13 Staff Report - 408 N. Santa Cruz AveSpW N p
'.4111
gas s~sas COUNCIL AGENDA REPORT
DATE: August 15, 2006
TO: - MAYOR AND TOWN COUNCIL
MEETING DATE: 8/21106
ITEM NO:
13
FROM: DEBRA J. FIGONE, TOWN MANAGER
SUBJECT:_CONSIDER_ANA_PPEAL DF A-PI✓AIVNING-COM IISSION-DECISTON
REGARDING MODIFICATIONS OR REVOCATION OF CONDITIONAL USE PERMIT U-
94-44 (GOGUEN'S LAST CALL) FOR THE.OPERATION OF A BAR ON PROPERTY
ZONED C-2. APN: 529-07-046. PROPERTY LOCATION: 408 N. SANTA CRUZ AVENUE.
PROPERTY OWNER: LOS GATOS SHOPPING CENTER, LLC. APPELLANT: CYNTHIA
GOGUEN.
RECOMMENDATION:
1. Open and hold the public hearing.
2. Close the public hearing.
3. Uphold the Planning Commission's decision to modify Conditional Use Permit U-94-44
for Goguen's Last Call (requires motion).
4. Refer to the Town Attorney for the preparation of the appropriate resolution.
If the Town Council determines that the Planning Commission's decision should be reversed or
modified:
1. The Council needs to find one or more of the following:
(1) where there was error or abuse of discretion on the part of the Planning Commission;
or
(2) the new information that was submitted to the Council during the appeal process that
was not readily and reasonably available for submission to the Commission; or
(3) an issue or policy over which the Commission did not have discretion to modify or
address, but which is vested in the Council for modification or decision.
PREPARED BY: BUD N. LOR
DIRECTOR . COMMUNITY DEVELOPMENT
Reviewed by: Assistant Town Manager Town Attorney
Clerk Administrator Finance Community Development
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
2. If the predominant reason for modifying or reversing the decision of the Planning
Commission is new information as.defined in Subsection (2) above, it is the Town's policy
that the application be returned to the Commission for review in light of the new
information unless the new information has a minimal effect on the application.
3. Refer to the Town Attorney for preparation of the appropriate resolution.
In this hearing, Council may take into consideration the Planning Commission's decision to
modify the Conditional Use Permit (CUP) fdr Goguen s Last Callas well-as staff's original-----
recommendation to revoke the CUP. Based on its review of the evidence, Council may uphold
the Commission decision, modify the Conditions of Approval, or revoke the CUP.
BACKGROUND:
At the meeting of May 10, 2006, the Director of Community Development requested that the
Planning Commission schedule a public hearing to consider the revocation of the Conditional
Use Permit for Goguen's Last Call (Last Call), a bar located at 408 N. Santa Cruz Avenue. The
Commission agreed to schedule a public hearing on June 14, 2006.
Section 29.20.315 of the Town Code states that the Planning Commission may revoke or modify
a zoning approval if it finds one of the following grounds exist:
(1) That the zoning approval was obtained by fraud;
(2) That any person making use of, or relying upon the zoning approval is violating or
has violated any conditions of such zoning approval or of Section 29.10.095, or the
use for which the zoning approval was granted is being, or has been, exercised
contrary to the terms or conditions of such approval; or
(3) That the use for which the approval was granted is so exercised as to be detrimental to
the public health or safety, or to be a nuisance.
The Director of Community Development identified five key issues relating to Last Call, as
follows:
1. The bar has repeatedly permitted the sale of illegal controlled substances (drugs).
2. The bar has repeatedly sold or stocked for sale contaminated alcoholic beverages.
3. The operation of the bar has led to an inordinate and outrageous number of calls for
service.
PAGE 3 .
MAYOR AND TOWN COUNCIL.
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
4. The bar has been operated as a disorderly house and has had its license to sell alcoholic
beverages revoked or suspended by the Dept. of Alcoholic Beverage Control, with a 30-
day suspension served in January/February of this year.
The bar, by its operation, has attracted a substantial number of transients who have loitered
behind the premises in an area adjacent to the public parking lot, creating an aura of a
threat to personal safety, creating unsightly blight and litter, resulting in public urination
and public exposure, and creating conditions requiring cleanup by Town crews at public
expense.
Each of these issues will be discussed in more detail in the following section.
KEY ISSUES:
Staff has received two memoranda from the Police Department summarizing the public health
and safety issues relating to Last Call (Attachments La and 2.f). The memoranda provide
information on the following:
1. Calls for police services, including total calls, serious calls for service, and late night calls
for service.
2. Undercover investigation of narcotic sales at Last Call by the California Department of
Alcohol Beverage Control (ABC) resulting in a suspension of the bar's alcohol license.
Attached to the memorandum is the Certificate of Decision by the ABC which provides
details on the undercover investigation and their, findings.
3. Summary of inspection reports from the Santa Clara County Environmental Health
Department which found contaminated bottles of alcohol, bottles with low alcohol proof
levels, and violations of food protection, water and waste requirements. Also, attached are
the reports from the Health Department providing details on the findings of their
inspections.
Each of the five key issues relating to Last Call is briefly discussed below. This is a summary of
the most significant issues associated with Last Call. Staff provided additional discussion of
these issues in the previous Commission staff reports.
1. The bar has repeatedly permitted the sale of illegal controlled substances (drugs).
The ABC undertook an undercover investigation of narcotic sales at Last Call. The
investigation documented five instances of narcotics sales to undercover investigators over
a period of roughly one year. One sale was from an employee of Last Call. Cynthia
Goguen, the business owner, stipulated to the narcotic sales in the ABC's Decision (see
attachments to Attachment La).
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
Kent Washburn, attorney for Cynthia Goguen, states that the business has.been operated in
a drug-free manner for the past two years and she has implemented measures to discourage
drug use and sales at the bar (Attachment Lc). To the Town's knowledge, no undercover
investigations have occurred at Last Call over the past two years.
2. The bar has repeatedly sold or stocked for sale contaminated alcoholic bevera es.
Over the past four years, the County Environmental Health Department inspections have
revealed five instances in which Last Call was serving contaminated bottles of alcohol.
The County discovered a-total-of-l6-bottles-were contaminated. --in-addition-to-the-County- -
inspections, Cynthia Goguen has stipulated to the fact that Last Call possessed 14 bottles of
contaminated alcohol on July 15, 2004. The term contamination includes insects, hair, and
other foreign particles.
Mr. Washburn'states that there have been "a few incidental and minor violations" in selling
contaminated alcohol. Staff has, reviewed the inspection reports of the County
Environmental Health Department and believes five violations over the past four years in
addition to the ABC's discovery of 14 bottles of contaminated alcohol demonstrates a
repeated and ongoing pattern of unsanitary practices.
3. The operation of the bar has led to an inordinate and outrageous number of calls for Police
.services.
The Police Department reports that there have been 1218 calls for service to Last Call since
November 1999. More important, there have been 189 calls for police service of a serious
nature during that same time period. Serious calls typically involve a response by at least
two officers. Examples of serious calls are assault with a deadly weapon, active fights,
robbery, public drunkenness, narcotic sales, and domestic violence.
The Police Department also reviewed calls for service at Last Call to determine if there is a
concentration of serious calls during the late evening hours (Attachment 21). The data
indicates that a significant proportion of calls for Battery, Assault with a Deadly Weapon,
Active Disturbances, and Active Fights occurred after 10:45 P.M., as.follows:
• Battery: 47% after 12:00 midnight
• Assault with a Deadly Weapon: 100% after 10:45 P.M.
• Active Disturbances: 67% after 11:00 P.M.
• Active Fight: 93% after 11:45 P.M.
