the Hookah Hub
Lounge. He discussed meeting with Planning and Fire Departments to ensure they are in compliance with
the City of Downey. As a result of said meeting they have replaced furniture with new more fire resistant
furniture, increased the number of fire extinguishers, replaced flooring, added camera monitors for security
and kitchen staff, added parking lot sweeps to clean up trash and prevent loitering, and increased their prices
-2
and quality to bring a higher end clientele He asked the Planning Commission to consider modifying
Condition No. 3 to include the sale of non-alcoholic beverages in lieu of water only. He stated there will be
no more cover charges for events and all of the ideas previously used are going away. Mr. Rivas explained
that Mr. Hanna owns 15 businesses and was not hands on in operations, and the prior management did not
understand how to run this business. He asked that they be given a chance under Mr. Rivas' direction.
Correspondence: None.
Commissioner Duarte thanked Mr. Rivas for his presentation and said he preferred speaking to Mr. Hanna
regarding the issues that occurred prior to Mr. Rivas' management; however, he was not present to give
testimony. He expressed concern regarding a serious incident related to a fight involving a handgun that did
occur during Mr. Rivas' management of the business on October 21, 2017. Mr. Rivas related the incident to
intoxicated patrons from a "party bus" that pulled up to the establishment. He said the people entered and
were escorted out by security. He reasoned that his neglect in calling the Police Department was the patrons
were already there. He made note that going forward, every time there is an incident, staff will contact the
Police Department as this type of clientele came from the previous promotions; as such, they may have a
repeat of these incidents over the next couple of months.
Commissioner Dominguez asked Mr. Rivas to explain their cooking and use of new stoves, to which
he explained the hookah processes using coals to create the smoke and his meeting with Hazardous
Materials Specialist (HMS) Fire Inspector Lee Kirby, to ensure they are operating safely. He made
note that they do not allow food to be prepared or brought in from other places into the establishment.
Chairman Rodriguez asked for results of his meeting with staff. Mr. Rivas reported he received a summary
of the infractions from Mr. Hanna and met with HMS Fire Inspector Lee Kirby and Building Official Rik Hobbie
to address all issues.
Mr. McFadden briefly discussed the weapons incidents that occurred were off premises; the purpose of the
CUP is to allow for dancing and the restrictions proposed appear more restrictive than if there were no CUP
in plane, particularly the hours, which he believes are more restrictive than if they were operating without
CUP. He asked that the Commission consider the conditions that are more restrictive than would be in
place, absent the CUP.
Chairman Rodriguez expressed concern with the Hookah Lounge targeting patrons aged 18-21. Mr. Rivas
outlined the business operations prior to changes in tobacco laws to 21 & over, the implementation of the
CUP occurring in June of 2016, and the applicant's management as a 21 and over lounge.
Commissioner Dominguez questioned Mr. McFadden's comments regarding the assertion that the weapons
were not on premises. Mr. McFadden clarified, that they were unable to determine if the weapons were
recovered inside or outside.
Public Comments` Alice Ibarra, 8317 Second Street, Downey View resident speaking on her behalf of the
residents who unable to attend due to work schedule the World Series of Baseball's final game. She spoke
of major disturbances from the Hookah Hub due to half of the apartments face the back door of the
establishment and said she tried calling the Hookah Hub, but there was no answer. Ms. Ibarra described an
instance which she described as a flash mob whereas patrons parked across the street near the Dollar Tree
store, running across to the Hookah Lounge and counted at approximately 50 people exiting the back door.
Ms. lbarra emphasized that the disturbances affected their quality of life and their livelihood. She expressed
disappointment in Mr. Rivas' lack of accountability for the disturbances. She is against the live music
because of the sound nuisance from the back door disturbing the residents of the Downey View as many of
them have children. She asked the Commission toreconsiderthe hours of operation to close at 12:00 p.m.
on Friday and Saturday and 10:00 p.m. on Sunday as there are suspicious people hanging out in their cars
after hours.
-3-
Applicant's Rebuttal Mr. Rivas apologized for the incidents that occurred during the previous management;
he offered his personal contact information to report disturbances and is willing to add'a 2nd door entrance to
mitigate the noise affecting the residential neighbors
Staff recommended the Planning Commission adopta resolution to approve the Modification to the CUP.
Chairman Rodriguez closed the public hearing.
Commissioner Duarte said he's gone through the evidence and found there are a lot of egregious acts this
year and over the past few months. Although Mr. Rivas is presenting a better business model, he doesn't
see how eliminating dancing would affect attracting a higher clientele to a "Hookah" establishment: He was
agreeable to modifying to condition no..3 "sale of water only" to add any non-alcoholic beverage. He said in
the three weeks under the new management, he doesn't see enough to go against staff's recommendation.
Commissioner Dominguez voiced his discontent with the operation of the business and said he was appalled
at the total disrespect the owner has demonstrated against the City and the residents. He found the owners'
naivety of the business operations to be false; as an owner of 15 businesses it is part of his business
acumen to be aware of the events that have occurred in his business. He believes the owner egregiously
misrepresented previously to the Commission when he received approval of his CUP. In addition, alcohol
was served in spite of the conditions of the CUP say it is not allowed, and according to the police reports has
been serving alcohol since December of last year. The Planning Commission reviewed and questioned that
in February thought thereto be only six items and thought not to be significant. Clearly those items have
now become very significant. They have assault and battery; discharge of weapons within the City. The
applicant is purposefully and deliberately asking individuals from outside the City to come in by having buses
and DJs and third party promoters coming in to the City; knowing that he was not allowed to do that. There
is a complete disregard for public safety and welfare of the public. The applicant has completely abolished
one of two exits; has been cooking food with gas stoves, creating a welfare and safety menace to fire and
safety of our residents; condoning extreme violence with their actions, and does not understand why the
Planning Commission does not revoke the permit. Commissioner Dominguez concluded he would like to
make a motion that the permit be revoked, if not now, than in six (6) months.
Vice Chairman Owens said, although he found his colleagues comments to be succinct and to the point, he
agrees with most but not on the same level. When this was brought before Commission over a year ago and
the Police Department discussed their concerns regarding incidents of patrons being pushed out the front
door onto Firestone Boulevard, he thought it was a rarity and believed more loitering and hanging out
incidents would occur, so he was liberal in his thinking. He agreed that the lack of stewardship is difficult to
overlook in light of the applicant having 15 businesses and did not think the applicant would mishandle this
business. At the time the businesses was presented he found it to be innovative. He agreed with comments
of not seeing enough of areal move forward; he can't find a way to modify the conditions that staff is
recommending.
Chairman Rodriguez agreed with fellow Commissioners and commented that this is a matter of failing to
perform on the conditions of approval. He thanked staff for the report being extremely thorough and said it is
quite clear that this is a real nuisance and the findings set forth are clearly met from public health to the other
statutes, ordinances and regulations. He believes the hours of operation closing at midnight with ambient
music can still cater to the group they are looking to attract, and finds this modification to the CUP to be quite
fair. He agreed with Commissioner Dominguez in regard to the proposed revocation; however, he finds this
to be a fair compromise to keep the business open. He commented on severity of the issues and the City's
intent in being able to have high quality establishments, and this is not representative of that goal. In
addition, he believes that the conditions to allow the business to maintain the CUP are quite fair and was
agreeable in allowing non-alcoholic beverages.
The Commissioners discussed options to return in six months to follow up on business operations with
-4-
staff, and if necessary, revoke the CUP.
The Commissioners discussed modifying Condition No. 3 to include non-alcoholic beverages. City Planner
David Blumenthal together with City Prosecutor Jim Eckart reviewed the Attorney General's interpretation of
the State Labor Code regarding tobacco sales in conjunction with beverages.
Commissioner Dominguez motioned to approve the Revision to Conditional Use Permit PLN -17-00163 with
the modifications that have been put forth by staff. The motion died for lack of a second.
Commissioner Duarte disagreed with the City Prosecutors interpretation of the Attorney General's
interpretation of the State Labor Code regarding tobacco sales and does not believe them to be binding. City
Attorney Yvette Garcia explained the Attorney General's opinions are persuasive authority and they are
given great weight in a court of law; however, they are not binding.
Commissioner Dominguez was adamantly against modifying the conditions of approval, in particular,
Condition No. 5 regarding ambient music as it is a recommendation of the Downey Police Department to
cease music by 11:30 p.m. He was not agreeable to modifying Condition No. 3 allowing the sale of non-
alcoholic beverages due to the history of the business operations.
Commissioner Duarte stated that although the issues presented are very upsetting, he found it irrelevant to
allowing the sale of non-alcoholic beverages, nor did take issue with extending non -live entertainment
(ambient music) to closing hours.
The Commissioners discussed extending the hours for ambient music to closing with Downey Police
Lieutenant Brian Baker, who explained that businesses tend to play more of a radio club music that includes
dance music and is loud singing. Lt. Baker's recommendation is to shut the music off well before the
business is due to close, this allows them time to vacate the business by closing time. If they are allowed to
extend the music to midnight, this will extend their operating hours.
The Commissioners discussed the definition of ambient music and related issues with City Prosecutor Jim
Eckart.
The Commissioners discussed modifying Condition No. 3 as follows:
3) The sale and/or consumption of food and, beverages, inGWdiPq4Wahe4Gbevefage6, other
than water and soft drinks within the subject building is prohibited at all times. Water Fnay
It was moved by Chairman Rodriguez, seconded by Vice Chairman Owens, and passed by a 4-0-1 vote, to
adopt Resolution No. 17-3039, with modified condition(s) as stated, thereby approving the Modification to a
Conditional Use Permit (PLN -17-00163).
NON -AGENDA PUBLICCOMMENTS: None.
CONSENT CALENDAR ITEMS: None.
OTHER BUSINESS: None.
STAFF MEMBER COMMENTS None.
ADJOURNMENT: Chairman Rodriguez adjourned the meeting at 8:00 p.m., to Wednesday, November 15,
2017, at 6:30p.m. at Downey City Hall, 11111 Brookshire Ave.
-5-
APPROVED AND ADOPTED this 17°h day of January, 2018.
Patrick Owens, Vice -Chairman
City Planning Commission
I HEREBY CERTIFY that the foregoing Minutes were duly approved at a Regular meeting of the Planning
Commission held on this 17 th day of January, 2018, by the following vote6
sm
Mary Cavanagh., Secretary
City Planning Commissi•�F7
on
reT MV•in
ZONING: DDSP (DOWNTOWN DOWNEY SPECIFIC PLAN — FIRESTONE
BOULEVARD GATEWAY DISTRICT)
On August 17, 2016, the Planning Commission approved a Conditional Use Permit (original
case number PLN -16-00114), which allows live entertainment and dancing in conjunction with
ihe operation of an existing hookah lounge (Hookah Hub). Since the approval of the condition
use permit, there have been a number of incidents and ucalls for service" that require Police
Department attention. Additionally, recent inspections indicate the business is operating in
violations of several conditions of approval. As such, the Hookah Hub is operating in a mannell
detrimental to the public health, safety, and welfare.
-FIMI-ar - - Trop
of the City Planner, may revoke or modify upon majority vote upon a finding that, amongst other
grounds, (1) the use is being operated in a manner that is detrimental to the public health,
safety, welfare, and public convenience or is a public nuisance, or (2) the use is being
conducted in violation of the terms and condons of the permit or in violation of any statute,
ordinance, law, or regulation. The City Planner has determined that there are reasonable
grounds to modify the Conditional Use Permit and recommends that the Planning Commission
adopt the following resolution:
The project site is located on the north side of Firestone Boulevard, east of Downey Avenue.
tp
irtcludesq
ME I
INN W16MIIIII&MC a I I I i IWM.I WMI11,1111 11W
the business. The DOW n Downey tpeoffid pla� OSP) eWsloft the Firestone Boulevar
Gateway District as a lively, area consisting of high intensity/density development with flexible
retail, office, and residential space. Entertainment uses such as bowling, sports bars, and
dancing may also • located in this District. I
Street View — Hookah Hub
General Plan, Zqq!"d Ex Land Use
1
• -
eral Plan
•
I
•
Mixed Use
DDSP
On Aug(utt 17P 2016, the Planning Commission adopted RdsolWon Nd. 12-2990i thereby
approving, to allow an "t6rig hookah lounge (Hookah Hub� to WdMo live entertainment and
Aancing on property looatod832� Firestone Boulevard.
UUMffWUMk an
IM I III! I IIIIIIIIRii III II
8323 Firestone Blvd — PLN -1 7-00163
November 1, 2017— Page 2 PC Agenda Page 2
violation of several conditions of approval, including modifications to the floor plan, as well as
allowing the sale and consumption of food on the premises.
On September 20, 2017, representatives from the Police, Fire, Planning, and the City's
Prosecutor's Office, met with the business owner, Mr. Emad Hanna to go over recent incidents
that have taken place at the Hookah Hub, or in close proximity to the Hookah Hub, as well as to
discuss the results of the Police Department inspection that occurred on September 16, 2017.
The meeting also included a new site inspection of the business in the presence of the business
operator; at which time, staff found additional evidence that the business was operating in
violation of its Conditions of Approval. The Fire Department also found numerous Fire and
Building Code violations.
On October 11, 2017, staff mailed the business owner notice informing him that the City of
Downey initiated the process of modifying the existing conditional use permit.
On October 19, 2017, staff mailed notice of the pending public hearing to all property owners
within 500 feet of the subject site and the notices were also published in the Downey Patriot.
DISCULSION
Although the conditional use permit authorizing live entertainment at the Hookah Hub was only
issued in August 2016, the Police Department has confirmed numerous violations of the
conditions of the CUP. The Police Department also received a formal complaint regarding public
nuisance conditions caused and/or allowed by the operators of the Hookah Hub. Specifically,
litter (including fastfood discards, bottles, used condoms, and underwear), drug paraphernalia,
and vomit have been found in these parking areas on weekends and Monday mornings.