The Police Chief testified that incidents of this type require a response by an average of
three officers. Considering evening staffing levels and demands for service during late
evening hours, response to serious calls for service at Last Call requires a significant
commitment-of the Department's officers. In addition, every incident requires police
PAGE 5
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
resources to prepare reports, transport arrestees to jail, and conduct follow-up
investigations to close the case.
4. The bar, by its operation, has attracted a substantial number of transients who have loitered
behind the premises in an area adjacent to the public parking lot, creating an aura of a
threat to personal safety, creating unsightly blight and litter, resulting in public urination
and public exposure, and creating conditions requirin clg eanup by Town crews at public
expense.
- Theissue.of transients was discussed at both Commission hearings._ The Town and_Mr,_ _
Washburn disagree on whether a linkage exists between Last Call and the transients behind
the bar. The Police Chief concludes that there is a connection between Last Call and the
number of transients behind the bar, but the degree of linkage is unclear.
5. The bar has been operated as a disorderly house and has had its license to sell alcoholic
beverages suspended by the Department. of Alcoholic Beverage Control, with a 30-day
suspension served in January/February of this year.
Based upon the ABC's investigation of narcotic sales, an Administrative Law Judge
revoked Last Call's alcohol license, but stayed the revocation for three years with the
condition that no further Violations occur during the three year probationary period and
imposed a 30 day suspension. The 30 day suspension began on January 29, 2006.
DISCUSSION:
Commission Hearings:
The Commission held the first public hearing on June 14, 2006. The staff report is included as
Attachment 1. In the report, staff concluded that ample evidence exists to revoke the
Conditional Use Permit as allowed under the Town Code. At the hearing, the Commission heard
testimony from the Town staff (Community Development and Police) and Kent Washburn, the
attorney for the business owner. The Commission also heard numerous speakers in support of
the bar as well as testimony from several citizens that identified issues such as disturbances,
loitering, and littering.
The Commission continued the public hearing to the meeting of June 28, 2006. The
Commission did not make a decision on the issue of revocation and asked staff to develop
revised conditions of approval to address the problems identified with Last Call consideration.
At the meeting of June 28, staff again recommended and continues to recommend revocation of
Last Call's CUP based upon the evidence presented (Attachment 2). As requested by the
Commission, staff also developed Draft Conditions of Approval based on the issues identified by
staff and the neighbors. The conditions were developed with the intent of minimizing impacts on
the community.
PAGE 6
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
In .summary, the Draft Conditions address the following areas:
Hours of Operation:
The existing CUP for Last Call permits hours of operation of 6:00 A.M. to 2:00 A.M.,
seven days a week. The Town's Alcohol Policy (Attachment 2.e) now establishes earlier
closing times for alcohol service of 11:00 P.M. on Sunday through Thursday and 1:00
A.M. on Friday and Saturday. The Policy states that an existing establishment. in good
- - - -standing-r-nay-continue-to-operate under previously existing--hours of-operation.-Based-upon-
the evidence presented, staff and the Commission concluded this bar is not in good
standing and the hours of operation should be modified.
Staff's Draft Conditions were intended to address existing issues with the bar operation and
to minimize impacts to the community while.granting the business owner an opportunity to
continue operating. The Draft Conditions reduce the hours of operation to 11:00 P.M. on
Sunday through Thursday and 12:00 midnight on Friday and Saturday. This is an attempt
to reduce disturbances to the neighbors during late night hours.
2. Condition of Rear Area:
Staff developed several conditions to improve maintenance of the area in back of the bar
and to discourage loitering (see Conditions 8, 10, and. l 1).
3. Bar Operations:
The conditions require the business owner to submit a security plan to the Chief of Police
and to meet with the Police Department monthly. It is anticipated that the plan will
include, but is not limited to, hiring a respected security company with on-site, uniformed
security guards during specified hours. The conditions also establish performance
standards for bar managers (see Conditions 6, 9, 12, and 13).
4. Agreement with Town:
Condition 14 requires the business owner to enter into a "Last Chance Agreement" with the
Town establishing that any proven violation over the next three years will result in
immediate revocation of the CUP. Conditions further require the applicant to. partially
reimburse the Town for current and future costs incurred in abating the nuisance and
monitoring compliance with the conditions (see Conditions 14 and 15). Staff anticipates
that significant resources will be required to implement and monitor the conditions of
approval if the CUP is not revoked.
PAGE 7
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
5. Neighborhood Meetings:
The business owner is required to hold two neighborhood meetings per year to address
impacts on the surrounding community.
Commission Decision:
At the June 28 hearing, the Planning Commission determined that that Last Call is detrimental to
the pubic health and-safety and is-a nuisance-but declined -to-revoke-the-C-UP-, opting-instead-to------- -
modify the CUP by adopting new conditions of approval. The Town Attorney prepared a
Resolution to finalize the Commission's decision which the Commission adopted on July 12
(Attachment 6). The adopted Conditions of Approval are attached to the Resolution (Exhibit A.)
The Planning Commission modified three of the Draft Conditions of Approval, as follows:
1. The Commission modified Condition 10 to require Last Call to implement a one-time
clean-up of the Northside Parking Lot. The Condition originally required the bar to
maintain the area in back of the bar in a condition clear of litter and debris on an ongoing
basis.
2. The Commission modified Conditions 16 and 17. Staff proposed that Last Call reimburse
the Town for all staff and attorney costs incurred in abatement of the nuisance and
monitoring ongoing compliance with the conditions of approval. The Commission capped
the annual reimbursement cost at the cost of a CUP application (roughly $3600).
Applicant's Statements at Hearing:
Mr. Washburn,.the appellant's attorney, raised three major points at the second Commission
hearing. First, he stated that revocation was premature since the Police Department did not meet
with Ms. Goguen to address the police problems at the bar, contrary to its treatment,of Mountain
Charley's and the Boulevard Tavern. Further, the Town did not warn the appellant that the
problems at the bar could jeopardize its CUP.
Staff believes the bar's problems are self-evident and their responsibility to mitigate; Ms.
Goguen acknowledged criminal activity at the bar in the ABC decision resulting in the 30-day
suspension of her alcohol license. In addition, Last Call specifically initiated a number of the
calls to the Police Department. At the hearing, staff clarified that discussions with Los Gatos Bar
and Grill and Mountain Charley's were initiated when the bar owner applied for a CUP
modification. The discussions with the Boulevard Tavern developed from an unplanned
conversation between the bar owner and a police officer. The owner of the Boulevard Tavern
was concerned about the operation and clientele of his establishment and was very receptive to
the advice of the officer. In the case of Last Call, the bar owner has been extremely
PAGE 8
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 15, 2006
uncooperative when police have been in the bar and in one instance asked a police officer to
leave the bar.
Second, Mr. Washburn stated that the Police Department had not given him copies of the full
police reports on each of the calls for service. Staff provided Mr. Washburn with advance copies
of the same police data that was provided to the Planning Commission on May 26, 2006. The
Police Department has compiled copies of the full police reports on each of the 80 most serious
calls for service. Copies of these report have been placed in a p4 „h1111~ V ,n 1 f i 11 V 1 e, ' 11 l r lho1V 11 1 C0 rim nnity
4 1111
Development Department should the Council or member of the public wish to review them.
--Staff made copies of the same reports. available to Mr. Washburn on August 3, 2006. Further,_______ _
staff informed Mr. Washburn that the remaining 109 reports of serious police calls or even all
1218 reports on calls for service would be made available for his review.
Third, Mr. Washburn requested that the Commission continue the public hearing for 90 days to
allow his client.to demonstrate that revocation is not necessary and to further demonstrate that
there is no need to reduce the bar's hours of operation. Staff opposed Last Call's request for a
three month continuance. Staff recommended that the Commission weigh all of the evidence
presented and determine if the grounds for revocation are met. Staff further recommended that if
the Commission decided not to revoke the CUP that the Commission should adopt the Draft
Conditions to the CUP to ensure that the bar's impacts to the community will be minimized for
as long as the bar is in operation.
Applicability of Alcohol Policy:
At the June 28, 2006 Commission hearing, Commissioners and Mr. Washburn questioned the
applicability of Section 11.6 of the Town Alcohol Policy to this proceeding. This section requires
the Town to make special findings in approving a CUP to allow alcohol sales past 10:00 P.M.
The findings are as follows:
a. Late night service will not adversely impact adjacent residential neighborhoods.
b. The applicant does not have a history of complaints and non-compliance with local
ordinances or the Alcoholic Beverage Policy.
C. The applicant has demonstrated a clear benefit to the community.
Commissioners stated that, if applicable, they could not make these findings and they would be
forced to close the bar at.10:00 P.M. Some Commissioners were concerned that Section 11.6 of
the Alcohol Policy put them in a "straitjacket" and did not allow them flexibility in considering
hours of operation past 10:00 P.M. After review, the Town Attorney interpreted that the special
findings were not applicable to this situation given this is a revocation proceeding and
technically not a CUP application. During the hearing, the Town Attorney stated,that the Town
Council is free to make a different interpretation of the Policy and determine how it should be
applied if this matter was appealed to the Council..
PAGE 9
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 16, 2006
Appeal of Planning Commission Decision:
Ms. Goguen appealed the Commission's decision on July 24, 2006 (see Attachment 5). In
summary, the reasons for appeal are a follows:
The Commission erred because it misinterpreted evidence, believed falsified evidence, and
misinterpreted the law.
■ The Police Department did not provide access to police reports.
- - - = - - ■ - - The-Town-has-no jurisdiction over contamination- of-alcohol:----- - - - - - -
Mr. Washburn has stated that Ms. Goguen is not available for this meeting. He has criticized the
Town for failing to inform him and his client of the date of the Council_ hearing until August 10;
2006. In fact, the Town Clerk mailed confirmation of the hearing date to Ms. Goguen on July
26, 2006 via Certified- Mail and the return receipt confirms delivery (see Attachment 5).
CONCLUSION:
In order to revoke the Conditional Use Permit for Last Call, the Council must find that the use is
detrimental to the public health or safety, or is a nuisance. Staff finds the totality of evidence,
including narcotic sales, disproportionate impacts to police services, and the ongoing pattern of
unsanitary business practices, clearly establishes that this use meets the required grounds for
revocation of the CUP.
The Planning Commission concluded that the use is detrimental to the public health and safety,
and is a nuisance as required by Section 29.20.315 of the Town Code and elected to modify the
existing Conditional Use Permit. As requested by-the Commission, staff developed a set of
stringent conditions of approval that are designed to minimize impacts to the public health and
safety, abate the current nuisance issues, and provide for immediate revocation should future
violations occur.
ENVIRONMENTAL ASSESSMENT:
Is a project as defined under CEQA but is Categorically Exempt under Section 15301 of the
CEQA guidelines.
FISCAL IMPACT:
Unless the CUP is revoked, the Town will have to absorb current and future costs to abate the
nuisance and ensure compliance with the Conditions of Approval. Significant staff time will be
involved in implementing and ensuring compliance with the conditions. The bar owner is
required to reimburse the Town for costs up to roughly $3600 annually_but this will not fully
compensate the Town nor will it address the fact that staff resources will have to be shifted from
other important tasks in serving the community.
PAGE 10
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
August 17, 2006
Attachments:
Previously Submitted:
1. Planning Commission Report dated June 8, 2006 which includes:
a. Memorandum from Scott R. Seaman, Chief of Police, dated May 31, 2006 plus
attachments
b. Memorandum from Roy Alba, Code Enforcement Officer, dated May 30, 2006
plus attachment
c. Business Owner's Statement prepared by Kent G. Washburn, dated June 2, 2006.
- = - - - - d-.--Letter to Cynthia-Goguen-dated April 28, 2006 - - - - - - - - - - -
e. Planning Commission Report dated May, 4, 2006
f. Planning Commission Desk Item dated May, 10, 2006
g. Letters from Los Gatos Shopping Center, LLC dated April 28, 2005 and February
28, 2006
h. Conditional Use Permit U-94-44
i. Planning Commission Desk Item dated June 14, 2006
2. Planning Commission Report dated June 23, 2006 which includes:
a. Required Findings for Modification of CUP
b. Draft Conditions of Approval
c. Letter from Kent G. Washburn dated June 19, 2006
d. Planning Commission Report dated June 8, 2006
e. Town Alcohol Policy
f. Planning Commission Desk Item dated June 28, 2006
3. Verbatim Transcript of Planning Commission meeting of June 14, 2006
4. Verbatim Transcript of Planning Commission meeting of June 28, 2006
Attached:
5. Appeal of Planning Commission Decision Form filed July 24, 2006 and Proof of
Service (Certified Mail and Return Receipt Requested forms) dated July 26, 2006.
6. Resolution 2006-1
7. Email from Norman Matteoni dated August 8, 2006 (1 page)
8. Letter from Norman Matteoni received August 10, 2006 (2 pages)
9. Fax from Norm Matteoni received August 15, 2006 (3 pages)
10. Fax from Kent G. Washburn received August 16, 2006 (3 pages)
11. Fax from Kent G. Washburn received August 17, 2006 (1 page)
Distribution:
Cynthia Goguen, 408 N. Santa Cruz Ave., Los Gatos, CA 95030
Jim Zanardi, 16401 S. Kennedy Rd, Los Gatos, CA 95030
Kent Washburn, 123 Jewell Street, Santa Cruz, CA 95060
William Conners, P.O. Box 1521, Pebble Beach, CA 93953
Norman Matteoni, Matteoni, O'Laughlin & Hechtman, 848 The Alameda, San Jose, CA 95126
NADEV\CNCLRPTS\2006\408 NSC TC 082106.doc
ATTACHMENTS 1 AND, 2, ond3.
PREVIOUSLY SUBMITTED
Copies are available in the
Clerk Department for review
2
3
4
CER'T'IFIED MAIL 7002 0460 00013983 0603
RETURN RECE+'PI-11 REQUESTED
9
10
11
12
13
14
15
16
17
18
19
21
TOWN OF LOS GATOS
CLERK DEPARTMENT
PROOF OF SERVICE
(by Mail)
I, Jackie D. Rose, declare:
1. I am over the age of 18 years, not a party to this action, and am employed in the County of Santa
Clara at 110 E. Main Street, Los Gatos, California, 95030.
2. 1 am readily familiar with the Town of Los Gatos' practice for collection and processing of
correspondence for mailing with the United States Postal Service and that correspondence is deposited with the
United States Postal Service that same day in the ordinary course of business.
3. On July 26, 2006 I mailed at Los Gatos, California a true copy of CONFIRMATION OF
PUBLIC HEARING relating to property know as 408 N. Santa Cruz Avenue, Los Gatos, California to the
following:
a. Cynthia L. Goguen, 408 N. Santa Cruz Avenue, los Gatos, CA 95030
4. I declare.under penalty of perjury that the foregoing is true and correct and that this declaration was
executed on July 26, 2006..
Jackie
Dse, CMC .
23 Tomr-Of Los Gatos
110 East Main Street
24 Los Gatos, CA 95030
25
cc: DIRECTOR OF COMMUNITY DEVELOPMENT
26
cAproof-public-hearing
27
28
Attachment 5
IUL cl LUVU ,i"' iu'')) nil ivwiY
FILING FEES
$277.00 Residential
$1,111.00 per Commercial, Multi-
family or Tentative Map Appeal
iw rriA "u- 4u0,)04014
Town of Los
Office of the To
110 E. Main St,, Los I
APPEAL OF PLANNING
Q ~ -
ED
i
e UL Z 4 2006
CA 95030
TOWN OF LOS GATOS
1, Ilse undersigned, do licreby appeal a decision of the Planning Commission as follows: (PLEASE TYPE OR PRINT NEATLY)
DXI'E OF PLANNING COMMISSION DECISION: ,U 12.. 2.00( U-At- V Z 1)
PROJECT / APPLICATION NO; LA-1+-44 1~
ADDRESS LOCATION: 44t~`S 1,4 • So A+-m CvLkz Ave,
Pursuant to tlic'Town Code, the Town Council may only meant an appeal of a. Planning Conmvssion decision i _._st matters iftl]G
Council finds that one of three (3) reasons exist or gtandiug the appeal by a vote of at least three (3) Council members. Therefore,
please specify how one of those reasons exist in the appeal
2.