The full Police Department analysis is attached hereto, but some of the incidents include:
• On Sunday, June 25, 2017 between 2:40 a.m. and 3:00 a.m., a female patron of the
Hookah Hub got into a verbal altercation with a male patron of the Hookah Hub in the
rear parking lot of the establishment. The male victim indicated that he had been
intoxicated when he entered the Hookah Hub at approximately midnight, danced and
talked to female patrons inside until approximately 2:40 a.m. or 3:00 a.m., when he left
the establishment. Both the suspect and the victim walked out of the parking lot towards
the First Baptist Church parking lot. The female suspect used a kitchen -style knife and
cut the male victim — resulting in the need for medical attention; and
• On Sunday, September 3, 2017, at approximately 1:07 a.m., a female patron of the
Hookah Hub reported that she observed a fight in the parking lot, and began recording
the fight on her cell phone, another patron slapped the phone out of her hand, punched
her in the face multiple times, and ripped a gold necklace from her neck. The suspects
identified themselves as being members of a criminal street gang. Although the victim
reported the incident to the Police Department within 30 minutes of its occurrence,
neither the operator nor any agent ever reported this incident to the Downey Police
Department (Violation of condition #20 of the approved Conditions of Approval); and
On September 16, 2017, at approximately 1:12 a.m., Downey Police Department
responded to a "shots fired call" in the corridor between City Hall and the Downey City
Library. While investigating the matter, witnesses reported that a fight initiated inside of
the Hookah Hub and was carried outside to the rear parking area of the business. A
8323 Firestone Blvd — PLN -17-00163
November 1, 2017 —Page 3
PG Agenda Page 3
suspect chased a patron of the Hookah Hub from the rear parking lot through the
Embassy Suites parking lot, and into the corridor between City Hall and the City Library.
Once in that area, the suspect shot the victim. Interviews with witnesses from the
Hookah Hub confirmed that a fight had occurred inside the establishment before the
shooting. Neither the operator nor any agent thereof reported any aspect of this incident
to the Downey Police Department (Violation of condition #20 of the approved Conditions
of Approval); and,
On Saturday, October 21, 2017, at 2:40 a.m., the Police Department responded to a
fight that took place at the Hookah Hub. One person involved in the fight was found with
a loaded handgun and was subsequently arrested.
There have also been numerous "calls for service", which range from arguments, yelling and
loud noises, fighting, theft, and drinking. The "calls for service" were a result of incidents
emanating from, and/or, taking place in the parking lot. A total of 30 "calls for service" have been
made since October 23, 2016, which required a Police Department response. A majority of
these incidents take place after midnight.
During the September 20th, 2017 meeting the business owner, representatives of the City's
Police Department, Fire Department, and Planning Division, as well as the City Prosecutor, met
with the business owner of the Hookah Hub to discuss the recent incidents that occurred at or
near the Hookah Hub — in addition to the violations of the CUP that the Police Department had
confirmed. This meeting culminated in a site inspection being conducted by staff. During the
inspection, staff found the business was operating in violation of the following conditions of
approval (Resolution No. 16-2990):
2) Dancing area shall only be located adjacent to the preplemployee area as
designated on the approved floor plan. Also, dIsc jockeys, live bands, and
musicians shall be located along the easterly wall of the subject tenant space,
near the employer's office.
mediaUpon inspection of the facility, as well as photographs of the business on their soc a
page, people routinely dance within the_ of the business. . -
there is no physically designated area for dancing. Presentlyi the dance floor area is
improved with couches and tables, requiring people to dance in the aisles.
3) The sale and/or • • •. :.. of food andalcoholicbeverages subject
building are prohibited at all times.
The business has promoted "Taco Tuesdays" on multiple occasions, and also
advertises the sale of tacos on their Facebook page. The Police Department observed
on a least one occasion that two women were present at the site (in an unapproved
portion of the business) preparing to cook tacos — which the owner stated was
arranged by a promoter and not by him). The Police Department also confirmed that
the business at one point was selling nachos made on site (which has purportedly
been discontinued) and their-states-makeand _ smoothies.
Inspection of the business revealed cooking equipment, and the business provided the
sale of pre-packaged candy/snacks. The condition specifically states that the "sale
and/or of food prohibited."This also prohibits patrons ordering
food from a different establishment and, bringing it into the premises for consumption,
which the owner admitted happens on occasion.
8323 Firestone Blvd - PLN -17-00163
November 1, 2017 -Page 4
PC Agenda: Page 4
charge7) The business owner/applicant is permitted to patrons an admission fee
sportingto enter the business during pay-per-view _
shall be no
cover charge at any other time.
Promotional material clearly demonstrates that Hookah Hub assesses cover charges
(ranging from $5 to $10) to enter the establishment on days that do not correspond to
pay-per-view sporting events. The owner state that the "cover charge" is NOT a cover
charge — and is merely a partial payment of approximately 50% of the hookah fee paid
upon entering the premises between 11:00 p.m. and 2:00 a.m. - with any remaining
balance to be paid upon ordering the tobacco/hookah. Although a hookah (ranging in
cost between $10 and $30) is normally shared amongst multiple patrons sitting
together, every patron entering the business is required to pay a fixed fee (bearing no
relation to the product to be rented/purchased) upon entering the business between
9:00 p.m. and 2:00 a.m. If a patron fails to purchase anything and leaves after
entering, the patron does not get his/her money back. According to the business
owner, this is to keep people from entering the business and not purchasing anything.
11) All promotions of the business shall be conducted under direct control of the
business owner. There shall be no outside promoters of live entertainment or
night club activity at any time.
The owner indicated that the business regularly hires three different promoters — and
according to the owner, the promoters are individually responsible for the
advertisements and for hiring of the persons preparing the food (e.g., tacos). Based
upon the promotional material, the assessment of a cover charge, and the allowance
of a DJ and dancing, the business appears to be marketed and operated more as a
night club than as a hookah lounge.
comply17) The owneriapplicant shall o the security plan,
as approved by the Chief of Police. This shall include
-
._
providing a minimum of two (2) licensed . bonded, uniformed patrolmen
One . shall be posted
. one
number of security guards shall be determined by the Chief of Police and may
increasedbe or decreased as the Chief of Police determines is necessary.
According
.: r • to
owner, : •-. ofsecurityguardsdependstime ofnight.
Friday and f. is • • 9 • ity guard
f •:securityguards
guards
Tuesday: f: isecurity guards
No security guards are provided on Sundays, Mondays Wednesdays, or Thursdays.
At no point business operator had _validlyappovedsecurity plan. own-
finally submitted a security plan on October, 5, 2017, however, the Police Department
requested additional information. A revised security plan has not been submitted as o
the wNtiog of this report. Additionally, the business operator is failing 6�tomply with th
minimum number of security guards required by the Conditional Use Permit.
8323 Firestone Blvd - PLN -17-00163
November 1, 2017 -Page 5
PC Agenda Page 5
Firestone) is not being used. A sign was posted on the security door that informs
patrons "to use the backdoor". This same doorway was blocked by furniture during the
inspection by the Police Department. This use of the rear entrance as the "main"
entrance to the building poses a significant risk to patrons walking into the
establishment, as they could easily injure themselves and have unprotected access to
the storage of charcoal/ashes.
During the September 20th inspection of the business, the City of Downey Fire Department also
found numerous violations that are a threat to public health and safety, which include, but are
not limited to the following:
• Unpermitted security door installed at business front entrance; and,
• Front business entrance blocked with furniture. Tables and chairs blocked the egress
corridor leading from the north alley exit access; and,
• The business lacked the number of required properly rated, and sized fire extinguishers;
and,
• The business lacks an occupancy load sign, which is required to be conspicuously
posted at or near the main entrance; and,
• The business has failed to provide approved, listed containers for storage of and
management of hot ashes, charcoal briquettes; and,
• The use of extension cords for permanent wiring throughout the business.
The business owner has been notified of these violations (Notice of Violation attached) and has
until November 1, 2017 to correct the violations.
In the apparent regular course of business, the operator of the Hookah Hub has been in
violation of the conditions of approval. Additionally, the business operator has allowed
dangerous conditions to exist at the site in violation of the Downey Building and Fire Codes. The
business owner stated that he was unaware of the conditions of approval; however, as noted in
the minutes dated August 17, 2016, Mr. Lee Rabun, representing owner Mr. Emad Hanna,
stated that they read and agreed to all but one of the conditions of approval (closing hours).
California Labor Code§6404.5 prohibits smoking in places of employment with few exceptions.
One of those exceptions is within"private smokers' lounges" — which include hookah lounges.
However, according to the Attorney General Opinion 09-507, in order to be exempt from the
workplace smoking prohibition, a smokers' lounge must, amongst other requirements, be
dedicated and wholly committed to the use of tobacco products — to the complete exclusion of
other activities. It is staff's opinion adding live entertainment to the hookah business has allowed
them to operate as a nightclub, rather than as a private smokers lounge. Hookah Hub is no
longer "dedicated and committed to the sale and use of tobacco products and should no longer
be permitted to maintain live entertainment.
The California Penal Code §308(a)(1)(A)(i) makes it a misdemeanor for anyone to sell or furnish
any tobacco or instrument or paraphernalia designed for the smoking of tobacco to any person
under 21 years of age (unless the person is in an active duty military personnel who is 18 years
of age or older). Even if a hookah pipe is used to smoke non -tobacco products (e.g. herbal
shisha), it is still considered tobacco paraphernalia designed for smoking tobacco, and therefore
cannot be sold to or given to anyone under the age of 21 for any type of use. Copies of flyers
8323 Firestone Blvd - PLN -17-00163
November 1, 2017 — Page 7
and the social media page for Hookah Hub indicate that it caters to people 18 years of age and
over — despite the fact that the Hookah Hub is prohibited from selling or providing tobacco or
tobacco paraphernalia to persons under the age of 21.
Given that the Hookah Hub must be wholly committed and dedicated to the smoking of tobacco
products and in light of the fact that State law prohibits the sale or provision of tobacco and
tobacco paraphernalia to persons under 21 years of age, Staff recommends that the Conditional
Use Permit be modified to limit entry to those that are 21 years of age or older.
Based on the current operations of the business and the resulting public safety incidents
outlined in this report, Staff believes that the operation of the business under the current
conditions of approval is detrimental to the public health, safety and welfare. Most concerning is
the time of the incidents, which mostly occur after midnight, along with the operation of the
establishment with live entertainment (which is heavily promoted and likely a contributing factor
to much of the nuisance activities at the site). As such, staff feels it is appropriate to modify the
conditions of approval in order to reduce the magnitude and number of incidents impacting the
neighboring properties, and the community as a whole. Furthermore, failure to comply can result
in the Planning Commission revoking the Conditional Use Permit and closing the business.
Staff is recommending that the following condition be revised or removed:
2)
3)
The approval of Revision "A" to a Conditional Use Permit (PLN -17-00163) allows the
operation of a hookah lounge with non -live entertainment only in the form of pre-recorded,
ambient music (without the use of a disc jockey) at the Hookah Hub business, on property_
located at 8323 Firestone Boulevard. The Planning Commission shall review Revision "A"
to the Conditional Use Permit six (6) months after a final administrative decision regarding
this modification of conditions.
Live entertainment (including disc jockeys, musicians, and dancing) shall be prohibited.
Non -live entertainment in the form of pre-recorded, ambient music (without the use of a
disc jockey) shall be authorized subject to an entertainment permit for such activity.
The sale and/or consumption of food, beverages, including alcoholic beverages, within the
subject building is prohibited at all times. Water may be sold and consumed within the
premises.
5)
'WO, entwtainment Shall --I t-
8323 Firestone Blvd - PLN -17-00163
November 1, 2017 —Page 8
PC Agenda Page 8
31
M
The permitted hours of operation of the business be from • 11 • r tt _
seven days a week.
The business owner/applicant shall not assess any admittance fee, cover charge, or any
other required charge or minimum payment as a condition of entry.
The business shall comply with the City of Downey's noise ordinance, but in any case, no
greater than 65 dBA as measured at the property line. Upon receiving complaints
regarding noise levels, the Director of Community Development may order the preparation
of a noise study. The cost of said noise study shall be paid by the business owner. All
mitigation measures identified in the noise study shall be implemented and become part of
this Conditional Use Permit and shall have the force of conditions of approval.
22) During all hours of operation, the business owner/applicant shall comply with and
strictly adhere to the security plan, as approved by the,Chief of Police. This shall
include the business owner/applicant providing a minimum of two (2) licensed and
bonded, uniformed patrolmen for security. One security guard shall be posted at the
rear exit of the business to direct customers to the front entrance and to prevent
loitering and illegal and suspicious activity in the parking area. The number of
security guards shall be determined by the Chief of Police and may be increased or
decreased as the Chief of Police determines is necessary. The initial security plan
shall be submitted to the Police Department by November 8, 2017. Should the Police
Department request any additional information or modifications, the business
owner/permittee shall submit said revisions within forty-eight (48) hours of
notification.
8323 Firestone Blvd PLN -17-00163
November 1, 2017 — Page 9
PC Agenda Page'9
21) Liveentertainment (including disc jockeys, musicians, and dancing) shall be
prohibited. The business owner/applicant shall obtain and adhere to any and all
required Police Department permits for this Conditional Use Permit.
24) No person below the age of 21 years shall be permitted entry into the business
establishment, and the business operator shall institute an age verification process
as approved by the Downey Police Department as part of a security plan.
27) The business owner/applicant shall prohibit loitering by persons outside the business
establishment — including within the parking area and upon the adjacent right-of-way,
except for those persons in queue along Firestone Boulevard for entry into the
business establishment in a manner approved by the Planning Division and/or Police
Department.
In addition to the modified conditions, staff recommends that the following condition be added;_
Customer access to the business shall take place from the front entrance, off Firestone
Boulevard. The rear access shall be used as an emergency exit only, and for employees
to conduct normal business operations.
• The business owner shall ensure that the property and all areas within at least 100 feet
of the hookah lounge — including adjacent parking area — are free of any waste or litter
generated by the hookah lounge or its patrons, by 1:00 a.m. the morning following each
night of operations.
The business owner shall be responsible for ensuring the subject property is free of litter'`
and graffiti. Should graffiti be applied, the Applicant shall remove the graffiti within 24
hours.
The business owner shall not permit any public nuisance within areas under his control,
including but not limited to, unruly behavior by patrons, or any interactions with
passersby. Areas under its control shall include the parking lot to the north of the
business and sidewalk in front of the business.