The PIanniug Commission erred or abtised its discretion because a • 1 Yet t S i n 21r J PTV 1'`C ~
ypmo ~ea
} 1.1 _ tx
GO T 0
alle
tW
3•
The Plaiming Commission did
or address the following policy or issue that is vested in the Town
IF MORL+ SPACE IS NEEDVI), PLEAS&ATTACII ADDITIONAL SHEETS.
1MFOUXAN'r:
1. Appellant is responsible for fees for transcription of minutes. A 5500.00 deposit is required at the time of fling.
2. Appeal' must be filed within tea (10) calendar days of Pluming Commission Decision accompanied by the required filing fee.
Deadline is 5:00 pm. on the 101 day following the decision. If the 10" day is a Saturday, Sunday, or Town holiday, then it
may be filed on the workday immediately following the le day, usually a Monday,
3, 'I$o Town Clerk will set the hearing withing 56 days of the date of the Planning Commission T3=Won (Town Ordinance No,
1967)
4. An appeal regarding a Change of zone application or a subdivision neap only must be filed within the time limit specified in
The zoning or Subdivision Code, as applicable, which is different from other appeals, .
51 Once filed, the appeal will be heard by the Town Council.
6. 1 f the reason for granting an appeal is the receipt of new information, the application will usually be returned to the Planning
Commission for reconsideration.
PRINT NAME: ej-, SIGNATURE:
DATE: 1,7 ADDRESS: N • sQ to {7~
OFFICIAL USE ONLY
DATE 014 PUBLIC 1IMIU NG: 0(0 CONFIRMATION LETTER SENT: Date;
Pending Planning Department Confirmation
DA•TE'TO SENT?PUBTJCATION:.aC)CO
N:1Df-.W-OIUAWlanninalPlamiing Comnksion APr4akypd
TO APPLICANT & APPELLANT BY:
DAT1; OF PUBLICATION: 8 -9-C*
Revised July I, 2006
Then: is new informaiion that was not reasonably available at the time of the Plaimiug Commission decision, which is
` ■ Complete items 1, 2, and 3. Also complete A.
Rem 4 if Restricted Delivery is desired. X
■ Print your name and address on the reverse
so that we can return the card to you.
■ Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to: D1
'
'CYNTHIA L. GROGUEN
408 N. SANTA CRUZ AVENUE
LOS GATOS, CA 95030
2. Art
(TM
PS F4
R eceKed b ( PH ted N e) . Date of Dellybry
Is deliveryaddress different from item 1? C Y-8
If YES, enter delivery address below: No
3. Type
f e~rtified Mail ❑ Express Mail
❑ eglstered ❑ Return Receipt for Merchandise
- ❑ Insured Mail ❑ C.O.D.
4. Restricted Deliver/? (Extra Fee) ❑ Yes
- - ---------102595-024A.1540
Postal
CERTIFIED: MAIL RECEIPT
Domestic
( Mail only: No insurance
M
o
O.FFFICIAL
USE
M
Postage S
Q,r V
M
M
C
ertlBed Fee
C3
F
o
~
n
I~
n.rk
°
(
n
ra
anl
t Regrd-"
Ha
C3
eM i~,Ir"
°
TOW Pate. A Fees $
..u
t
n
o
°
CYNTHIA L. GROGUEN
ru
°
or PO App
or POEonrlVo 408 N. SANTA CRUZ
VENUE
r
City, bYsb Z1P+~4 LO.S `Ml`a' ,
[A
I Q
:rr _ r.
RESOLUTION 2006 - 01
RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF LOS
GATOS DETERMINING THAT THE OPERATIONS OF THE LAST CALL BAR IS
DETRIMENTAL TO THE PUBLIC HEALTH AND SAFETY AND CONSTITUTES A
NUISANCE AND AMENDING THE CONDITIONS OF APPROVAL PURSUANT TO
LOS GATOS TOWN CODE SECTION 29.20.315
APN: 529-07-046
~n1.1r~~rrnrJ !T -nr USE 1 1 DET"D.M 11
VV DAL ll /
IT: U-94-44
PROPERTY LOCATION: 408 N. Santa Cruz Ave.
WHEREAS:
1.' This matter came before the Planning Commission for public hearing on June 14,
2006, at the direction of the Commission given on May 10, 2006, in response to a request
by the Director of Community Development made pursuant to Town Code section
29.20.310. The public hearing was continued to June 28, 2006.
2. The Commission received testimony and documentary evidence from Town staff,
the owner and representatives of Goguen's Last Call (the "Bar"), and all interested
persons who wished to testify or submit documents. The Commission considered all
testimony and materials submitted.
3. The Bar is located at 408 N. Santa Cruz Ave. It was granted a Conditional Use
Permit ("CUP") on or about February 1994, which allowed for the sale of alcohol for on-
site consumption without food service.
4. The approved hours of operation for the Last Call Bar are as 6:OOAM to 2:OOAM
seven (7) days per week.
5. Los Gatos Town Code section 29.20.315 provides that, after a hearing held
pursuant to Town Code section 29.20.310, the Planning Commission may revoke or
1
Attachment 6
r_odify a zoning approval if it finds that zoning approval was obtained by fraud, or if it
finds violations of conditions of approval, or if the use is exercised in a manner that is
detrimental to the public health or safety, or constitutes a nuisance.
6. Town staff recommends that the Commission revoke the CUP pursuant to Town.
Code section 29.20.315(a)(3). The recommendation was based on the following points:
a. The Bar has repeatedly permitted the sale of illegal controlled substances
(drugs).
b. The Bar has repeatedly sold or stocked for sale contaminated alcoholic
beverages.
C. The operation of the Bar has led to an inordinate and outrageious number
of calls for service.
d. The Bar has been operated as a disorderly house and has had its license to
sell alcoholic beverages revoked or suspended by the State Department of Alcoholic
Beverage Control, with a 30-day suspension served in January/February of 2006.
e. The Bar, by its operation, has attracted a substantial number of transients
who have loitered behind the premises in an area adjacent to the public parking lot,
creating an aura of a threat to personal safety, creating unsightly blight and litter,
resulting in public urination and public exposure, and creating conditions requiring
cleanup by Town crews at public expense.
7. The Planning Commission finds pursuant to Town Code section 29.20.315(a)(3)
that the Bar has so exercised its CUP as to be detrimental to the public health and safety,
and has constituted a nuisance, based on the following facts and supporting evidence:
2
a. Five (5) separate drug sales at the Bar were witnessed by undercover
narcotic agents between August 2003 and June 2004.. One of the sales involved an
employee of the Bar.
Evidence: Memorandum dated May 31, 2006, from Scott R. Seaman; Chief
of Police, to Bud Lortz, Community Development Director (Exhibit C to staff report
dated June 8, 2006); Stipulated facts by Cynthia Goguen, owner of the Bar, Findings of
Fact supporting the Decision dated December 112005, of Administrative Law Judge
Stewart A Judson, regarding the Bar's license issued by the State Department of
Alcoholic Beverage Control ("ABC") (attachment to Exhibit C to staff report dated June
8, 2006).
b. Since November 1999 to May 18, 2006, there have been 1,218 calls for
police service at the Bar. 189 of those are considered by the Police Department to be
serious. calls for service requiring, at a minimum, response by two officers. These
include, but are not limited to, robbery, assault with a deadly weapon, active fights,
domestic violence, drunk in public and narcotic sales. The majority of these types of
calls occur after 10:00 P.M. For example,, eight (8) out of 17 calls concerning battery
occurred after midnight, all six calls concerning assault with a deadly weapon occurred
after 10:45 P.M., 20 out of 30 calls concerning verbal arguments occurred after 11 P.M.,
and 14 of 15 calls concerning physical fights occurred after 11:45 P.M
While the total number of calls for Bar is exceeded by the number of calls
associated with at least one other bar in or about the Central Business District ("CBD"),
that bar, known as Mountain Charley's; is significantly larger than the Bar. In other
words, the number of calls for service at the Bar, particularly serious calls for service, are
3
excess:. e and out of proportion for a business of its size. In addition, the trend of serious
calls for service at the Bar have stayed the same or increased from year to year while
those for other establishments serving alcohol,have decreased over the same period.
Evidence: Memorandum dated May 31, 2006, from Scott R. Seaman, Chief
of Police, to Bud Lortz, Community Development Director (Exhibit C to staff report
dated June 8, 2006); Memorandum dated June 27, 2006, from Captain Alana Forrest to
Randal Tsuda, Assistant Community Development Director (Exhibit R to the desk item
dated June 28, 2006); June 14, 2006 testimony of Captain Alana Forrest to the Planning
Commission; June 28, 2006 testimony of Scott R. Seaman, Chief of Police, to the
Planning Commission.
C. Numerous inspection reports from the Santa Clara County Public Health
Department document problems at the Bar, including seven (7) occasions beginning on
December 10, 2002 and ending on March 1, 2006, when bottles of liquor were found to
be contaminated with insects or other foreign materials, low alcohol levels were detected,
violations were discovered of rules associated with food protection and storage, water
and waste ha, ing, bathroom maintenance and utensils and equipment handling. Two
(2) other rep= is concern overdue account balances and an overdue- environmental permit.
On at least tw occasions, the Bar owner personally observed and permitted dice games
to be played f . money in violation of Penal Code section 330(a).
Evide, Memorandum dated May 31, 2006, from Scott R. Seaman, Chief
of Police, to r Lortz, Community Development Director (Exhibit C to staff report
dated June 8, i); Stipulated facts by Cynthia Goguen, owner of the Bar, Findings of
Fact supportir it, Decision dated December 1, 2005, of Administrative Law Judge
4
Stewart A Judson, regarding the Bar's license issued by the ABC (attachment to Exhibit
C to staff report dated June 8, 2006).
d. On December 1, 2005, the ABC determined that cause for disciplinary
action exists under Article XX, section 22 of the California State Constitution, Business
and Professions Code section, 24200.5, subsection (a) and Business and Professions Code
section 24200, subsections (a) and (b). The ABC ordered the Bar license to be revoked,
- stayed the revocation for a period of three (3) years, and ordered that-the license be -
suspended for a total of 30 days.
Evidence: Memorandum dated May 31, 2006, from Scott R. Seaman, Chief
of Police, to Bud Lortz, Community Development Director (Exhibit C to staff report
dated June 8, 2006); Decision dated December 1, 2005, of Administrative Law Judge
Stewart AJudson, regarding the Bar's license issued by the ABC (attachment to Exhibit
C to staff report dated June 8, 2006).
e. The Bar is incompetently managed, in that the Bar lacks experienced full
time management, the Bar owner is inexperienced in operating a bar and is employed
elsewhere in a different capacity, and key personal are hired without background checks
and are not provided adequate training.
Evidence: Decision dated December 1, 2005, of Administrative Law Judge
Stewart A Judson, regarding the Bar's license issued by the ABC (attachment to Exhibit
C to staff report dated June 8, 2006).
f. The Bar did not fully and appropriately cooperated with the Police
Department. The Bar's owner questioned routine police bar checks; made baseless
complaints against police officers and police sergeants and complained about police cars
5
in the Ba. irking lot. While there was no evidence of a, formal warning to the Bar
issued by «ze Police Department, there is evidence of numerous contacts between the
Police Department regarding inappropriate and illegal activities at the Bar.
Evidence: Memorandum dated May 31, 2006, from Scott R. Seaman, Chief
of Police, to Bud Lortz, Community Development Director (Exhibit C to staff report
dated June 8, 2006); June 14, 2006 testimony of Captain Alana Forrest to the Planning
Commission; June 28, 2006 testimony of Scott R. Seaman, Chief of Police, to the
Planning Commission.
g. Noise resulting from late night operations of the Bar, including dumping
trash and bottles after midnight, disturbed nearby residents.
Evidence: June 14, 2006 testimony of Mark Forsythe to the Planning
Commission; June 14, 2006 testimony of Kevin Shams-Shirazi to the Planning
Commission.
h. The operations of the Bar have contributed to a problem of transients
congre'_ating in the area behind the Bar and adjacent businesses by allowing some
transier;,s to store property in the bar and by allowing some transients to perform odd
jobs for the Bar.
Evidence: June 14, 2006 testimony of Captain Alan Forrest to the Planning
Commission; June 28, 2006 testimony of Scott R. Seaman, Chief of Police, to the
Planning Commission.
L Pursuant to Town Code section 29.20.190, modification of the conditions
of approv.- f the Bar is essential or desirable to the public convenience or welfare in
that the ar:- lded conditions are intended to address the problems in the operations of the
6
Bar which resulted in the forgoing action against the existing CUP; the modifications of
the conditions of approval of the Bar will not impair the integrity and character of the
zone but, instead, address the negative aspects of the Bar's operations; the modifications
of the conditions of approval of the Bar will not be detrimental to public health, safety or
general welfare but, instead, address the negative aspects of the Bar's operations; and the
modifications of the conditions of approval of the Bar are in harmony with the various
elements or, objectives of the General Plan and the purposes of the Town Code; to wit,
they address the negative aspects of the Bar's operations.
Pursuant to Section IV.B of the Redevelopment Plan for the Central Los
Gatos Redevelopment Project, the modifications of the conditions of approval of the Bar
meet the use set forth in the Town's General Plan, in that the Bar will continue to operate
as a permitted commercial use in the.C-1 Neighborhood Commercial Zone.
RESOLVED:
A. Conditions of approval attached hereto and incorporated herein by this reference
as Exhibit "A" are hereby adopted as the Amended Conditions of Approval of this
permit.
B. Pursuant to Town Code section 29.20.275, any person may appeal the decision of
the Planning Commission to the Town Council by filing a written appeal with the Clerk
Department not more than ten (10) days following the adoption of this Resolution and
paying the required filling fee.
PASSED AND ADOPTED at a regular meeting of the Town Planning
Commission of the Town of Los Gatos, California held on 12`h day of July 2006 by the
following vote.
7
COM "'SION Nil' EMBERS:
AYE. BOURGEOIS, KANE, MICCICHE, O'DONNELL, QUINTANA
NA" 13: TALESFORE
AI ENT: RICE
A.. ,STAIN:
SIGNED: /s/ Philip Micciche
CHAIRMAN OF THE PLANNING
COMMISSION,
LOS GATOS, CALIFORNIA
ATTEST
/s/ Bud N. Lortz
DIRECTOR OF THE COMMUNITY DEVELOPMENT DEPARTMENT,
LOS GATOS, CALIFORNIA
8
CONDITIONS OF APPROVAL
(Updated with Planning Commission Changes)
408 N. Santa Cruz Ave.
Conditional Use Permit U-94-44
Consider the revocation of Conditional Use Permit U-9444 (Goguen's Last Call) for the
operation of a bar on property zoned C-2. APN 529-07-046
PROPERTY OWNER: Los Gatos Shopping Center, LLC
BUSINESS OWNER: Cynthia Goguen
TO T1 °ATTJFAC T IVN OF T iii; DT ;✓CT^ic vF CvMi JNl l i' DEVELOPMENT AND THE
1 V 1 I1E J 11 1
CHIEF OF POLICE:
1. PREVIOUS CONDITIONS : These conditions of approval shall supercede all previously adopted
conditions.