Customer queuing at the Firestone Boulevard entrance shall be kept against the building
and shall not block accessibility on the public sidewalk. The use of a temporary queue
line -rope is permitted, subject to the approval of the Planning Division and Police
Department.
During all hours of operation, the business owner/permittee` shall maintain a count of the
number of patrons within the business at any given time.
The two northernmost rooms of the business shall be used for storage purposes only,
subject to submission and approval by the City Planner of a current floor/site plan. A
sign shall be posted at the entrance of the hallway that states "employees only".
8323 Firestone Blvd —PLN -17-00163
November 1, 2017 — Page 10
PC Agenda "Page 10
• Permittee shall consent to and provide access to all areas of the subject premises
without charge during normal business hours to any Police Department or other City
Official for purposes of verifying compliance with any of the Conditions of Approval of
this CUP, as well as with any Police Permit and approved Security Plan.
The Development Review Committee met on October 5,-2017 to discuss the operation of the
Hookah Hub. Representatives from the Police, Fire, Building, Planning, and City Prosecutor's
Office met to discuss the issues found during the September 16, 2017 inspection and the
meeting with the business owner on September 20, 2017. Based on the number of violations
found at the business by the Fire, Police and Planning; Departments, as well as the number of
incidents reported to the Police Department, staff felt that there was sufficient evidence to begii
the process to modify the existing conditional use permit.
ENVIRONMENTAL ANALYSIS'
Staff has reviewed the proposed use in with the California Environmental Quality
Act (CEQA) Guidelines and determined that it is categorically exempt from CEQA, pursuant to
Guideline Section No. 15321 (Class 21, Enforcement of Actions by Regulatory Agencies).
Categorical Exemptions are projects which have been exempted from the requirements of the
CEQA because they do not have a significant effect on the environment.
Municipal Code Section 9828.06(c) sets forth six potential findings that the Planning
Commission could make in order to modify or revoke a Conditional Use Permit. The Planning
Commission is only required to make any one of the six findings in order to take action. Staff is
of the opinion that the following two findings can be made in a positive manner, justifying the
modification:
2. The use is being conducted in violation of the terms and conditions of the permit
or variance or in violation of any statute, ordinance, law, or regulation.
The use is being conducted in violation of the terms and conditions of the approved
conditional use permit, in that during the apparent regular course of business, the
operator of the Hookah Hub has (i) failed to immediately report illegal activity occurring
at the site; (ii) failed to provide adequate security personnel and services; (iii) prepared
8323 Firestone Blvd PLN -17-00163
November 1, 2017 — Page 11
PC Agenda Page 11
CORRESPONDENCE
As of the date that this report was printed, staff has not received any correspondence regarding
this matter.
Due to the numerous complaints and criminal incidents associated with the Hookah Hub, the
hours of operation should be curtailed, and live entertainment and dancing should be
discontinued, and certain conditions of approval should be modified. Reasonable grounds exist
to modify the Conditional Use Permit, pursuant to Section 9828 of the Downey Municipal Code,
because the use is being operated in a manner that is detrimental to the public health, safety,
welfare, and public convenience, is a public nuisance, and the use is being conducted in
violation to the terms and conditions of the conditional use permit. It is staff's opinion that by
modifying the conditions of approval, many of the complaints associated with the Hookah Hub
business will be reduced. Therefore, staff recommends that the Planning Commission modify
Conditional Use Permit PLN -17-00163 (Revision 'A' to PLN -16-00114), as outlined in the Draft
Resolution.
EXHIBITS
A. Maps —Area, Aerial
B. _Resolution
C. Police Dep_ - - . • October 10, 2017
D. Police Department . Service
AttorneyE. Fire Department Notice of Violation
F. - Opinion 09-507
AugustG. r Commission ResolutionNo. 16-2990 and MinuI FebruaryH. J r • • -•• •Minutes
1. ApprovedFloor
J. • •
8323 Firestone Blvd — PLN -17-00163
November 1, 2017 — Page 12
PC Agenda Page 12
Exhibit— a
Location Map
8323 Firestone Blvd — PLN -17-00163
November 1, 2017 — Page 13
PC Agenda Page 13
8323 Firestone Blvd — PLN -17-00163
November 1, 2017 — Page 14
C Agenda Page 1
SECTION 1. The Planning Commission of the City of Downey does hereby find, determine
and declare that:
A. On August 17, 2016, the Planning Commission adopted Resolution No. 12-2990,
thereby approving a Conditional Use Permit to allow a hookah lounge (Hookah
Hub) with live entertainment and dancing to operate on property located 8323
Firestone Boulevard; and,
B, On February 15, 2017 the six-month review for the Conditional Use Permit No was
presented to the Planning Commission for review. At that time, there were five (5)
"calls for service", of which four (4) were noise related and one (1) was because
due to the owner hosting a private event with bottle service. In the Police
Department's opinion, these five (5) "calls for service" were not considered
excessive during a six-month period; however, they did recommend that the
business owner increase security and regularly monitor the rear parking lot during
business hours; and,
C. from October 23, 2016 to October 21, 2017, the Police Department has received
several "calls for service" regarding the Hookah Hub, and serious incidents have
occurred in and around the Hookah Hub business, which have resulted in criminal
activities, and an increase in Downey Police Department patrols in the area. These
incidences --consumption of alcohol, loud noises, fights, and theft, have taken place
inside and in the parking lot area of the Hookah Hub; and,
D. On September 16, 2017, the Downey Police Department conducted an inspection
of the hookah business and found that the business was operating in violation of
several conditions of approval, including modifications to the floor plan, the sale
and consumption of food on the premises and other violations of the previously
approved conditions of approval; and,
E. On September 20, 2017, representatives from the Police, Fire, Planning, and the
Prosecutor's Office, met with the business owner, _r Hanna to s•
over recent incidents that have taken place at the Hookah Hub, or in relation to the
Hookah Hub, as well as the Septemi ber 16, 2017 Police Department inspection,
The meeting also included a site inspection of business, - ry staff found
that the business was operating in violation of the approved conditions of approval,
The Fire Department also found numerous Fire Code violations; and,
F. The City Planner determined that the numerous complaints_ • criminal incidents
associated with the Hookah Hub business, are reasonable grounds to modify the
conditional use permit, pursuant to Section 9828 of the Downey Municipal Code,
•'
Resolution No. 17 -
Downey Planning Commission
G. On October 19, 2017, notice of the pending public hearing was sent to all property
owners within 500' of the subject site and the notice was published in the Downey
Patriot, and,
H. The Planning Commission held a duly noticed public hearing on November 1, 2017,
and, after fully considering all oral and written testimony and facts and opinions
offered at aforesaid public hearings, adopted this Resolution modifying the
Conditional Use Permit.
SECTION 2. The Planning Commission further finds, determines and declares the
environmental impact of the proposed modification has been reviewed and has been found to be
in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt
from CE A, pursuant to Guideline Section No. 15321 (Class 21, Enforcement of Actions by
Regulatory Agencies). Categorical Exemptions are projects which have been exempted from the
requirements of the CEQA because they do not have a significant effect on the environment.
SECTION 3. Having considered all of the oral and written evidence presented to it at said
public hearings, the Planning Commission further finds, determines and declares that:
A. The use is being operated in a manner that is detrimental to the public health, safety,
welfare, and public convenience or is a public nuisance. Based the information provided,
the business operator has operated the business in a manner that is detrimental to the
public health, safety, and welfare of the patrons and the general public. The business is
being operated in violation of numerous conditions of approval, and the Police Department
has received several complaints regarding the noise associated With patrons leaving and
entering the Hookah Hub, particularly post -midnight. There have also been incidents
involving criminal activities which include: aggravated robbery, multiple assaults, thefts,
and assault with a deadly weapon. For these reasons, the Modification to the Conditions of
Approval is necessary to prevent further impacts to the public health, safety, welfare, and
public convenience and stop the business from being a public nuisance.
B. The use is being conducted in violation of the terms and conditions of the permit or
variance or in violation of any statute, ordinance, law, or regulation. The use is being
conducted in violation of the terms and conditions of the approved conditional use permit,
in that during the apparent regular course of business, the operator of the Hookah Hub has
.. ..- _KK .• • .-
zo
Jo of ill -
PLN 17-00163 (Modify CUP) - 8323 Firestone Blvd_.
November 2, 2017 — Page 2
Resolution No. 17 -
Downey Planning Commission
necessary to preserve the health, safety and general welfare of the community and ena ble the
Planning Commission to make the findings set forth in the previous sections. The conditions are
fair and reasonable for the accomplishment of these purposes.
SECTION 5. The Secretary shall certify the adoption of this Resolution.
MR. ff.- - - - W
leg �71 ul M I 1 811 $110111
I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted ft
November, 2017, by the following vote, to wit:
PLN 17-00163 (Modify CUP) — 8323 Firestone Blvd.
November 2, 2017 — Page 3
Resolution No. 17-
Downey Planning Commission
CONDITIONS is APPROVAL 10 .
PLANNING
1) The approval of Revision °"K to a Conditional Use Permit (PLN -17-00163) allows the
operation of a hookah lounge with non -live entertainment only in the form of pre-recorded,
ambient music (without the use of a disc jockey) at the Hookah Hub 'business, on property
located at 8323 Firestone Boulevard. The Planning Commission shall review Revision 'A
to the Conditional Use Permit six (6) months after a final administrative decision regarding
this modification of conditions.
2) Live entertainment (including disc jockeys, musicians, and dancing) shall be prohibited.
Non -live entertainment in the form of pre-recorded, ambient music (without the use of a
disc jockey) shall be authorized subject to an entertainment permit for such activity.
3) The sale and/or consumption of food, beverages, including alcoholic beverages, within the
subject building is prohibited at all times. Water may be sold and consumed within the
premises.
4) The business owner/applicant shall keep the entrance and exit doors to the business
closed.
5) Non -live entertainment shall not be permitted before 6:00 pm and shall cease by 11:30 pm.
6) The permitted hours of operation of the business shall be from 6:00 p.m. to 12:00 a.m.,
seven (7) days a week.
7) The business owner/applicant shall not assess any admittance fee, cover charge, or any
other required charge or minimumpayment as a condition of entry.
8) Customers shall not be within the business after the specified closing time.
9) The business owner/applicant and licensee shall not conduct valet parking on the subject site
without the approval of a conditional use permit from the Planning Commission.
10) All signs shall comply with Chapter of Article IX (Land Use) of the Downey Municipal
Code.
11) All promotions of the business shall be conducted under direct control of the business
owner, Where shall be no outside promoters of live entertainment or night club activity at
any time.
12) The City Planner is authorized to makes minor modifications to the approved plans or any of
the conditions if such modifications shall achieve substantially the same results as would
strict compliance with said plans and conditions.
13) The business shall comply with the City of Downey's noise ordinance, but in any'case, no
greater than 65 dBA as measured at the property line. Upon receiving complaints
regarding noise levels, the director of Community Development may order the preparation
of a noise study. The cost of said noise sturdy shall be paid by the business owner. All
mitigation measures identified in the noise study shall be implemented and become pari of
this Conditional Use Permit and shall have the force of conditions of approval.
14) The business owner/applicant agrees, as a condition of approval of this resolution, to
indemnify, defend and hold harmless, at business ownertapplicants expense, City and
City's agents, officers and employees from and against any claim, action or proceeding to
attack, review, set aside, void or annul the approval of this resolution, to challenge the
PLN 17-00163 (Modify CUP) - 8323 Firestone Blvd.
November 2, 2017 — Page 4
Resolution No. 17 --
Downey Planning Commission
approval of this resolution on the basis of the California Environmental Quality Act (CEQA),
or to determine the reasonableness, legality or validity of any condition attached hereto.
City shall promptly notify business owner/applicant of any such claim, action or proceeding
to which City receives notice, and City will cooperate fully with business owner/applicant in
the defense thereof. The business owner/applicant shall reimburse the City for any court
costs and attorney's fees that the City may be required to pay as a result of any such claim,
action or proceeding. City may, in its sole discretion, participate in the defense of any such
claim, action or proceeding, but such participation shall not relieve the business
owner/applicant of the obligations of this condition.
15) Approval of this Conditional Use Permit shall not be construed to mean any waiver of
applicable and appropriate zoning regulations, or any Federal, State, County, and City laws
and regulations. Unless otherwise expressly specified, all other requirements of the City of
Downey Municipal Code shall apply.
16) The business owner shall ensure that the property and all areas within at least 100 feet of
the hookah lounge are free of any waste or litter generated by the hookah lounge, by 1:00
a.m. the morning following each night of operations.
17) The business owner shall be responsible for ensuring the subject property is free of graffiti.
Should graffiti be applied, the business owner/applicant shall remove the graffiti within 24
hours.
18) Customer queuing at the Firestone Boulevard entrance shall be kept against the building
and shall not block accessibility on the public sidewalk. The use of a temporary queue
line—rope is permitted, subject to the approval of the Planning Division and Police
Department.
19) The two northernmost rooms of the business shall be used for storage purposes only,
subject to submission and approval by the City Planner of a current floor/site plan. A sign
shall be posted at the entrance of the hallway that states "employees only".
20) Customer access to the business shall take place from the front entrance, off Firestone
Boulevard. The rear access shall be used as an emergency exit only, and for employees to
conduct normal business operations.
POLICE
21) Live entertainment (including disc jockeys, musicians, and dancing) shall be prohibited.
The business owner/applicant shall obtain and adhere to any and all required Police
Department permits for this Conditional use Permit.
22) During all hours of operation, the business owner/applicant shall comply with and strictly
adhere to the security plan, as approved by the Chief of Police. This shall include the
business owner/applicant providing a minimum of two (2) licensed and bonded, uniformed
patrolmen for security. One security guard shall be posted at the rear exit of the business
to direct customers to the front entrance and to prevent loitering and illegal and suspicious
activity in the parking area. The number of security guards shall be determined by the
Chief of Police and may be increased or decreased as the Chief of Police determines is
necessary. The initial security plan shall be submitted to the Police Department by
November 8, 2017. Should the Police Department request any additional information or
modifications, the business owner/permittee shall submit said revisions within forty-eight
(48) hours of notification.
23) Signs shall be posted at all entrances to the premises and business identifying a zero -
tolerance policy for nuisance behavior at the premises (including the parking lot) and "no
PLN 17-00163 (Modify CUP) — 8323 firestone Blvd.
November 2, 2017 — Page 5
Resolution No. 17 -
Downey Planning Commission
loitering". No patrons or employees shall be allowed to congregate at the rear of the
business.
24) No person below the age of 21 years shall be permitted entry into the business
establishment, and the business operator shall institute an age verification process as
approved by the Downey Police Department as part of a security plan.
25) The business owner/applicant and licensee shall immediately report to the Police
Department if any patron appears to be involved in illegal activity inside the subject
business or outside in the parking lot area.
26) A copy of this conditional use permit and approved security plan must be maintained on
the premises. All Police Department permits shall be prominently posted on the premises
at all times. The business owner/applicant shall make available said copies upon request
by any Police Officer or other City official charged with the enforcement of the City's laws,
ordinances, or regulations.
27) The business owner/applicant shall prohibit loitering by persons outside the business
establishment — including within the parking area and upon the adjacent right-of-way,
except for those persons in queue along Firestone Boulevard for entry into the business
establishment in a manner approved by the Planning Division and/or Police Department.
28) The business owner/applicant shall impose a dress code that shall not permit patrons to
wear the following: Gang attire/colors, baggy pants, bandanas, back packs, and/or caps
wornbackwards.
29) During all hours of operation, the business owner shall maintain a count of the number of
patrons within the business at any given time.
30) The business owner shall not permit any public nuisance within areas under his control,
including but not limited to, unruly behavior by patrons, or any interactions with passersby.
Areas under his control shall mean the parking lot to the north of the business and
sidewalk in front of the business.
31) Permittee shall consent to and provide access to all areas of the subject premises without
charge during normal business hours to any Police Department or other City Official for
purposes of verifying compliance with any of the Conditions of Approval of this CUP, as
well as with any Police Permit and approved Security Plan.
FIRE
32) The business owner/applicant shall provide emergency lighting, exit signs, and 2A-10BC
fire extinguishers to the satisfaction of the Fire Department.
33) The business owner/applicant shall clearly post the maximum occupancy, as determined
by the Building Official. The business owner/applicant shall not permit the actual
occupancy of the building to exceed the maximum allowed.
34) The business owner/applicant shall obtain all required permits and necessary inspections
prior to beginning operation of live entertainment at the subject tenant space.
PLN 17-00163 (Modify CUP) - 8323 Firestone Blvd.
November 2, 2017 — Page 6
TO: David Blumenthal, City Planner
FROM' Downey Police Department
By: Carl Charles, Chief of Police
Brian Baker, Lieutenant
Vince Rosario, Sergeant
James Eckart, City •, •
HookahSUBJECT: Request for Modification of Conditional Use Permit PLN -1 6.001114
• • it
The Police Department is hereby seeking that, pursuant to the provisions of Downey Municipal Code
Sections 9928 et seq., the City Planner commence proceedings to modify the conditions of
CUP PLN -16-00114, or, alternatively, to revoke CUP PLN -16-00114. Specifically, the Police
Department is recommending that Condition #6 be amended to require that all business operations
cease no later than 12:00 a.m. Mondays through Sundays. The Police Department is also
recommending that Conditions #1, 2, 5, and 6 be amended to prohibit all forms of live entertainment
(while allowing non -live entertainment terminating '/ hour prior to closing — and no later than
11:30 p.m.), and a modification of Condition #7 prohibiting the assessment of any admittance fee, cover
charge, or any other required charge or minimum payment as a condition of entry. [The Police
Department would also modify the applicant's "Entertainment Permit" accordingly.]
Procedural Sac und
On August 17, 2016, the City of Downey Planning Commission approved Conditional Use Permit
PLN -16-00114 •, - • •n 16-2990authorizing live entertainment (in the forms o
acoustical• amplified music, disc jockeys,- bands, musicians, and customer •.: •Hookah
Hub, located at 8323 Firestoner • it
Amongst the conditions imposed on - CUP by - Planning Commission — and accepted by
applicant (Emad Hanna, owner and operator of Hookah Hub), were the following:
Dancing area only be located adjacent t• the prep/employee
bands, and musicians shall be locatail
• • the easterly wall of r-ct tenant space, near the employer's office.
David Blumenthal, City Planner
Re: - Request for Modification of CUP PLN -16-00114
October 10, 2017
Page 2 of 6
3) The sale and/or consumption of food and alcoholic beverages within the subject
building are prohibited at all times.
6) The permitted hours of operation of the business, except live entertainment,
shall be Sunday through Thursday, from 6:00 p.m. to 2:00 a.m., and from 6:00 p.m. to 4:00 a.m. Friday
and Saturday.
7) There shall be no cover charge [at any time other than during pay-per-view
sporting events].
11) There shall be no outside promoters of live entertainment or nightclub activity at
any time.
17) The owner/applicant shall comply with and strictly adhere to the security plan, as
approved by the Chief of Police. This shall include the owner/applicant providing a minimum of two (2)
licensed and bonded, uniformed patrolmen for security.
20) The owner/applicant and licensee shall immediately report to the Police
Department if any patron appears to be involved in illegal activity inside the subject business or outside
In the parking lot area.
DMC §9928.06(c) provides, in pertinent part, that
Any permit or variance,- or any of the terms and conditions thereof, granted under the
terms of this chapter may be revoked or modified by a majority vote of the
Commission... members present at the public hearing upon finding any one of the
following to be true:
(1) That the use is being operated in a manner that is detrimental to the public
health, safety, welfare, and public convenience or is a public nuisance;
(4) That the use is being conducted in violation of the terms and conditions of the
permit or variance or in violation of any statute, ordinance, law, or regulation;
As detailed hereinbelow, the use is being operated in a manner that not only violates the terms and
conditions of CUP PLN -16-00114, but also in such a way as to be detrimental to the public health,
safety, welfare, and public convenience.
Discussion
Although the CUP authorizing live entertainment at the Hookah Hub was only issued in August 2016,
the Police Department has confirmed numerous violations of the conditions of the CUP.
In May 2017, the City of Downey received a formal complaint from the owners of real properly located
at 8329-8337 Firestone Boulevard, Downey [immediately adjacent to the Hookah Hub], regarding public
nuisance conditions caused and/or allowed by the operators of the Hookah Hub. Specifically, the
property owner complained of the use of neighboring parking areas by patrons of the Hookah Hub —
David Blumenthal, City Planner
Re: Request for Modification of CUP PLN -16-00114
October 10, 2017
Page 3 of 6
and of finding litter (including fast food discards, bottles, used condoms, and underwear), drug
paraphernalia, and vomit in these parking areas on weekends and Monday mornings. [The Downey
Police Department increased its patrols of this area, in part, in response to this complaint.]
On or about Sunday, June 25, 2017, between 2:40 a.m. and 3:00 a.m., a female patron of the Hookah
Hub got into a verbal altercation with a male patron of the Hookah Hub in the rear parking lot of the
establishment. The male victim indicated that he had been intoxicated when he entered the Hookah
Nub at approximately midnight, danced and talked to female patrons inside until approximately 2:40 or
3:00 a.m., when he left the establishment. Both the suspect and the victim walked out of the parking lot
towards the First Baptist Church parking lot. The female suspect used a kitchen -style knife and cut the
male victim — resulting in the need for medical attention. Although the cutting of the victim appears to
have occurred closer to the First Baptist Church parking lot, the incident appears to have commenced
in the Hookah Hub parking lot — and no action appears to have been taken by Hookah Hub security
nor did security report the incident to the Downey Police Department.
On or about Sunday, September 3, 2017, at approximately 1:07 a.m., a female patron of the Hookah
Hub arrived at the Police Department and reported that she was in the rear parking area of the Hookah
Hub and observed a fight occurring in the parking lot. She began recording the fight on her cell phone,
and another patronslappedthe phone out of her hand, punched her in the face multiple times, and
subsequently ripped a gold necklace from her neck. The victim further stated that the suspects
identified themselves as being members of a criminal street gang. The victim stated that she reported
the incident to the security guards at Hookah Hub and pointed out the suspects, who were in line to
enter the business. According to the victim, the suspects again began to punch her. Security took no
action — and allowed the suspects to enter the business establishment. Although the victim reported
the incident to the Police Department within thirty (30) minutes of its occurrence, neither the operator
nor any agent thereof ever reported this incident to the Downey Police Department. [Violation of
Condition 20]
On or about Saturday, September 16 2017, at approximately 1:12 a.m., Downey Police Department
responded to a "shots fired call' in the corridor between City Hall and the Downey City Library. While
investigating the matter, witnesses reported that a fight initiated inside of the Hookah Hub and was
carried outside to the rear parking area of the business. At some point, someone yelled that somebody
had a gun and patrons ran in multiple directions. A suspect chased a patron of the Hookah Hub from
the rear parking lot through the Embassy Suites parking lot, and into the corridor between City Hall and
the City Library. Once in that area, the suspect shot the victim. Interviews with witnesses from the
Hookah Hub confirmed that a fight had occurred inside the establishment before the shooting. The
security guard from the location also stated an "altercation" had taken place. Neither the operator nor
any agent thereof reported any aspect of this incident to the Downey Police Department. [Violation of
Condition 20]
On Saturday, September 16, 2017, at approximately 11:43 p.m., the Downey Police Department
conducted an inspection of the Hookah Hub to confirm compliance with the conditions of the CUP and
other applicable laws, and confirmed the following violations:
a) Two females were preparing to cook tacos in a room located to the rear of the
business to sell to the patrons of the Hookah Hub. [Violation of Condition3].
David Blumenthal, City Planner
Re: Request for Modification of CUP PLN -16-00114
October 10, 2017
Page 4 of 6
b) The females stated that an outside promoter had hired them. The manager of
the business confirmed that an outside promoter was present at the business
hosting an event. [Violation of Condition 11].
C) The DJ was performing near the north side of the building — in a location other
than that which was approved by the City [Violation of Condition #21
d) Customers were dancing off of the approved dance floor.- [Violation of
Condition 2]
e) A couch had been pushed up against the north doorway (along Firestone
Boulevard) so as to completely block entrance/exit through this doorway.
[Violation of Downey Fire Code §1031.2]
On September 20, 2017, representatives of the City's Police Department, Fire Department, and
Planning Division, as well as the City Prosecutor, met with Emad Hanna (the owner/operator of the
Hookah Hub) to discuss the recent incidents that occurred at or near the Hookah Hub — in addition to
the violations of the CUP that the Police Department had confirmed.
Mr. Hanna confirmed the following:
a) In addition to operating on all other days of the week, the business operates on
Fridays and Saturdays from 6 p.m. to 4 a.m. the following day, and that
approximately 70% of its business patrons (the equivalent of approximately 140
persons) arrive between 2 and 4 a.m. Most of these persons have just left a bar
or other alcohol establishment — and some are very intoxicated. Patrons
throughout the day remain between 60 to 90 minutes.
b) Live entertainment is provided on Tuesday, Fridays,- and Saturdays from
approximately 10 pm to 1:30 a.m. the following day, and pre-recorded music is
played after 1:30 a.m.
C) Security guards are only provided on Fridays and Saturdays. On those days,
one (1) security guard is provided from 6 to 9 pm, and four (4) or five (5) security
guards are provided form 9 pm to 4 am. No security guards are provided on
Sundays, Mondays, Wednesdays, or Thursdays. [Violation of Condition 17]
d) "Independent" outside promoters are allowed to host events at the Hookah Hub
on Tuesdays and Saturdays receiving a percentage of the sales as
compensation. These promoters are not under the direct control or supervision
of the owner/operator of the Hookah Hub. [Violation of Condition 11]
e) Pre -packaged -candy and chips are sold at the site for consumption by patrons.
Patrons are also allowed to take food into the Hookah Hub for consumption, as
well as to have food delivered to the Hookah Hub for consumption therein, On
previous occasions, the business was also selling nachos and fruit smoothies —
although the owner asserts that this is no longer occurring. Promotional material
David Blumenthal,City Planner
Re: Request for Modification of CUP PLN -16-00114
October 10, 2017
Page 5 of 6
for the Hookah Hub and customer reviews confirms that the Hookah Hub or the
outside promoters host "Taco Tuesdays". [Violation of Condition 3]
f) Patrons are required to pay a cover charge upon entering the business. The
owner asserts that the payment is not a cover charge — but rather the patron
pays for'/ of the cost of the hookah; with the remaining balance paid if and when
the patron rents the hookah. Although a hookah (ranging in cost between $10
and $30) could be shared amongst multiple patrons, every patron entering the
business is required to pay a fee upon entering the business. Promotional
material for the Hookah Hub confirms that patrons are required to pay a cover
charge and this includes on nights when no pay-per-view sporting -event is
being broadcast at the site. [Violation of Condition #7]
On September 20, 2017, Emad Hanna provided access to the business establishment so that
representatives from the Police Department, Fire Department, and Planning Division could conduct a
"compliance check". During that inspection (at which time the business was closed), it was determined
that 2 rooms located to the rear of the establishment were being used as part of the business. One
room appeared to be used for storage, while the other was set up for patron use. Mr. Hanna asserted
that the one room was used as a "waiting room" while patrons are awaiting a table. Neither of these
rooms is depicted on the site plan approved by the Planning Commission on August 17, 2016.
Additionally, Mr. Hanna confirmed that the DJ does not perform in the area set forth on the approved
site plan — but rather in a spot near the Firestone Boulevard side of the establishment. [Violation of
Condition 2]
The Fire Department also noted numerous conditions during the September 20th inspection that present
a potential risk to the health, safety, and welfare of the patrons of the Hookah Hub, neighboring
properties, and the general public. These violations are set forth in the Notice of Violation issued to the
business operator (dated September 26, 2017).
On or about Saturday, October 21, 2017, at approximately 2:37 a.m., the Downey Police Department
responded to a call reporting that approximately 20 gang members were fighting in the middle of
Firestone Boulevard, directly in front of the Hookah Hub. Shortly after arriving, officers located a semi-
automatic handgun in the pants pocket of a patron of the Hookah Hub. While speaking with other
subjects, one witness stated that he and several other persons had arrived at the Hookah Hub after
being picked up in a "party bus" in Hawthorne. The reporting party was a passerby who contacted 911.