2. IMPLEMENTATION OF CONDITIONS: Unless otherwise stated herein, the business owner
shall implement and maintain compliance with all conditions of approval within 30 days of final
action on this Conditional Use Permit. The applicant shall submit a written document to the
Director of Community Development indicating how compliance with each condition has been
implemented.
3. NUMBER OF SEATS: The number of seats shall not exceed 45.
4. ALCOHOLIC BEVERAGES: The on-site service of alcoholic beverages is permitted.
5. HEALTH DEPARTMENT INSPECTIONS: Arrange to have the Santa Clara County
Environmental Health Department inspect the bar for contaminated. alcohol and other code
violations on a monthly basis at the bar's expense. Provide documentation of this arrangement
to the Town. With approval of Health Department, the business owner may utilize the services
of Al Sweedler to perform contamination inspections every other month (alternating with Health
Department) and shall submit the inspection logs to the Police Department quarterly.
6. SECURITY LIGHTING: Install. security lighting along the back of the bar.
7. HOURS OF OPERATION: The approved hours of operation are Sunday through Thursday from
6:00 A.M. to 11:00 P.M.; and Friday and Saturday from 6:00 A.M. to 12:00 midnight.
8. SECURITY OPERATIONS: The business owner shall submit a security plan for approval of the
Chief of Police. The plan shall include items such as the name of the security firm, hours when
security personnel are present, areas to be secured, problems to be abated, and the number of
security personnel.
9. NEIGHBORHOOD MEETING: The business owner shall hold a neighborhood a minimum of
two times per year to address impacts including noise, intoxication, urination, littering, attraction
of transients, and safety. The business owner shall send notification of the neighborhood
meeting to all property owners and occupants within 300 feet of the subject parcel. Notification
shall also be sent to the Director of Community Development and Chief of Police. Town staff
will attend the meetings.
10. MAINTENANCE OF REAR AREAS: The business owner shall implement a one-time
clean-up of the Northside Parking Lot as specified in the attachment to the letter from
Kent Washburn dated June 23, 2006, (Exhibit Q of the Planning Commission Desk Item
dated June 28, 2006.
Page 1 of 2
Exhibit A
11. MONTHLY M - ' TINGS WITH POLICE: The business owner and bar managers shall meet with
the P,.:ce Depa: _aent at the Police Department monthly to discuss operational issues, resolve
complaints, and review compliance with conditions. The Department may designate a contact
pers,•m for the business owner to deal with at the Department's discretion.
12. LC 'ERING: The business owner shall take measures to eliminate loitering behind the bar by
means such as the following: calling the Police Department, asking loiterers to leave, locking
all :rash receptacles and locking the rear door at all times. The bar shall not hold or store items
for any person who is not a customer inside the bar.
13. SECURE DUMPSTER: Lock the dumpster to prevent theft of recyclables, rummaging through
bottles for left over alcohol, etc. No dumping of trash or bottles between 7:00 p.m. and 8:000 a.m.
14. BAR MANAGER: The business owner shall employ professional bar manager(s) whose
qualifications and background shall be reviewed and approved by the Chief of Police prior to
hire. The Chief of Police shall review the bar manager's knowledge of bar operations, applicable
laws and have no criminal convictions related to drugs, alcohol or violent crimes.
TRAINING RECORDS: Provide a list of all current employees and document training of all
employees on safety, alcohol, and service topics.
LAST CHANCE AGREEMENT: The bar owner shall enter into a "Last Chance
Agreement" with the Town where the owner admits past negligent operation and
creation of a nuisance, and wherein any proven violation of any condition for a period
of three (3) years shall result in immediate revocation of CUP without any right to a
hearing or appeal (except with respect to whether or not a violation of a condition has
occurred). The agreement shall require that the business owner reimburse the Town for
staff time incurred at the Planning Commission meetings and for all attorney costs
incurred in the abatement of the nuisance. The reimbursement cost shall not exceed the
Town of Los Gatos' current application fee for a Conditional Use Permit.
17. REEVIBURSEMENT FOR FUTURE COSTS: The business owner shall annually
reimburse the Town for all documented staff time and attorney costs incurred to
implement the conditions of approval and monitor ongoing compliance with the
conditions. The reimbursement cost shall not exceed the Town of Los Gatos' current
application fee for a Conditional Use Permit. The business.owner shall reimburse the
Town within 30 days of delivery of invoice.
18. FUTURE NUISANCES: Should future operation of the bar create a nuisance situation,
whether any conditions are violated or not, Town shall have the right to undertake a
proceeding to revoke the CUP and may use any past evidence of negligent operation or
nuisances in the future proceeding (including evidence presented in this revocation
proceeding).
19. ALCOHOL POLICY: The business owner shall implement the following requirements of the
Town's Alcohol Policy:
a. This establishment shall use an employee training manual that addresses alcoholic
beverage service consistent with the standards of the California Restaurant, Association.
b.. The licensed operator shall have and shall actively promote a designated driver program
such as complimentary non-alcoholic beverages for designated drivers.
c. Taxicab telephone numbers shall be posted in a visible location.
N:0EV\C0NDITNM006\408 NSC PC Condition 062806.wpd
Page 2 of 2
Page 1 of 2
Randal Tsuda - Last Call
From: "Norm Matteoni"
To:
Date: 08/08/2006 7:09 PM
Subject: Last Call
CC:
Diane
I am representing Jim Zanardi in the above appeal by the Last Call.
As I get into this matter, I am struck by the deflections utilized by the bar owner's representatives-the owner is a
woman who had the bar thrust upon her with her husband's death and knew nothing of the problems.
This immediately suggests improper oversight and experience in running a good bar. But most importantly, an
owner must take responsibility. What happened in the last few years with mounting problems and police calls?
Nothing. Well actually, a belligerence to the police, never cooperation. But it is the police who are criticized for
not reaching out to her with fix-it solutions. Fix-it solutions require cooperation; the owner must take initiative
where there are problems.
A second major problem in the mis-operation of this bar is evidenced by the number of calls for police service.
First, there are numerous instances of documented problems. Second, the Los Gatos Police have four officers on
duty for night service to protect the entire Town. Calls to the Last Call often require 2-3 officers at one time. This
stretches the Town's police service. Third, the hours that this happens are late, post 10 pm, and to closing, when
patrons have more time to drink. The Planning Commission sought to minimize these problems by cutting back
on the hours.
It is my understanding that the hours restriction (the argument is that the "Last Call" cannot function without the
ability to pour the last round of drinks) is the key basis for the appeal.
I do understand that the appeal is a hearing de novo and this reopens the issue of revocation.
It is not difficult to find that this bar far exceeds any other Los Gatos Bar in police problems and lack of community
responsibility.
Thank you,
Norm Matteoni
Mameoni
a4chtmn 01 bughlin,
A, V Y E R j
NORMAN MATTEONI
848 The Alameda
San Jose, California 95126
T.• (408) 293-430b
F: (408) 293-4004
CONFIDENTIALITY NOTICE: This communication constitutes an electronic communication within the meaning of the Electronic
Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this
message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attornev work
product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information
Attachment
file://CADocuments and Settings\rtsuda\Local Settings\Temp\XPgrpwise\44D98056TOW... 08/09/2006
Page 2 of 2
attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at (408) 293-4300, and
destroy the original transmission and its attachments without reading or saving in any matter.
file://C:\Documents and SettingArtsuda\Local Settings\Temp\XPgrpwise\44D98056TOW... 08/09/2006
Matteoni
O'Laughlin
&Hechtman
L A W Y E R S
Norman L. Maue-oni
Peggy M. O'Laug111iu
Bradley 14. Matteoni,
Barton G. liechtman
Gem Houlihan
RECEIVED
AUG 1 p 2006
August 8, 2006 TOWN OF LOS GATOS
. PLANNING DIVISION
Mr: Bud N. Lortz, AICP
Director.of Community Development
Town of Los Gatos
P.O. Box 949
Los Gatos, CA 95031
Re: Last Call Appeal; Hearing Scheduled before Town Council'
August 2f, 2006
Dear Mr. Lortz:
I representthe landlord - Los Gatos Shopping Center, LLC, of the
shopping center in which the Last Call is located. I am aware of the appeal by
the owner of the Bar.
In a review of the hearings before the Planning Commission, I
noted that the attorney for the Bar owner made the argument that'the judge's
decision in the landlord's unlawful detaineractign in December, 2005, supported
non-revocation. '
I reviewed the Memorandum of Decision and other pleadings in
that case, as well as talked to the attorney for Mr. Zanardi. That unlawful
detainer action was decided solely on one issue, that is, whether the 30-day
suspension by-ABC of the liquor license constituted a breach of the lease. The
court stated that, under the circumstances of the terms of the suspension and
the forfeiture clause in the lease, it did not.
TheTown's grounds forrevocation and/or modification includethe
ABC suspension of the Bar's license as only one factor that the Town must
consider in this matter. Mr. Zanardi's action was pursuant to the terms of a
lease contract.
I 848 The Alameda
San Jose, CA 95126
ph. 408.293.4300
lax. 408.293.4004 Attachment 8
i www.nlalleoni.com.
Mr. Bud N. Lortz, AICP August 8, 2006
Page 2
Moreover, I submit that the Town's jurisdiction isbroaderthanthatofthe'ABC
in this instance; it must consider the operation and conduct of the Bar under the standards
01 the Town's zoning of gel lel aI l nuisance, police c she Tows t Calil
ro and
other code violations.
Please include this letter with the Staff Report to the Council.
Very my ,
NORMANEM:sd
cc: Orry Korb, Town Attorney
Jim Zanardi
RUG-15-2006 14-:55
FROM: TO:3547593 P.3/5
Matteoni
O'Laughlin
RECEIVED
Hechtman
AUG 15 2006
L A W Y E R S
TOWN OF LOS GATOS
PLANNING DIVISION
Nnrtnan E. Matteoni
AUgUSt 15, 2006
Peggy M. O'Laughlin
Bradley Ni. Matteoni
Barton C. Hechtinan
Gerry Houlihan
Mayor and Members of the Town Council
Town of Los Gatos
P.O. Box 949
Los Gatos, CA,95031
Re: Appeal of The Last Call, Council Agenda (812112006)
Dear Honorable Mayor and Members of the Council:
I represent the Shopping Center owner, Jim Zanardi, where The
Last Call is located.
Although: Mr. Zanardi did not initiate this appeal$ he does
understand that the appeal is de novo. He asks the Council to revoke the use
permit based on the evidence in the record and to be presented at the Council
hearing. In the alternative, the Bar, Owner's appeal of the restrictions imposed
by the Planning Commission should be denied.
CONDITIONS OF MODIFICATION
In regard to the Planning Commission's decision, the hours of
operation are particularly crucial. A review of the Police Department record of
calls indicates that physical assaults, noise complaints and other illegal activities
mostly take place during the later hours. The Commission recommended an
11:00 p.m. closing Sunday through Thursday and a 12:00 midnight closing
Friday and Saturday nights. I am. informed by Town Staff that this is the primary,
and may be the only, condition being appealed. Given the hours during which
most offenses occur, this is a condition that the bar should.embrace to prove it
is capable of proper operation and sensitive to its neighbors.
Equally important is Condition No. 8 - security operations, imposed
by the Commission. The Police Department has spent great amounts of time
responding to calls from this bar. The purpose of the security condition is to
' 848 The Alameda
San Jose. CA
95126
I
ph. 408.293.4300
I tax. 408.293,4004
- ' • wimmatteoni.rom Attachment 9
AUG-15-2006 14:56 FROM:
Mayor and Members of the Town Council
T0: 3547593 P. 4/5
August 15, 2006
Page 2
have the owner bear some of thls responsibility by hiring approved security personnel
trained to avoid problems; This condition, if it stays in place, should be tightened to clearly
require retention of security personnel as approved by the police; and there should be an
ongoing program for that security personnel to work with your police.
Obviously, the owner whose business benefits from this additional security
should be required to reimburse the Town for costs of implementing the conditions of
modification and monitoring the ongoing compliance with the conditions., Because the bar
owner did not show the ability to hire professional bar managers with appropriate
qualifications and background, the Commission had no choice but to place this burden of
review and approval of bar managers on the Chief of Police.
The conditions, although intended to minimize police response, actually have
the Police Department more involved in the operation of The Last Call.
REVOCATION
When you consider the conditions from this perspective, the real solution is
to revoke the use permit.. The problems have been just too great with no real solutions.
The problems have been continual. They have been with the knowledge of
the owner. Despite her attomey saying that she was not aware, there are incidents in the
police report where she was one of the parties to altercation in 2002 and she initiated a call
to 911 in 2004, where there was another customer threatening the life of a customer, as
well as the bar owner.
There has been no attempt at good faith on the bar owner's part since the
Planning Commission action, by coming to the Town and asking for a meeting with the
Police Department to begin implementation of these conditions. Rather the approach has
been one of ignoring the conditions and filing the appeal.
At the same time, when you read the transcripts of the hearings before the
Commission, there were times when the lawyer for the bar owner indicated restrictions
were appropriate and would assist this bar owner to run a better business in the
community. The' Commission was led to believe the new restrictions were acceptable.
AUG-15-2006 14.:56 FROM: T0:3547593 P.5/5
Mayor and Members of the Town Council August 15, 2006
Page 3
. The bar's owner seeks to turn the tables on the Police Department, because
the Department did not give this bar owner more warnings of problems. In my client's view,
when someone owns a bar in a local community, that person has a responsibility to that
community. If there are problems, the owner should seek out the police in attempting to
work to solutions before problems escalate. This owner claims to have been ignorant of
the problems. If true, that is still no excuse. A business owner is responsible for the
operation of the business. But, here the problems were so chronic and blatant, no.
reasonable owner can claim ignorance.
The lawyer for the bar owner attempts to cast Jim Zanardi as the villain and
orchestrating the entire revocation proceedings because he failed to prevail in an unlawful
detainer lawsuit against The Last Call. I have long known this Council and prior Councils
of the Town as highly independent and not susceptible to doing the bidding of any
particular person in Town. Town Staff works for the Town, not an individual business
owner. The landlord may be capable of living with the problems of The Last Call, but he
does not think it is wise to do so, either for the Shopping Center or the Town.
Thus, he asks the Council to revoke the use permit. The Council needs to
very carefully consider the report of the Police Chief and the numerous citations/police
reports that have been issued over the' last several years, together with the health
problems that have been identified, and the drug busts that took place at The Last Call.
Finally, the Council needs to apply the Policy Regulating the Consumption
and Service of Alcoholic Beverages. Where there has been a history of abuse, this bar
owner cannot excuse itself with having been in business before the policy was adopted.
The very. fact that a revocation action is contemplated places The Last Call within the
policy.
Ve pAfa"ours
NORMAN MATTEON
NEM:sd
cc: , Debra Figone, Town Manager
Bud Lortz, Director of Community Development
Jim Zanardi
KENT G. WASHBURN
ATTORNEY AT LAW
VOICE: (931) 458-9777
FAX- (831) 459.6129
kentthrnehhurn*nm jimermcom
123 JQWC11 Street
SANTA CRUZ. CALIFONIA. 95t1611
Mayor Diane McNutt
Town of Los Gatos
Los Gatos, Ca. 95030
August 16, 2006
Re: Goguen's Last Call/August 21, 2006 agenda
Respected Mayor and Council Members,
YOR & TOWN COU XIR
T am very reluctant to introduce myself to you and the Town Council (actually I had a passing
acquaintance with Council member Spector in law school years ago) in this way, but I must strongly
and categorically protest a denial of due process and equal protection of the law that is being foisted on
my client Goguen's Last Call by Town staff.
Notice
When a government body seeks to take away substantial; vested rights such as a valid
conditional use permit, the holder of the permit has a constitutional right to notice of any public
hearing affecting the rights tinder that permit. The notice must be sufficiently in advance to enable the
pen-nit holder to respond to the showing that its opposition - in this case the Town's own staff - seeks
to make against her.
Your star has essentially ailed to meet this requirement of the law. The appeal of the
Planning Commission's decision was filed on July 24, 2006 with the express request from Cynthia
Goguen, the appellant, to Jackie Rose, the staff member who accepted the appeal form and checks, that
the hearing be set as late in the 56 day period as possible because of our need to access and respond to
the police report evidence that will be the meat of the case against my client. i confirmed this with Ms.
Rose by telephone on Monday, August 14, 2006. She replied to Ms. Goguen that she did not set the
hearing dates herself and the Planning Department or the Town Clerk would notify us when they did.
Staff failed to do so. Instead the only notice we were given was a pro forma, mass mailing .
that arrived at the Last Call with the normal load of junk mail on Wednesday, August 9 and was almost
discarded with the .rest before a vigilant employee ..noticed what it was and called it to Ms. Goguen's
attention. I enclose a copy-for your file.
This is a breach of the Town's fundamental constitutional duty to give its citizens who have
substantial vested rights sufficient advance notice in order to prepare an adequate defense against the
msembled. might of government. The failure to do so is a denial of those rights, especially where staff
declined to give my client the appeal date when she tiled and promised she would be notified. Any
argument by staff that the mass mailing card was sufficient is transparently urt_fai.r and is equivalent to
suggesting that the person whose substantial vested rights are at stake is entitled to no more notice than
the average disinterested citizen who gets such a mailer.
Attachment 10
Content
71-. :cond category of due process failure by Town staff has to do with the content of what
has - or m. -precisely has not -been furnished to my client. Let me specify two examples of it.
The first concern is as to the content of the staff materials that will be presented to you in
advance of the public hearing. I am informed by Ms. Rose that those materials will be copied and
distributed to you on Thursday evening and used by the Council to prepare for the hearing. In effect
the materials stag submits to your agenda packet will constitute an accusation against my client.
As of this writing none of those materials have been offered or madc available to my client.
We face the deadline for presenting you with our reply to the accusations in a partial vacuum because
we do not know just what our accusers will be saying to you in these written materials. By staff s
failure to make such materials available to us in advance so that we may use them in crafting our reply,
wc. are being placed at an unfair disadvantage. It is a daunting enough task to oppose an entire Town
government without being placed at the further disadvantage of the Town staff putting its views and
supporting materials in the packet in advance to educate the Council in advance while the same are
being withheld from us. If this were some neighborhood group challenging my client it would be
entirely different. Because it is the very government body that proposes to take away my client's
substantial. vested rights that is making the accusation, due process requires that we be given access to
the supporting material staff proposes to present in your agenda packet far enough in advance to be
able to prepare a reply for inclusion there. The denial of that opportunity gives staff an unfair
advantage in shaping the Council's thinking before the hearing ever begins.
J attempted to sort this issue out with staff beginning last Thursday when I first learned of the
hearing date. 1 got back what T would term a vague and uncooperative reply from the outside
"municipal law specialist" who has been hired at taxpayer expense to advise staff. In essence he told
us that in Ns hearing de novo the staff may choose to present anything or nothing that was presented
to the plat-: mg Commission, may bring forward new materials or arguments, and the only items we
would be t,.ven in advance was a sheaf of redacted police reports kiarxd-selected by the police.
V :ave repeatedly demanded in writing, and hereby demand again, full access to all the police
reports ov a question of whether or not Goguen's is being treated fairly and equally by your staff, in
particular police department, as it treats other, similarly-situated establishments. It is part of my
client's de: ;se to the charges before you that as a female bar owner she is not being afforded equal
treatment o 1_he law. She cannot counter the police chief's testimony on this point, where he alleges
that the pol;-_e reports show her bar is so much worse than any other and she is being treated equally
with others, f we are denied access to a) all the police reports for the Last Call and b) all the police
reports for ,';ie same period for other establishments in Los Gatos which we claim are receiving better
treatment. F cfusal announts to a denial of not only due process, but also equal protection of the laws.
We therefore demand postponement of the hearing until at least September S and copies of all reports
sufficiently it advance of any continued hearing date to allow us to present a meaningful defcnse.
Very truly y urs,
I W
Town Council
I10 E Main Street
PO Box 949
Los Gatos, CA 95031
PUBLIC HEARING NOTICE
wh F
Ml 8
A
,
OCCUPANT
408 N SANTA CRUZ AVE
LOS GATOS CA 95030 5321
3 ~J-+1~ -5•~ I1tf)1,)1411111,11ItOfI)1111)1) Ill 11111111111ft1~1~~11!1t~ll
KENT G. WASHBURN
ATTORNEY AT LAW
VOICE: (831) 468-9777
VAX; (931) 45!"1:7
kxn tL.wayDDur~.(a~eum pu~rvc.eua
I D JVWW1 Street
SANTA CRUZ, CALINONIA. 95060
August 17, 2006 RECEIVED
Mr. Randy Tsuda
Assistant Planning Director AUG 17 2006
Town of Los Gatos
I10 L. Main St. TOWN OF LOS GATOS
Los Gatos, Ca. 95030 PLANNING DIVISION
Re: due process issues/tor inclusion with Town Council package fax only, 12 noon
Dear Mr. Tsu'da:
The purpose of this letter is to confirm our telephone conversation of this morning at about
10;10 a.m. and the follow up fax you sent. Please include this with the Council's materials.
1. Planning Commission materials - You assured me that everything submitted to the
Planning Commission by my client at each and any stage of the process will be automatically included
in the packet each Council member receives. Thank you. That saves a lot of unnecessary copying.
2. Star report --1 have been assured by you and other staff that i wi11 receive it and all
accompanying materials by e-mail as soon as it is available. I have heard various estimates of this
happening this afternoon, this evening, or tomorrow morning. This handicaps me from making an
effective rebuttal in behalf of my client. It strongly suggests that if the staff cannot prepare its own
presentation in time for us to have a chance to digest it, this matter is being nlshed forward too fast for
my client to have a reasonable opportunity to respond.
3. Mailed notice - In a letter to the mayor yesterday I charged that my client had not been
given adegi)ate advance notice of the hearing. glad the bulk mailing been our only notice i would
stand by shat charge. You have helpfully faxed me this morning the Town's proof of service, a copy of
what was sent, and the return receipt. Mystery solved. My client does recall getting, this document
in the mail, and thought it was just a receipt for her appeal. She failed to notice the heating date had
been filled in at the bottom, and therefore didn't calendar it or tell me. I atn satisfied that this mailed
notice was adequate and I apologize for being ignorant of what had really happened. We continue to
stand by the rest of our due process and equal protection contentions that the hearing is being held too
quickly for us to obtain the necessary documents and respond in order to prove that my client is being
treated unfairly and unequally.
Very truly yours,
"faw"tr
Kent G. Washburn
Attachment 11
TO/T0 39vd N~JMHSVMUNEIA LZT969OT68 TT:TT 900Z/LT/80