There is no indication that any representative of the Hookah Hub reported this incident to the Downey
Police Department. [Violation of Condition #201
Conclusion
The Planning Commission imposed various conditions upon CUP PLN -16-00114 in an effort to protect
the health, safety, and welfare of the public. In the apparent regular course of business, the operator of
the Hookah Hub has (i) failed to immediately report illegal activity occurring at the site; (ii) failed to
provide adequate security personnel and services; (iii) prepared food at the site and allow consumption
of food at the site; (iv) charged cover charges when no pay-per-view sporting event was being
presented at the site; and (v) allowed outside promoters to host events at the establishment.
Additionally, the business operator has allowed dangerous conditions to exist at the site in violation of
the Downey Fire Code.
7,C Agenda Page 25
David Blumenthal, City Planner
Re: Request for Modification of CUP PLN -16-00114
October 10, 2017
Page 6 of 6
The statements of the business operator and the Police responses relating to incidents that occurred
(or at least, commenced) at the Hookah Hub demonstrate that neither the business operator nor the
security at the business establishment are able to operate the business during late night hours (post -
midnight) in a manner that protects the health, safety, and welfare of the patrons and the general
public. Due, in part, to the security guards' failure to take ANY action including contacting the Police
Department, patrons of the Hookah Hub have been robbed, stabbed (cut), punched, and shot by other
patrons of the business establishment in the hours after midnight. These incidents are more likely to
occur given that, according to the information obtained by the Police Department, many (if not most) of
the patrons of the Hookah Hub during the late-night hours have just left an alcohol establishment and
are often intoxicated upon entering the Hookah Hub. The Hookah Hub patrons utilize parking areas of
neighboring businesses and contribute to public nuisance conditions that the neighboring businesses
encounter the following morning including, but not limited to, leaving fast food discards, condoms,
narcotics paraphernalia, and other items of junk, trash, and debris in the parking areas.
Notwithstanding Condition #11, statements by patrons of the Hookah Hub and by the operator
demonstrate that the location is being used for night-club activity: use of outside promoters (in violation
of Condition 11); utilizing a cover charge (in violation of Condition 7); "Taco Tuesdays" (in violation of
Condition#3); and descriptions by patrons that they leave alcohol establishments and go to the Hookah
Hub to dance.
For all of these reasons, the Police Department recommends that the Planning Division commence
proceedings to modify Conditional Use Permit PLN -16-00114 to require that all business operations
cease no later than 12:00 a.m. each night of the week, to prohibit all forms of live entertainment
(including DJs and customer dancing), to allow non -live entertainment that terminates '/ hour prior to
closing — and no later than 11:30 pm), and to prohibit the assessment of any cover charge or other
required charge or minimum payment as a condition of entry. — or to otherwise to seek the revocation of
CUP PLN -16-00114.
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TICE of VIOLATION
September 26, 2017
Downey Mile Inc.
DBA Hookah Hub
C/o: Emad Abdou Hanna
8330 Dacosta Street
Downey, CA 90240
Dear Mr. Hanna:
In response to recent criminal complaints and activity at the hookah establishments in the downtown area, Downey Fire
was requested to attend an office hearing with the City Prosecutor, Planning and Police Departments to further discuss
the matter and ensure these establishments are adhering to the conditions set forth in their Conditional Use Permits. At
the conclusion of this office hearing, you granted consent for this agency to conduct an occupancy inspection of the
business to verify fire code compliance. Accompanied by members of Downey Police and Planning Departments, the
Downey Fire Department's Fire Prevention Bureau (FPB) conducted a fire -life safety inspection of the above -referenced
Assembly Group A-2 occupancy on September 20, 2017. The following fire code violations were observed and require
the prescribed corrective action as contained herein.
EWE Ls
1. Egress Doors —egress doors shall swing indirection of egress travel where serving an occupant load of 50 or
more persons; doors shall be of an approved, permitted type [California Fire Code § 1010.1.2.11
• Immediately remove non -permitted security door from Firestone exit
2. Egress (exiting) Signs —where two or more exits are required from a room/ or area, exit doors shall be marked
by approved exit signs readily visible from any direction of egress travel [California Fire Code § 1013.11
Provide approved exit signs at both north and south exits (If not already in place); (lounge exit signs to be
approved with with directional arrows as required)
3. Egress obstructions— required exit access, exits and exit discharges shall be continuously maintained and free of
obstructions [California Fire Code § 1031.2]
• immediately cease blocking access to exits with furniture or any other items, objects, etc,
immediatelyremove table, hairs from north alley exit access (egress corridor)
Downey Mile Inc.
26 Sept. 2017
Re: Fire -Life Safety Occupancy Compliant Inspection — Hookah Hub, 8323 Firestone Blvd.
Page Two (2)
1, Maintenance —fire -resistance rating of construction (e.g wall, ceiling, etc.) shall be maintained at all times
[California Fire Code § 703.1]
• Repair damage ceiling penetrations at fire riser room; provide an approved UL Intumescent caulking to
any ceiling piping penetrations
1. _ Portable Fire Extinguishers provide a minimum of 2-A rated fire extinguisher for every 1,500 square feet of
ordinary hazard fuel load, and be located at every 75 feet of travel distance to occupancy. Portable fire
extinguishers shall be mounted at proper heights of not more than 5 feet above floor. Fire Extinguishers shall
not be obstructed or obscured from view and locations, and be readily identified with approved signs. [California
Fire Code § 906.5; 906.6; Table 906.3(1); CCR Title 19, Division 1, §567.6]
Provide required number of properly rated, sized fire extinguishers, extinguishers are to be mounted on
wall at required height
2. Portable Fire Extinguishers Maintenance— extinguishers shall be subject to annual service/maintenance as
described in CA Code of Regulations Title 19 [CCR Title 19, Division 1 §575.11
• Provide annual State Fire Marshal -required service to portable fire extinguishers throughout occupancy
3. Fire Protection Equipment Maintenance - Fire detection, alarm and extinguishing systems shall be maintained in
an operative condition at all times, and shall be replaced or repaired where defective [California Fire Code §
901.6; California Code of Regulations, Title 19, Division 1, §1.14]
• A C-10 fire alarm contractor shall investigate and resolve trouble alarms on Fire Detection and Alarm
System.
• Submit a NFPA 72 Annual Fire Alarm Inspection and Test Report to this agency indicating fire alarm
system in proper operation and maintenance
Genera( Fire gbt
1. Occupancy load —provide an approved occupancy load sign to business occupant load sign to be gos,�lctiously
posted at or near main entrance [CA Fire Code 1004.3]
2. Combustible Waste Material / Hot ashes - materials subject to spontaneous ignition shall be stored in a listed
disposal container and contents emptied daily. Hot ashes, smoldering coals shall not be deposited in a
combustible receptacle within 10 feet of other combustible material including walls, partitions, or within feet
of openings to buildings (Note: minimum required separation distance to other materials shall be 2 feet where
the material is deposited in an approved, listed covered, non-combustible receptacle placed on a
noncombustible floor, ground surface or stand). [California Fire Code §304.3.1; §305,2]
• Provide approved, listed containers for storage and management of hot ashes, charcoal briquettes
• Containers shall be labeled "HOT COAL ONLY"
Downey Mile Inc.
26 Sept. 2017
Re: Fire -Life Safety Occupancy Compliant Inspection — Hookah Hub, 8323 Firestone Blvd.
Page Three (3)
EVE
3. Housekeeping — every building shall be maintained in a neat and orderly manner, free from any condition that
would create fire or life safety hazard, or condition which would add or contribute to rapid spread of fire.
Provisions shall be made for the proper storage and disposal of waste materials and rubbish [CCR Title 19,
Division 1, §3.19(a) — (g)]
Immediately provide orderly storage to storage rooms throughout; remove all unused' equipment,
debris, materials, combustible items
4. Combustible materials at egress — combustible materials shall not be stored in exits or enclosures for stairways
or ramps [California Fire Code §315.3.2]
Cease storage of LP -gas, charcoal at north alley egress
5. Open flame devices In Group A Occupancies - Open flame devices (e.g. LP -gas burner) shall be prohibited in
every Group A occupancy unless approved devices; any open flame and burning in Group A or E occupancies
shall require permit and precautions taken to prevent ignition of combustible materials or injury to occupants
[California Fire Code§308.2; §308.3; California Code of Regulations, Title 19, Division 1, §3.25(a) and (b)]
a tease use of LP -gas for lighting and burning charcoal unless permitted (e.g. open flame permit) and
approved by this agency
• Any use of open flame devices shall require a separate permit from this agency and be conducted in
an approved manner
6. LP -gas cylinders secured — LP -gas cylinders shall be secured against accidental dislodgement[California Fire Code
§5303.5)
Ventilation
1. Ventilation- an approved mechanical exhaust hood complying with CA Mechanical Code shall be provided and
operable for when coals are being prepared/heated. Please contact Downey Building &Safety for requirements
and necessary permitting.
Electrical Hazards
1. Extension Cords—extension cords shall not be used as a`substitute for permanent wiring; extension cords shall
be used only with portable appliances [California Fire Code §605.51
Cease using extension cords for permanent wiring throughout occupancy
Downey Mile Inc.
26 Sept. 2017
Re: Fire -Life Safety Occupancy Compliant Inspection — Hookah Hub, 8323 Firestone Blvd.
Page Four (4)
1. Combustible decorative materials -Wall mounted decorative materials, interior finish shall comply with CA
Building Code, ASTM, or NFPA 286 and meet approved flame spread index requirements for Group A — Assembly
Occupancy [California Fire Code §803; §807.3]
• Decorative materials shall be approved and meet code requirements for flame spread and smoke
development or shall be removed. Provide supporting documentation indicating decorative
materials meet requirements for wall finishes
2. Combustible decorative materials= in every Group A occupancy, all decorative materials, hangings, drapes,
curtains shall be made from a non-flammable material, or treated and maintained in a flame-retardant condition
by means or process approved by State Fire Marshal. Submit required fire performance reports (test results)
indicating furnishing used are flame resistant in accordance with CCR, Title 19 Division 1 [California Fire Code
§807.3;807.4; CCR Title 19, Division 1 §3.08; 1273.1]
Provide required performance test reports indicating furnishings (e.g. sofas, chairs, etc.) are flame
resistant in accordance with State requirements. If furnishings fail to meet requirements for flame
resistance, they shall be immediately removed from occupancy and replaced with approved, flame
resistant furnishings.
R ,
If further information or assistance is needed in regards to this notice, please feel free to call Downey Fire Prevention at
(562) 904-7345.
Sincerely, -
Lee Kirby
Hazardous Materials Specialist -Fire Inspector
C/c Rik Hobble, Building Official City of Downey
Vince Rosario, Sergeant Downey Police Department
Guillermo Arreola, Senior Planner City of Downey
Jay Ibey, Asst. Fire Chief/Fire Marshal City of Downey
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TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
KAMALA D. HARRIS
Attorney General
OPINION No. 09-507
of M December 21, 2011
KAMALA D. HARRIS
Attorney General
TAYLOR S. CAREY'
Deputy Attorney General :<
THE HONORABLE MICHELE BEAL BAGNERIS, CITY PROSECUTING
ATTORNEY FOR THE CITY OF _ PASADENA, has requested an opinion on the
following question:
Is a private smokers' lounge located in or attached to a retail or wholesale tobacco
shop, which serves alcoholic :beverages to patrons, exempt from the requirements of
Labor Code section 64034.5 to maintain a smoke-free workplace?
CONCLUSION
No, a private smokers' lounge located in or attached to a retail or wholesale
tobacco shop, which serves alcoholic beverages to patrons, is not exempt from the
requirements of Labor Code section 6404.5 to maintain a smoke-free workplace.
1 09-507
Labor Code section 6404.5' regulates the smoking of tobacco in enclosed areas of
the workplace. The section's broad purposes are described in subdivision (a):
The Legislature finds and declares that regulation of smoking in the
workplace is a matter of statewide interest and concern. It is the intent of
the Legislature in enacting this section to prohibit the smoking of tobacco
products in all (100 percent of) enclosed places of employment in this state
... thereby eliminating the need of local governments to enact workplace
smoking restrictions within their respective jurisdictions. It is further the
intent of the Legislature to create a uniform statewide standard to restrict
and prohibit the smoking of tobacco products in enclosed places of
employment ... in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to eliminate
the confusion and hardship that can result from enactment or enforcement
of disparate local workplace smoking restrictions.
The Legislature's intention to preempt the regulation of smoking in workplaces
statewide is emphasized in subdivision (g):
The smoking prohibition set forth in this section shall constitute a
uniform statewide standard for regulating the smoking of tobacco products
in enclosed places of employment and shall supersede and render
unnecessary the local enactment or enforcement of local ordinances
regulating the smoking of tobacco products in enclosed places of
employment.
1994 Stat. ch. 310 § 1 (Assembly 13).
by section number only.
All further references to the Labor Code are
2 While section 6404.5 refers only to the smoking of tobacco products, marijuana
smoking is regulated as well by virtue of other statutes. See Health & Saf. Code §§
11362.785(a) ("Nothing in this article shall require any accommodation of any medical
use of marijuana on the property or premises of any place of employment "}; 11362.79
C'Nothing in this article shall. authorize a qualified patient or person with an identification
card to engage _ in the smoking of medical marijuana under any of the following
circumstances: (a) In any place where smoking is prohibited by law ...").
3 Despite section 6404.5's - preemption of local regulation of workplace smoking,
2 09-507
Without retreating from its stated goal of eliminating smoking in 100 percent of
enclosed places of employment, the Legislature carved out a few exceptions from the
definition of "places of employment," notably in circumstances where, smoking presents
little risk to non-smoking employees or other persons. Of particular interest here is
section 6404.5(d)(4), which excludes from the definition of "workplace" any "retail or
wholesale tobacco shops and private smokers' lounges."4
We are asked whether a private smokers' lounge connected to a tobacco shop may
retain its exemption from the workplace smoking prohibitions if the shop also serves
alcoholic beverages to its patrons. We are informed that in some communities private
smokers' lounges serve alcoholic beverages to their customers and, further, that the
California Department of Alcoholic Beverages Control, which has the exclusive power to
license the manufacture, importation, and sale of alcoholic beverages in the state '5 has
issued alcohol licenses to some of these entities. This practice has caused concern among
local enforcement authorities and raised questions about how workplace no -smoking
rules apply.
local authorities play a significant role in implementing _ and enforcing the statute.
Subdivision (a) specifically authorizes local officials to regulate smoking under
circumstances not covered by state law:
Notwithstanding any other provision of this section, it is the intent of
the Legislature that any area not defined as a "place of employment
pursuant to subdivision (d) or in which the smoking of tobacco products is
not regulated pursuant to subdivision (e) shall be subject to local regulation
of smoking of tobacco products.
See also § 6404.5 at-subds. (i), 0).
4 Other exceptions include motor truck cabs, when no non-smoking passengers are
present (§ 6404.5(d)(5)); warehouse facilities larger than 100,000 square feet and housing
20 or fewer full-time employees (§ 6404.5(d)(6)); theatrical sites, if smoking is integral
to the story (§ 6404.5(d)(9)); medical research or treatment sites, if smoking is integral to
the research or treatment (§ 6404.5(d)(10)); private residences, except during hours of
operation as licensed family day care (§ 6404.5(d)(11)); and patient smoking areas in
long-term healthcare facilities (§ 6404.5(d)(12)). See also City of San Jose v. _Dept. of
Health Services, 66 Cal. App. 4th 35, 44 (1998).
5 See Cal. Const. art. XX, § 22(d).
3 09-507
When we are called upon to interpret the meaning; of a statute, our primary task is
to de(e ine what the Legislature intended:In doing s, we "look first to the words of
the statute themselves, giving to the language its usual, ordinary import and according
significance, if possible, to every word, phrase and' sentence in pursuance of the
legislative purpose .,,7 "If there is no ambiguity in the language of the statute, then the
Legislature is presumed to have meant what it said, and the plain meaning of the
language governs.598
As has been noted, section 6404.5(d)(4) sets out an exemption from, workplace
smoking restrictions for "retail or wholesale tobacco shops and private smokers''
lounges.s9 For purposes of the ex:emption,'a smokers' lounge is an "enclosed area in of
attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco
products, including, but not limited to, cigars and pipes."10 "Dedicated" means "wholly
committed to a particular course of ... action."11 Therefore an area "dedicated to the use
of tobacco products" is set aside for the use of tobacco products, and for tobacco products
only. "'Where a statute enumerates things upon which it is to operate it is to be construed
as excluding from its effwt all those not expressly mentioned."` Furthermore, while the
statute recites that aprivate smokers' lounge is an area dedicated to the use of tobacco
products, "including, but not limited to, cigars and pipes," the class of permitted items
unquestionably remains- confined to tobacco products. Despite longstanding cultural
associations between tobacco and alcoholic beverages, tobacco and alcohol - are two
distinct products. The phrase "tobacco products" cannot reasonably be interpreted as
including alcoholic beverages. "An exception to a statute is to be narrowly construed.
When a statute specifies an exception, no others may be added under the guise of
6 Freedom Newsps., Inc. v. Orange Co. Employees Ret. Sys., 6 Cal.- 4th 8219 826
(1993).
7 Dyna -Med, Inc. v. Fair Empl. & Housing Commn., 43 Cal. 3d 1379, 1386-1387
(1987).
8 People v. Coronado, 12 Cal. 4th 145, 151 (1995) (internal quotations and citations
omitted).
9 A retail or wholesale tobacco shop is "any business establishment the main purpose
of which is the sale of tobacco products, including, but not limited to, cigars, pipe
tobacco, and smoking accessories." § 6404.5(d)(4)(B).
10 § 6404.5(d)(4)(A) (emphasis added).
The American Heritage Dictionary of the English' Language (4th ed., 2000).
'z Shelby v. S. P. Co., 68 Cal. App. 2d 594, 599 (1945).
4 09-507
[statutory] construction." 13 Therefore we conclude that an area in which alcoholic
beverages are served is not included in the section 6404.5(d)(4)(A) exemption from
smoke-free workplace rules because it is not "dedicated to the use of tobacco products."
In addition to a smokers' lounge connected to a tobacco shop, however, section
6404.5(d)(4) also creates an exemption from workplace smoking restrictions for the
tobacco shop itself. For purposes of the exemption, a tobacco shop is "any business
establishment the main purpose of which is the sale of tobacco products, including, but
not limited to, cigars, pipe tobacco, and smoking accessories.,04 While this language is
marginally less restrictive than the definition of a smokers' lounge, the differences are not -
significant enough to produce a different conclusion.
In the first place, the expansion of the terminology to include "smoking
accessories" in addition to pipes tobacco and cigars is immaterial in this context. The
terms are still restricted to tobacco and tobacco -related products, and cannot reasonably
be interpreted as including alcoholic beverages. And while "the main purpose" is a
somewhat more elastic phrase than "dedicated to," the difference is not enough to cause
us to reach a different answer to the question we have beenaskedhere. We recognize
that a phrase as flexible as "the main purpose" could give rise to problems of application
in close cases or on unusual facts, but we have no need to decide here whether it should
take just a few drinks or more than fifty percent of revenues to meet the mark. 15 For
purposes _ of construing the statute, we are guided by the general rule that protective
statutes, such as the statewide ban on smoking in workplaces, are to be construed
broadly. "When, as in this case, a civil statute is enacted for the protection of the public,
it must be 'broadly construed in favor of that protective purpose.'" 6 In addition, this
conclusion avoids what would otherwise be a_jarringly counterintuitive result—that is,
permitting both drinking and smoking to take place in the open and public areas of a
tobacco shop, while forbidding drinking to take place in the enclosed area of the tobacco
shop that has been set aside for smoking purposes. Our careful review of the statute, its
13 Harris v. Alcoh. Bev. Control Apps. Bd., 201 Cal. App. 2d 567, 571 (1962)
(citations omitted).
14 § 6404.5(d)(4)(13) (emphasis added).
15 -See generally 68 Ops.Cal.Atty.Gen. 263 (1985) (commercial enterprise that offers
complimentary alcoholic beverages with paid services is "selling" alcoholic beverages
and requires alcoholic beverage license).
16 People ex rel. Lockyer v. R. J.,Reynolds Tobacco Co., 37 Cal. 4th 707, 717 (2002)
(quoting People ex rel. Lungren v. Superior Ct., 14 Cal. 4th 294, 313 (1996)).
5 09-507
context, and its history convinces us that the Legislature did not intend such an
anomalous result."
Accordingly, we conclude that a private smokers' lounge located in or attached to
a retail or wholesale tobacco shop, which serves alcoholic beverages to patrons, isnot
exempt from the requirements of Labor Code section 6404.5 to maintain a smoke-free
workplace.
7 We note that a tobacco shop that serves alcohol would have nothing to gain under
the smoke-free workplace rules by characterizing itself as a "bar" or "tavern." When the
statute prohibiting smoking in the workplace was first enacted, bars and taverns were
exempted from the definition of a place of employment. See § 6404.5(d)(8) (defining
"bar" and "tavern"). That exemption was expressly made conditional and contingent
upon the adoption of certain regulations by the state Occupational Safety and Health
Standards Board or the federal Environmental Protection Agency that establish standards
for the reduction of permissible exposure to environmental tobacco smoke. § 6404.5(f).
These contingencies were required to occur or fail by January 1,-1998. That date passed
with neither agency taking the identified regulatory action, and the exemption for bars
and taverns expired. See § 6404.5(f)(B)(3); see also 82 Ops.Cal.Atty.Gen. 190, 192
(1999). Bars and taverns are now smoke-free workplaces.
6 09-507
RESOLUTION NO °'
• • • • • OF ••
WNEY
• • rvx-
FIRESTONESPECIFIC PLAN — BOULEVARD GATEWAY DISTRICT)
• • • r• r• • •, •
SECTION- Planning Commissionthe city of Downey does herebyfind,
determine and declare that:
A. An "16000 *00 Aled by Mr. E�60 i4anna oerelinafter'Applibant!) requesting
st
• tt a.• tc . a :.
• r • • ` it * r
le
exempt
PC Agenda Page 4
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e
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the accomplishment of these purposes.
PLN -16-00114=8325 Firestone Blvd
August 17, 2016 5 - Pape 2
Resolution No. 18-299Q
■ • + • s
i i f • _ - • i -
i 1
• i • :
+
PLN -16-00114 = 8323 Fimlone Blvd
Augu■t 17, 2016 5 - page 3
Resolution No.- 'g.,
Downey Planning Commission
CONDITIONS OF APPROVAL
PLN -16-00114 (CONDITIONAL USE PERMIT)
PLANNING -
1) The approval of PLN -16-00114 (CUP) allows live entertainment in the form of disc
jockeys, live bands, musicians (acoustical and amplified music), and customer dancing at
the Hookah Hub business, on property located at 8323 Firestone Blvd. The Planning
Commission shall review PLN -16-00114 six (6) months after issuance of the Downey
Police Department permit for live entertainment.
2) Dancing area shall only be located adjacent to the prep/employee area as designated on
the approved floor plan. Also, disc jockeys, Jive bands, and musicians shall be located
along the easterly wall of the subject tenant space, near the employer's office.
3) The sale and/or consumption of food and alcoholic beverages within the subject building
are prohibited at all times.
4) The business owner/applicant shall keep the entrance and exit doors to the business
closed during the hours when live entertainment is permitted.
5) Live entertainment shall not be permitted before 6:00 p.m., seven (7) days a week and
shall cease by 1:30 a.m.
6) The permitted hours of operation of the business, except for live entertainment, shall be
Sunday through Thursday, from 6:00 p.m. to 2:00 a.m., and from 6:00 p.m. to 4:00 a.m.
Friday and Saturday.
7) The business owner/applicant is permitted to charge patrons an admission fee to enter
the business during pay-per-view sporting events. There shall be no cover charge at any
other time.
8) Customers shall not be within the business after the specified closing time.
8) The business owner/applicant and licensee shall not conduct valet parking on the subject
site without the approval of a conditional use permit from the Planning Commission.
10) All signs shall comply with Chapter 6 of Article IX (Land Use) of the Downey Municipal
Code.
11) All promotions of the business shall be conducted under direct control of the business
owner. There shall be no outside promoters of live entertainment or night club activity at
any time.
12) The City Planner Is authorized to make minor modifications to the approved plans or any
of the conditions if such modifications shall achieve substantially the same results as
would strict compliance with said plans and conditions.
13) Noise generated from the business shall comply with Municipal Code Section 4600 at. seq.
In any case, noise shall not exceed 65 dBA, measured at the property line. If noise -related
PLN -16.00114 - 8323 Firestone Blvd
August 17, 2018 5 - Page 4
PC Agenda Page 51
In the defense of
relieve Applicant c
15) Approval of this P
obligations of this condition.
POLICE
16) Por to operating live entertainment the owner/applicant shall obtain any and all required
Police «
t� this Conditional Use Permit.
17) the owner/appowner/applicent shall complyand stddy 960te to the security plan, as
18)
i-etermined by the Chief of Police and By a increased or decrea
:determines
zero -
No
19) The business ownertapplicant shall take all necessary steps to ensure that no person
under the age of 21 years of age will be permitted on the premises,
20) The ownerlapplicant and licensee shall Immediately report to the Police Department if
any patron appears to be Involved in illeg at activity inside the subject business or outside
in the parking lot area.
MI
PLN -18-00114 = 8323 Rrestone Blvd
August 17, 2010 5 - Page 5
ON
Resolution No. `.;1
22) The owner/applicant shall not permit any loitering on the subject site,
23) The owner/applicant and licensee shall remain in full compliance of all Local, State and
Federal Laws.
24) The owner/applicant shall Impose a dress code that shall not permit patrons to wear the
following: Gang attire/colors, baggy pants, bandanas, back packs, and/or caps worn
backwards.
Wq
25) The owner/applicant shall provide emergency lighting, exit signs, and 2A-10BC fire
extinguishers to the satisfaction of the Fire Department.
26) The owner/applicant shall clearly post the maximum occupancy, as determined by the
Building Official. The owner/applicant shall not permit the actual occupancy of the
building to exceed the maximum allowed.
27) The owner/applicant shall obtain all required permits and necessary inspections prior to
beginning operation of live entertainment at the subject tenant space.
PLN46-00114 = 8323 Firestone Blvd
August 17, 2016 5 - Page 6
PC MINUTES
REGULAR MEETING
DOWNEY CITY PLANNING COMMISSION
WEDNESDAY, r
COUNCILCITY • •
DOWNEY CALIFORNIA
Milo
Chairman Flores called the August 17, 2018, Regular Meeting of the Planning Commission to order at 6:38
p.m,, at Downey City Hall, 11111 Brookshire Avenue, Downey, CA. After the flag salute, Secretary
Cavanagh called roll.
COMMISSIONERS PRESENT: Patrick Owens, District
Louis Morales, District 3
Matias Flores, District 4, Chairman
Jim Rodriguez, District 5, Vice Chairman
COMMISSIONERS ABSENT: Hector Lujan, District 1
OTHERS PRESENT: Aldo E. Schindler, Director of Community Development
Yvette Abich Garcia, City Attorney
William E. Davis, City Planner
Vincent Rosario, Sergeant Downey Police Department
Guillermo Arreola, Senior Planner
Monica Esparza, Associate Planner
Kevin Nguyen, Assistant Planner
Mary Cavanagh, Secretary
COPLANNING COMMISSIONER ANNOUNCEMENTS111 REQUEST FOR FUTURE AGENDA ITEMS; AN
• a
CHANGES TO THE AGENDA: None.
jillill Jill
IN:U91321111 • • •
PUBLIC HEARINGS:
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Disclosers: Commissioner Morales visited the site on Monday and spoke to the manager.
Planning Commission Minutes
August 17, 2016
Lee Rabun, Land Use Consultant, 420 S. San Pedro St., Ste. 225, L.A., CA, 90013, representing
Applicant, Downey Mile, Inc. Owner, Emad Hanna. Mr. Rabun stated that they read and agreed to all but
one of the conditions of approval. They are disputing the revision of hours of operation, stating that the
bulk of their business is after hours and closing at 2:00 a.m. will be detrimental to the business.
The Commissioners discussed the following with staff: Revising the hours of operation for business and
live entertainment; police reports for calls for service; the use of the smoking lounge and confirmed no
other forms of tobacco consumption, food, or alcoholic beverages are not to be permitted.
City Attorney Yvette Garcia explained the Attorney General's interpretation of labor codes as they pertain
to smokers and hookah lounges regarding consumables/food.
Business owner, Emad Hanna reiterated the importance of maintaining the current hours of operation to
4:00 a.m. and asked the Commissioners to consider that there is one other hookah establishment in the
downtown that is also open until 4:00 a.m.
Correspondence: None.
Public Comments: An unidentified speaker spoke in favor of the application.
City Planner Davis gave staff's recommendation is to adopt Resolution 16-2990 to approve the request for
a conditional use permit, subject to the conditions of approval.
Chairman Flores closed the public hearing.
The Commissioners discussed their concerns regarding the hours of operation with live entertainment and
propensity to cause disturbances and increasing police calls for service.
Chairman Flores reopened the public hearing.
The Commissioners asked if the hookah lounge would allow cigarette smoking, to which Mr. Rabun replied
that the establishment does not allow cigarettes, only hookah.
Chairman Flores closed the public hearing.
The Commissioners discussed the conditions of approval with staff and agreed to the following
modifications to address the concerns presented:
1) The approval of PLN -16-00114 (CUP) allows live entertainment in the form of disc jockeys, live
bands, musicians (acoustical and amplified music), and customer dancing at the Hookah Hub
business, on property located at 8323 Firestone Blvd. The Planning Commission shall
review PLN -96-00114 six (6) months after issuance of the Downey Police Department
permit for live entertainment
6) The permitted hours of operation of the business, except for live entertainment, shall be Sunday
through Thursday, from 6:00 p.m. to 2:00 a.m., and from 6:00 p.m. to 4:00 a.m. Friday and
Saturday.
18) Signs shall be posted at all entrances to the premises and business identifying a zero -tolerance
policy for nuisance behavior at the premises (including the parking lot). No patrons or
employees shall be allowed to congregate at the rear of the business.
Planning Commission Minutes
August 17, 2016
It was moved by Chairman Flores, seconded by Commissioner Morales, and passed by a 3-1 vote, with
Vice Chairman Rodriguez voting No, to adopt Resolution 16-2990, thereby approving the request for a
Conditional Use Permit (PLN -16-000114) with modified conditions as stated.
NON AGENDA PUBLIC COMMENTS:
Armando Herman spoke against taxes and the City of Downey's grievance procedure regarding ADA
compliance.
CONSENT CALENDAR ITEMS:
2. Aouraval of the MInjAes four Ad uat 3 2+016
It was moved by Chairman Flores, seconded by Commissioner Morales, and passed by a 4-0 vote, thereby
approving the Consent Calendar.
OTHER BUSINESS: Commissioner Owens asked for an update on replacing the warn dust abatement
screening on the east side of the Promenade, to which Director of Community Development Aldo Schindler
advised that staff will follow up with the request that was made.
STAEE ER CO E S: Director Schindler advised the Commissioners that there will be a
meeting for the Downtown Parking Study on September 15°h, 2016. City Attorney Garcia reviewed the
current process filing an ADA grievance procedure.
ADJOURNMENT: With no further business to discuss, Chairman Flores adjourned the meeting at 6,39
p.m., to Wednesday, September 7`h, 2016, at 6,30 p.m. at Downey City Hall, 11111 Brookshire Ave.
APPROVED AND ADOPTED this 71h day of December, 2016.
Matlas Flores, Chairman
City Planning Commission
I HEREBY CERTIFY that the foregoing Minutes were duly approved at a Regular meeting of the Planning
Commission held on the 7'" day of December, 2016, by the following vote:
AYES: COMMISSIONERS: Flores, Rodriguez, Morales, Lujan and Owens
• iNERS: None
ABSTAIN: CO
• -
►
NOES: COMMISSIONERS: None
A—
Mary Cavftnagh, Secreta
City Planning Commission
A. List of r Police Departme
B. ResoiWon No. 16-2990
PLN -1 "0114 — 8323 Firestone Blvd
February 15, 2017 - Page 2
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RESOLUTION NO.
RESOLUTION OF • i OF OF DOWNEY
APPROVING! L114 (CONDITIONAL
ALLOWING• AND AMPLIFIED MUSIC IN THE FORMOF DISC
JOCKEYS,f AND CUSTOMER DANCING,
EXISTING HOOKAH LOUNGE (HOOKAH HUB) BUSINESS, ON PROPERTY
LOCATED AT - •BLVD, ZONED f (DOWNTOWN DOWNEY
FIRESTONESPECIFIC PLAN — BOULEVARD GATEWAY DISTRICT)
THE PLANNINGCOMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS:
SECTION 1: The Planning Commission of the City of Downey does hereby find,
determine and declare that:
A. An application was filed by Mr. Emad Hanna (hereinafter "Applicant') requesting
approval of a conditional use permit to operate live entertainment at an existing
hookah lounge business, on property located at 8323 Firestone Blvd, and zoned
DDSP (Downtown Downey Specific Plan); and,
B. On August 4, 2016, notice of the pending public hearing was sent to all Downey
property owners within 500 feet of the subject site and the notice was published in
the Downey Patriot; and,
C. The Planning Commission held a duly noticed public hearing on August 17, 2016
and after fully considering all oral and written testimony, facts, and opinions
offered at the aforesaid public hearing adopted this resolution.
SECTION 2. The Planning Commission further finds, determines and declares the
project is not subject to California Environmental Quality Act (CEQA) and is categorically exempt
from CEQA, pursuant to Guideline Section No. 15301 (Class 1), Existing Facilities.
SECTION 3. Having considered all of the oral and written evidence presented to it at
said public hearings, the Planning Commission further finds, determines and declares that:
A. That the requested conditional use permit will not adversely affactthe Intent and
purpose of this article or the Cftys General Plan or the public convenience or
general welfare of persons residing or working in the neighborhood thereof.
The requested conditional use permit for live entertainment falls under the
category of "Bar/Night Club/Live Entertainment", end will not adversely affect the
purpose and intent of the Downey Municipal Code. The subject property is
adjacent to other properties with the same zoning designation. The requested
conditional use permit will allow live entertainment in the form of disc jockeys, live
bands and musicians, and customer dancing at Hookah Hub Lounge but will not
adversely affect the purpose and intent of this chapter or the City's General Plan
or the public convenience or general welfare of persons residing or working in the
neighborhood because the site is developed as a commercial use and the project
site, along with other uses in the Firestone Boulevard Gateway District maintains
the Mixed Use General Plan designation, which is Intended to help facilitate
entertainment uses. Related to this is General Plan Program No. 1.2.2.1 which
states, "Promote the downtown area as a destination point for entertainment,
dining, civic, and other activities.' Allowing a hookah lounge with live
entertainment in the Downtown Core area will encourage people to come into the
downtown and remain there.
B. That the requested use will not adversely affect the adjoining land uses and the
growth and development of the area in which It is proposed to be located. The
D. That the traffic generated by the proposed use will not Impose an undue burden
upon the streets and highways in the area. The subject site is'located within the
Downtown Firestone Boulevard Gateway District, with vehicular access being
provided from Firestone Boulevard and La Reina Avenue. Staff has reviewed the
proposal for any potential Increase In traffic caused by the operation of the
business and believed that live entertainment activities during the evening hours
will not imposetan undue burden upon the streets in the area. The surrounding
streets have sufficient capacity to accommodate the minimal Increase In traffic
that might be generated by live entertainment.
SECT!ON 4. B Upon the din, Ingb-set forth In Sections 1;through 8 of this
Resolution, the Planning CoMrWssl6n of the CIty of I50V)neiy heleby appro PLN -16-00114,
subject to the Conditions of Approval attached hereto, which are necessary to preserve the
health, safety and general welfare of the community and enable the Planning Commission to
make the findings set forth In the previous sections. The conditions are fair and reasonable for
the accomplishment of these purposes.
PLN -10-00114— 8323 Redone Blvd
August 17, 2010 6 -Page 2 PPA4gn9Ma-'PaJWg
SECTION 6. The Secretary shall certify the adoption of
&F as Flores, Chairman
4 Planning Commission
I HEREBY CERTIFY that the foregoing Is a true copy of a Resolution adopted by the Planning
Commission ofthe City of Downey at a regular meeting thereof b6W on�*e ljo •'. of:00*4
2016, • the following • to wit:
AYES: COMMISSIONER& Flores, Morales and Owens
NOES: COMMISSIONERS: Rodriguez
ABSENT, COMMISSIONERS: Lulan
ABSTAIN- COMMISSIONERS: None
Mary Ca�*qgh, Seenaw
City Planning 0606640166
PLN -16.00114= 6323 Firestone Blvd
AuOust 17, 2016 6 - Page 3
Resolution No.•t
Downey
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Pij
•• • _ • a 1{ • {- idl=1:1'. 1 :•::111 • •i
M
Dancing area shall only be located adjacent to the prep/employee area as designated on
the approved floor plan. Also, disc jockeys, live bands, and musicians shall be located
along the easterly wall of the subject tenant space, near the employer's office.
3) The sale and/or consumption of food and alcoholic beverages within the subject building
are prohibited at all times.
4) The business owner/applicant shall keep the entrance and exit doors to the business
closed during the hours when live entertainment is permitted.
5) live entertainment shall not be permitted before 6:00 p.m., seven (7) days a week and
shall cease by 1:30 a.m.
6) The permitted hours of operation of the business, except for live entertainment, shall be
Sunday through Thursday, from 6:00 p.m. to 2:00 a.m., and from 6:00 p.m. to 4:00 a.m.
Friday and Saturday.
7) The business owner/applicant is permitted to charge patrons an admission fee to enter
the business during pay-per-view sporting events. There shall be no cover charge at any
other time.
8) Customers shall not be within the business after the specified closing time.
9) The business owner/applicant and licensee shall not conduct valet parking on the subject
site without the approval of a conditional use permit from the Planning Commission.
10) All signs shall comply with Chapter 6 of Article IX (Land Use) of the Downey Municipal
Code.
11) All promotions of the business shall be conducted under direct control of the business
owner. There shall b® no outside promoters of live entertainment or night club activity at
any time.
12) The City Planner is authorized to make minor modifications to the approved plans or any
of the conditions if such modifications shall achleve substantially the same results as
would strict compliance with said plans and conditions.
13) Noise generated from the business shall comply with Municipal Code Section 4600 et. seq.
In any case, noise shall not exceed 65 dBA, measured at the property line. If noise -related
PLN -1640114 — 8323 Firestone Blvd
Resolution No.'"99
Downey Planning Commission
14)
15)
POLICE
16) Prior fo,oporating live entertainment the owneriapplicant shall obtain any and all required
Polio Department permits for this Conditional Use Permit.
17) The ownertapplicant shall comply with and strictly adhere to the security plan, as
aooroved by the Chief of Police. This shall include'the nor%ppllcsnt providing a
01
6alness monitoring the entertainment area. The number of security guards shall be
determined by the Chief of Police and maybe increased or decreased as the Chief of
Police determines is necessary.
PLN -18-00114= 6323 Firestone Blvd
August 17, 2016 5 - Pap 6
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27) The owner/applicant shall obtain all required permits and necessary inspectilons prior
beginning r •- :A of live entertainment at - subject tenantsr :r:-:
PLN -16-00114 -- 0323 Fimstone Blvd
August 17, 201® 5 - Page 0
ADJOURNMENT: Chairman Rodriguez adjourned the meeting at 11:14 p.m., to Wednesday, Marc 1,
2017, at 6:30p.m. at Downey City Hall, 111111 Brookshire Ave.
APPROVED AND ADOPTED this 1 e day of April 2017.
J�irrl Rodriguez, J*al -'an
h
ity Planning Cojnmission
INNI.I. . v
I 1 19-91. 1 UFYnir
the City of Downey at a regular meeting thereof hold on the 1190 day of A0. 2017, by the 16116WIng VOW, to
AYES: COMMISSIONERS: Rodriguez, Owens, Flores and Duarte
NOES: COMMISSIONERS: None
ABSENT: COMMISSIONERS: Dominguez
ABSTAIN: COMMISSIONERS: None
A
Mary Cavnagh,Seg retary
City Planlnllg Commission
-7- PC Agenda Page 67
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Cover Charge and Outside Promoters
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BRIGGS ALEXANDER R E. ' E I �.,! ' D
A PROFESSIONAL LAW CORPORATION
*1*V 16 PM 0 0 1 SENDER: BENIAmm A, McFADDEN
BEN@I3Ric;r,sANDALM(ANDER,C0M
CITY y
C I I Y CL DR; - L - " 1—
"'ftAL
NOTIC-u-, OF A
Alicia Duarte
Interim City Clerk
The City of Downey
I 1111 Brookshire Avenue
Downey, California 90241
Re: Notice of Administrative Appeal (Downey Municipal Code § 9806(b).)
PLN -17-3039
K911711 ' P�Prl
- M=NTME
Hookah Hub, to appeal the action taken by the Planning Commission on November 1, 2017,
under reference number PLN -1 7-3039, modifying the conditions of the CUP. This letter and
serves as our notice of appeal of that decision pursuant to Dow,ney Municipal Code
Section 9806(b).
Pursuant to representations made by the Planning Department, Appellant, Hookah Hub, is
exern t from i)avment of a fili-tg fee as described i -r. D
AoOkah Aub has requested several documents, including police reports, as part of its preparation
for the instant appeal, and requests that the hearing on this appeal be set at least one month after
the filing of this Notice of Appeal so that Hookah Hub may have adequate time to obtain,
review, and address these documents in its appeal.
The Planning Commission's action was in error, not supported by the evidence, and/or public
necessity, convenience, and welfare require that the conditions imposed be removed as set foil
2390 E. ORANGEWOOD AVENUE, STE. 530 - ANAHEIM, CA 92806
TEL. 714-520-9250 - FAx 714-520-9248
Attachment "E"
herein. In the end, the Planning Commission completely eliminated the purpose of the CUP (to
allow Hookah Hub to provide live music to its patrons), while adding conditions affecting the
primary general business of Hookah Hub (providing a late night hookah lounge for its patrons).
These additional conditions, and in particular the restrictions of hours of operation of the hookah
lounge, effectively eliminate Hookah Hub's business in violation of the Hookah Hub's vested
fundamental right to operate a hookah lounge as a legal nonconforming use. The Planning
Commission's actions were punitive in nature relying more on animosity towards the business
than a desire to hold a fair hearing on Hookah Hub's right to provide live music pursuant to the
CUP and to operate a hookah lounge as a legal nonconforming use.
F. Hookah Hub Has a Vested Fundamental Right to Operate in a Late Night
Hookah Lounge During the Hours Prior to the Issuance of the CUP Regardless
of the Conditions Set Forth in the CUP.
Hookah Hub operated at the property located at 8323 Firestone Boulevard, Downey, California
90241 ("Property") long before the passage of Ordinance 13-1311 which changed the use
category of "Hookah/Cigar Lounge" in the subject district from a permitted use to a
conditionally permitted use. Ordinance 13-1311, in fact, specifically states that, prior to the
adoption of Ordinance 13-1311, "Hookah/Cigar Lounges" were listed as permitted uses within
the Firestone Boulevard Gateway and Downtown Core districts of the Downtown Downey
Specific Plani [Ord 13-1311, Recital No. (1)(2).] That ordinance likewise provided that multiple
hookah lounges were present and existing prior to the passing of Ordinance 13-1311. [Ord, 13-
1311, Recital No. (1)(3).] Hookah Hub is one of those such businesses, and is thus exempt from
the requirement of obtaining a conditional use permit in order to operate as a Hookah/Cigar
Lounge.
Hookah Hub's status as a legal nonconforming use was confin-ned by then City Planner William
Davis at the August 17, 2016 hearing. [Planning Commission Minutes of August 17, 2016, Public
Hearing # 1.] Hookah Hub's status as a legal nonconforming use was likewise conceded in the
report dated August 17, 2016 from the Director of Community Development, Aldo E. Schindler
stating:
"[flhe subject hookah business is currently operating without a conditional use
permit. The City of Downey did not require a conditional use permit for the
oieration of hookah lounges under the revious ZonigniuLCodde- there
IN WOR&I. WIN160111 411m I off.
DO RL -71" 1805, d KI I =17MM18 [a] 6](410 — I I I 7b143k1W-111sTqWA11 fm
[Director of Community Development Report Dated August 17, 2016, pg. 2.]
•F M ff 1-1 f 1 11 - - •amefilai -ignis To operate as
such. (Goat Hill Tavern v. City of Costa Mesa (199 2) 6 Cal.AppAth 1519.) Further, the City has
never required Hookah Hub to obtain a conditional use permit to operate a Hookah/Cigar
Lounge.
Page 2 of 6
Hookah Hub has a vested fundamental right to operate a late night hookah lounge between the
hours of 6:00 p.m. and 2:00 a.m. Sunday through Thursday, and from 6:00 p.m. to 4:00 a.m.
Friday through Saturday because those were the hours it has operated at since its inception long
before the passage of Ordinance 13-1311. When Hookah Hub initially applied for the CUP, they
submitted a "Land Use Permit Application," dated April 16, 2016, specifically stating, in a
supplemental information form, that their hours of operation were "6 prn — 2am Sunday —
Thursday; 6 pin — 4 am Friday on Saturday."
City Planner William Davis specifically stated that the existing hours were "Sunday through
Thursday, from 6:00 p.m. to 1:00 a.m., and from 6.-00 p.m. to 4:00 a.m. on Friday and Saturday -
[Planning Commission Minutes ofAugust 17,2016, Public Hearing #IJ While Mr. Davis was
incorrect in his assertion that Hookah Hub closed at 1:00 a6m. from Sunday through Thursday'
correctly stated that they closed at 4:00 a.m. from Friday through Saturday. This misstatement
was corrected at the hearing by Mr. Hanna, an owner of Hookah Hub, and Lee Rabun, a land us
consultant hired by Hookah Hub, both of whom also communicated the importance of allowing
Hookah Hub to operate its hookah lounge activities during the original hours. [Planning
Commission Minutes ofAugust 17, 2016, Public Hearing #1, pg. 2.] The hours of operation prio
to the CUP hearing on August 17, 2016 were likewise confin-ned in the Director of Community
Development's report. [Director of Community Dei,elopment Report Dated August 17, 2016, pg
2.] Subsequently, the CUP was approved with the correct pre -CUP hours of operation for the
hookah lounge of 6:00 p.m. to 2:00 a.m. Sunday through Thursday, and 6:00 p.m. to 4:00 a.m.
Friday through Saturday. Hookah Hub, however, asserts that this limitations was unnecessary fo
the purposes of granting the CUP, which was sought to allow Hookah Hub to hold live
entertainment.
On August 17, 2016, the Planning Commission adopted Resolution No. 12-2990 approving T
Hookah Hub's CUP allowing them to: I
44operate live entertainment at an existing hookah lounge business, on pr•r-
• •
peocated at 8323 Firestone Boulevard, and zoned DDSP (Downtown Downey
Specific
[CUP, § I(A).]
Over the past several years, Hookah Hub has invested hundreds of thousands of dollars
com3L-d" with local ordinances*.,--nj&0h1
on November 10, 2015 to operate a hookah lounge at the Property. On October 1, 2014, the City
issued Hookah Hub a business license under account number 281083. (Anderson v. City ofLa
Mesa (1981) 118 Cal.App.3d 657; and Strn v. San Diego Coast Regional Com. (1980) 101
Cal.App,3d 38.)
On November 1, 2017, the Planning Commission held a hearing on the Planner's
recommendation to make numerous changes to the conditions on the CUP. In doing so, they
eliminated the only benefit of the CUP, its right to allow live entertainment under the CUP, while
also exacting addition restrictions on the operation of the hookah lounge, in violation of Hookah
Hub's vested fundamental rights. In particular, the Planning Commission prescribed hours of
Page 3 of 6
B I R ! G 15k&fXMRCY
operation for the business in general, including the operation of the hookah lounge without live
music, of "6:00 p.m. to 12:00 a.m. seven (7) days a week." [Resolution 17-3039, Ex. A,
Condition #6.]
As such, the Planning Commission's decision, to the extent it purports to limit the hours of
operation of the hookah lounge, were in error, not supported by the evidence, and do not best
serve the public necessity, convenience, and welfare of the community.
11. The Commission Deprived Hookah Hub of a Fair Hearing While Acting with
Arbitrary Discrimination Towards Hookah Hub.
During the hearing on November 1, 2017, it was evident by the statements made by
Commissioner Owens, that the Commission harbored animus, resentment and ill will towards the
business generally, and, as a result, was not providing Hookah Hub with a fair and impartial
hearing. In particular, Commissioner Owens made the following assertions and expressed the
following opinions that were not supported by the evidence and which demonstrate his personal
animus towards Hookah Hub.
1. That Hookah Hub's application was a deliberate attempt to egregiously, purposefully,
and deliberately misrepresent the purpose of the CUP to the Planning Commission,
2. That Hookah Hub sold alcohol at the Property.
3, That Hookah Hub cooked food with gas stoves.
4. That Hookah Hub condones extreme violence.
5. That the Planning Commission should revoke Hookah Hub's permit entirely.
6. That Hookah Hub is not the kind of business we want in Downey.
7. That the acts of Hookah Hub are egregious and beyond reproach, and that water, not soft
drinks, should be served as a punishrnent for Hookah Hub.
8. That sometimes you do not need evidence to take action.
Hookah Hub is informed, believes, and thereon asserts that a competing hookah lounge in the
City of Downey has had a similar track record of occasional police actions. Neither the City, nor
the Planning Commission have taken similar adverse action against that hookah lounge. Hookah
Hub is in the process of gathering further information regarding this entities history, and will
present such evidence at the hearing on this appeal. As such, the decision of the Planning
Commission should be overturned in its entirety.
111. Public Necessity, Convenience, and Welfare Require the Council to Overturn the
Commission's Decision Because the Limitation on Hookah Hub's Hours of
Operation Effectively Shut Down the Business.
Hookah Hub derives most of its revenue from late night patrons. The Planning Commission's
action deprives Hookah Hub of four (4) hours of prime operation time from 12:00 a.m. to 4:00
a.m. from Friday through Saturday, and two (2) hours of prime operation time fi-om 12:00 a.m. to
2:00 a.m. on Sunday through Thursday. If Hookah Hub is not permitted to operate during those
hours, they will not be able to pay its operating expenses, and will be forced to close down. As
such, the Planning Commission's punitive action in depriving Hookah Hub of its operation of a
Page 4 of 6
PtJGG LEXANDER
hookah lounie without live music i I
IMA -74 10 1 K-�
IV. The Imposition of Additional Restrictions on the Operation of a Hookah Lounge
Constitute an Exaction in violation of the Fifth Amendment to the United States
Constitution.
As described above, the Planning Commission took the unnecessary action of punitively
reducing the hours of operation of the hookah lounge, while also eliminating the purpose of the
CUP—to allow the Hookah Hub to provide live entertairiment to its customers. This action
constitutes an exaction or taking against the Hookah Hub which has a vested fundamental right
to continue operating its business as it existed before the passage of Ordinance 13-1311 and
before the issuance of the CUP, Conditions imposed in connection with project approvals
involve a special application of this doctrine that protects the Fifth Amendment right to just
compensation for property the government takes when owners apply for land use permits. (See
Lingle v. Chevron U.&A Inc. (2005) 544 U.S. 528, 547; Dolan v. City of Tigard (1994) 512 U.S.
374, 385.) The doctrine of unconstitutional conditions accommodates these realities in the
context of the Fifth Amendment by allowing the goverriment to condition approval of a permit
on the dedication of property to the public so lod "rough
proportionality" between the property that the government demands and the social costs of the
applicant's proposal. The necessary predicate to application of the doctrine of unconstitutional
conditions is that the exaction required as a condition of the permit sought is sufficiently onerous
that it would constitute a compensable taking if simply appropriated by the goverm-nent. (Powell
v. County ofHun7boldt (2014) 222 Cal.App. 4th 1424, 143 9; Lingle v. Chevron U. &A. Inc., 544
546; See also Horne v. U.S Dept. ofAgriculture (2014) 750 F.3d 1128,1142.)
In order to meet the constitut onal requirements, a dedication of property (or other adverse
action) as a condition to a development permit requires: (1) that there be a nexus between the
development and the condition; and (2) that there be a "rough proportionality" between the
nature and extent of the dedication and the impact of the proposed development. (Dolan v, City
of Tigard (1994) 512 U.S. 374, 3M) This test is premised in the notion that a constitutional
• 5ht to be free from
coerced into giving them up. (M)
Under the first prong, there must be a direct and rational relationship (a "nexus") between any
exaction required from the property owner and the burden iMDOsed o -t a legitiwate state
- M-IMIN U1,111*147411W, On 0 . - I I N
IMPUSCU 0J LIM r1dU1U1Hg Col-ru-nission Decause Inere
is no benefit remaining under the CUP. The only benefit of the CUP to Hookah Hub was
extinguished when the Planning Commission took away its right to bold live entertainment. As
such, there can be no relationship whatsoever between any legitimate state interest in keeping
Hookah Hub closed after 12:00 a.m.
Further, under the second prong, there must also be "rough proportionality" between the nature
and extent of the dedication required and the project impact. Here, there is no impact as Hookah
Page 5 of 6
Hub is prohibited from providing live entertainment entirely by the Planning Commission's
action. The condition required is for Hookah Hub to refrain fi-orn operating a Hookah Lounge
(without live entertainment) seven (7) days a week after 12:00 a.m. It therefore stands to reason
that a municipality may not remove the benefit of a conditional use pen -nit while still imposing
conditions on r ►rimary use. (Bowman v. CaliforniaCoastal ♦ 114
Cal.App.4th 1146, 1151-1152 (2014) [minor work based on separate building pert -nit did not
constitute acceptance of benefits of coastal development permit, or prohibit landowner from
challenging condition].)
In conclusion, the Planning Commission has taken punitive actions against Hookah Hub in
taking steps to effectively shut down and eliminate the business. The Planning Commission's
action were based not on a common sense, fair, adjudication of the CUP modification, but on
personal animus directed towards the business, and in violation of Hookah Hub's vested
fundamental rights. As such, the City Council should overturn the Planning Commission's action
in their entirety, or to the extent the Planning Commission's action interfered with Hookah Hub's
original vested fundamental rights to operate including and especially during the hours described
herein.
Hookah Hub reserves the right to submit further briefing and evidence on these issues up until
and at the time for hearing set by the City Clerk.
Sincerely yours,
Page 6 of 6
s�Gs/�LExnNn�R
11/15/2017 Gmall - RE: Hookah Hub; Appeal Infonnalion
MGmail' Benjamin McFadden <mcfaddenlaw@_gmaii.com>
A
0 0
Mr. McFadden,
Guillermo has had to leave the office today for a personal emergency, but I want to make sure you are not delayed.
The appeal does need to be filed with the City clerk prior to
. 2o17. She referred you back
to us for the submittal requirements. Additionally, we will help you navigate the process to submit. In order to
appeal, you will need to submit your request In writing, The letter shall state what you are appealing (i.e. the entire
Planning Commission decision, specific conditions of approval, etc.). Since this was a City initiated action, there is no
appeal fee.
David Blumenthal
City Planner
314 Cityofv—owney.
11111 Brookshire Avenue
Downey, CA 90241
Phone Number (562) 904-7164
Email: dbIumLnthalIOd_owneyca._Qrq
A Please consider the environment before printing this email.
From: Benjamin McFadden fmallto:ben@briggsandalexander.com]
Sent: Monday, November 06, 2017 1,47 PM
To: Guillermo Arreola
Cc: David Blumenthal; Alicia Duarte; Lev Zartanan
Subject: Re: Hookah Hub; Appeal Information
Dear Mr. Arreola: