13 Addendum - 408 N. Santa Cruz AvetowN o,MEETING DATE: 8/21/06
ITEM NO. 13
ADDENDUM
!ps GAjpS COUNCIL AGENDA REPORT
DATE: August 15, 2006
TO: MAYOR AND TOWN COUNCIL
FROM: DEBRA J. FIGONE, TOWN MANAGER
SUBJECT: CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION
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.
REMARK:
The attached information was received after the staff report was completed.
Attachments:
1.-11. Previously Submitted
12. Fax from Kent G. Washburn dated August 17, 2006 (6 pages).
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 c
PREPARED BY: BUD N. LORTZ
DIRECTOR OF COMMUNITY DEVELOPMENT
Reviewed by: 9, Assistant Town Manager ,tQLTown Attorney
Clerk Administrator Finance e/ Community Development
KENT G. WASI[iBURN
ATTORNEY AT LAW
VOICE: (831) 458-9777
BAX: (831) 4594127
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123 JCWC11 strixt
SANTA CRUZ, CA41b'UN1A. 9NO60
Town Council
Town of Los Gatos
110 E. Main St.
'Los Gatos, Ca. 95030
Re_ Goguen's Last Cail
Respected Mayor and Council:
August 17, 2006
by fax L 4:00 p.m.
Due to the relatively short notice on which your staff set this matter for hearing 1 was relieved
to learn this morning by telephone from Assistant Director of Planning Randy Tsuda that everything
submitted on behalf of my client to the Planning Commission will be automatically included in the
agenda packet you receive in preparation for Monday evening's hearing. That saves us a lot of excess
copying and you the annoyance of having to wade through unnecessary duplicates.
In this letter I will try to touch on arguments previously made in a way that does not waste your
time and instead allows us all to focus on the real issues before you. I will also make some new
arguments in response to what I understand the police and planning staff intend to do. As of this
writing, despite telephone calls and letters asking for their written presentation, l have nothing, so I ain
reduced to leaking educated guesses.
Police Power
It has been settled for decades in California law that a local legislative body such as yours has
broad powers to exercise discretion in land use decision making, discretion which courts are reluctant
to disturb. They Ilse something termed the "substantial evidence test" and uphold the government
body's decision if there is any substantial evidence in the record to support it.
. Substantial Vested Rights
The holder of a "substantial vested right," however, which a; conditional use permit is, has the
right to more deferential treatment. Courts will not just defer to a Council decision, but will instead
apply the "independent judgment test" to weigh all the evidence and see if a fair result has been
reached. Little if any deference to the government decision maker can be expected.
I point this out because I feel that your police and planning Itdff have set this case up for you as
if it were a "substantial evidence test" matter. It isn't. My client holds a long-standing use permit
from the Town as has made a very large investment in her business and the license. The law entitles
Attachment 12
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her to keep it until the Town can show that the weight of the evidence (as a Superior Court would
judge the matter using the above-mentioned independent j udgment test) shows that she has violated
the terms of the permit and created a public nuisance.
The main point of this letter is to show that while a biased interpretation of the evidence might
yield some fractional support for the staff's position, an objective, independent judgment review of the
evidence makes it clear that nay client has not violated her permit or created a nuisance.
Existing Use Permit
We are ail the victims here, my client most especially, of an impermissibly vague, and therefore
legally inadequate, existing use permit. it contains a handful of specific conditions ail of which my
client meets and has neut. One - the requirement of providing security if the police so require - she
has done for years at peak hours even though the police have never instructed her to-do so! -In this
regard she has gone above and beyond what the use permit requires.
A fair and objective reading of sectioil 1 a. of the use permit, a reading which a judge would
surely employ, is that to the extent it is perceived there is aproblem with recurrent alcohol-related
incidents, the Chief of Police must communicate the same to the permit holder, give the owner a
chance to resolve them, and then impose an increased security requirement if the owner's efforts do
not resolve the problem. In response to direct questioning by the Planning Conunission Chief Seaman
admitted that this had never been done and had never been attempted.
Goguiens' position
You will note from review of the Planning Commission record that we have always taken the
position that my client must operate responsibly. We do not believe that she or anyone else operating
under an alcohol license can ask or expect anything else, in loos Gatos or anyplace else.
Despite our firm contention that there had been no showing ofjustification bor a new set of
permit conditions, it was our position at the Commission level that we would acquiesce in every
suggestion made except one: a reduction of late night business hours. 'We even agreed to take a careful
look at the balance of receipts between late and early hours, but that check revealed that she would
gradually go out of business on reduced hours. The existing permit allows my client to remain open
until 2:00 a.m., and with a name like the Fast Call and a two decade history as the local place for
people to get a late nightcap, the only way it can survive is with.that market iuehe.
Town alcohol policy
One of the constraints with which niy client and 1 and the Council must grapple in seeking a
reasonable resolution of this matter without a waste of time and expeaise is the letter and spirit of the
Town's alcohol policy. As it was construed by your counsel at the Planning Commission level, I
believe, any change in the conditions of the use permit would trigger an automatic reduction in the
operating hours. Some of the Commissioners seemed to feel a sense. of constraint to literally follow
this interpretation at their level and leave the possibility of a different interpretation or application to
your discretion.
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Goguuen's recommendation
Our recommendation for resolving this problem and living the Town a clear-cut and mutually
agreed avenue of effective enforcement is through conditions 1 b and c of the existing use permit.
These terms in my opinion give room for the police, in conj unction with their express duties to require
and oversee employee training and performance, to impose the kind of conditions of operation that the
Planning Commission considered reasonable. We would propose to sign agreeing to operate by those
conditions in substantially the form the Commission approved except for the earlier closing.
Coupled with that we propose an express enforcement agreement with the Town stating that a
material failure; by Goguen's to meet the objective criteria in such standards would be grounds for
revocation. It has been called by various terms, but people seemed to think that the title "last chance
agreement for the Last Call" had a certain cachet.
- - - - --The third and final main featureof our proposal would be_th€tt-you continue this- hearing open
for a time certain, whether shorter or longer, to see if Goguen's actually is performing to the defined
standards. If it does it should survive; if it doesn't it should end.
We proposed this set of terms not because we think my client guilty or because we believed
that a court would impose it against Goguens' will. We proposed it demonstrate as clearly as we could
while staying open for business that this is a responsible operator willing to be held to account so long
as there are objective criteria.
Objective analysis shows planning staff and police are giving biased and false testimony.
The alternative to giving Gog wen's a chance to perform under its existing permit and be judged
by clear, fair and objective analysis of the evidence according to clearly stated and objective criteria
will be to engage in a very pointed and unpleasant inquiry into not only the misinterpretation and
falsification of the evidence against Goguen's, but also the likely reasons why.
I feel constrained not to put that latter contention as tot he underlying reasons in writing at this
time because I think it will be such a unpleasant and difficult inquiry to conduct. Obviously we will so
state at the hearing if need be.
1 prefer instead to point out the glaring holes in the substance and procedure of what the Town
police and planning staff members are doing to Goguen's by means of police reports.
1. Sheer number of supposed calls- At the Commission level both planners and police
officers repeatedly sought to use the sheer member of supposed calls to the Last Call as evidence of
wrongdoing and the existence of a nuisance. I and others pointed out some of the absurdities in such
contentions and demanded access to the reports to see what they really said. Some commissioners
seemed to realize that there was a certain amount of staff gulling behind the waving around of those
numbers;. others didn't and seemed to have been so prejudiced by it:we could not overcome the
prejudice without access to the reports to demonstrate that they are almost all innocuous and show
little if any evidence of any fault by Goguen's.
Since the transcripts and the documentary record of the Commission process is being
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transmitted to you at this time; the same overstated, highly prejudicial figures necessarily will be part
of the evidence you consider. We are entitled to and demand once again the opportunity to obtain
copies of these reports, redacted if necessary to protect privacy, etc, so as to prove my client's
innocence. We are more than willing do the work to analyze the reports and present the written,results
to you so that you can see the police reports show that Goguen's is not now a nuisance.
2. The true question is this: Is Goguen's NOW a nuisance or in violation of the permit?
Stag and the landlord or his favorite witnesses will want to try to distract you into thinking
about and deciding a question that is not really before you. That question would be this: did Goguen's
or its patrons ever make any mistakes in the last six years'?
If they can distract you into focusing.or~ that question then they can hope for an adverse result.
If instead you focus on the real and only question lawfully before you, "Is Goguen's now in violation
- - - - or-now a nuisance?," the decision must be far us. -
I focus on the present because ifa nuisance ever existed, and we do not believe it ever did
because until the landlord, Mr. Zanardi, lost his eviction in March and had to pay the better part of ten
thousand dollars in attorneys fees, there was never the slightest peep from any representative of the
Towle whatsoever that there might be a problem, let alone of nuisance proportions, a nuisance that has
already been cured and no longer exists cannot form the basis for a revocation. You must focus on the
present and, we would agree, on any unbroken chain of events that stretches form the past to the
present.
In doing so, however, you should be guided by the express testimony of Captain Alana Forrest
in the June 14 session of the Planning Commission. 'There she testified at about page ten of the
transcript that a reduction of serious incidents at others bars in response to police dernwids was
perfectly OK with the police. In order to avoid a charge of unlawful discrimination against my client
as a woman bar owner, therefore the same standard of working for reduction rather than prosecuting as
a nuisance, must be applied.
3. Captain Forrest falsely testified that Goguen's incidents have increased or stayed level
Staff tells me you will be receiving a small selection of police reports that the chief will be
relying on to advocate for revocation on August 21. We have been given such a set of reports. By
Monday I will have a chart to show you on the projector that dissects these reports in detail.
For the moment I want to focus on just one feature of what these reports reveal in stark contrast
to Captain Forrest's allegations. At pages 8 to 11 of the June 14 transcript you can read that she told
the Commission that unlike other bars which were worthy of police, cooperation and fair treatment
because in response to police contacts they reduce the level of service calls, Goguen's was on track for
a hypothetical total of 24 serious incidents for 2006,
If that is true, and the reports produced are the ones which suplxisedly form the basis for the
Chief's conclusion that Goguen's is a presently existing nuisance, why have the police produced only
two reports for all of 2006 to elate! And why do those two reports show no fault on the part of the
Last Call or its employees?
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These are of course rhetorical questions. The reason that no other reports have been produced
and the two produced are not damning to the Last Call is because the evidence does not back up what
Captain Forrest told the Planning Commission.
4. The police admit to making no effort to a) communicate orb) work with Goguen's.
Let's look at another startling fact: it took direct admonitions to other bar ownens and repeated
meetings between the police and their staffs to achieve even the gradual reduction in incidents which
the police chief and captain subjectively -find satisfactory in those bars' numbers. In response to
repeated question- from the Commission the police admitted to not even trying this successful program
with Goguen's because they didn't think my client would "cooperate." This is unequal treatment.
The startling fact. even in the absence of any police effort or ccooperatiom whatsoever in a call -
reduction program for Goguen's, there has been a night and day difference in serious call figures and
the contents of the reports as to Goguen's since my client learned of the surreptitious drug sales in
2004. New vigilance on her part, better personnel and security measures, and employee training have
markedly reduced the number and magnitude of calls at Goguen's.
I will present you with a chart on Monday evening that shows the line of demarcation in 2004
and documents for you that the last two years of Last Cal l operations have more than met the standards
that the police apply to other establishments. The only possible reason for misstating the evidence as
to my client and applying a different standard is the kind of bias 1 am reluctant to publicly charge. if .
you look at the evidence objectively instead of simply rubber stamping your planning, and law
enforcement staff, T respectfully submit the only objective conclusion, the conclusion that a Superior
Court applying the "independent judgment test" would reach, is that Goguen's is not now a nuisance.
-5. There is a lot more evidence of planning and police bias.
a. Captain Forrest testified with no evidehtiary support whatsoever to the absurd belies' that
local teenagers were asking transients to illegally buy them high priced single drinks fiom
Goguen's instead of in bulk at the liquor store next door. There is not one single shred of
evidence that this ever happened or that the teens of Los Gatos are that careless with money.
b. The- staff seems eager to blame Goguen's for broader social problems that the Town has
totally apart from Goguen's and which have no logical nexus with Goguen's.
i. Litter in the nearby Town parkin; lot. The evidence showed that it was Safeway
and fast food litter or alcohol containers. Goguen's sells no food and no alcohol
for takeout. The staff photos showed a neat, orderly trash are behind Goguen's.
ii. Lack of a coherent and effective policy for dealing with mentally ill transients.
We all know, and the evidence all shows, that these people live in the bushes by
the trail and go to Safeway to shop and or buy alcohol, not Goguen's. We also
all know that they adversely affect businesses in the nicer part of downtown Los
Gatos on the other side of Highway 9 and are not allowed to congregate there.
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iii. Lack of lighting in the Town parking lot behind Goguen's. By contrast my
client immediately after the Commission hearing had a new security light put on
the back of her premises. I do not know if the Town has done anything yet.
iv. Staff blames public urination by the transients in the Town parking lot on
Goguen's while claiming that they are Gogucn's customers. The first 4surdity
in this charge is that the transients smell and behave badly and drive away other
customers. They are not welcome in the Last Call. And if they were they would
be allowed to make their last toilet calls there and there would be no public
urination problem. The public urination is no fault of Goguea's.
Conclusion
Perhaps that is a good note on which to wrap up this discussion. We have not been given
access by the Town officials to the evidence that will fully exonerate my client despite the ostensible
use of and reference to that very evidence by the police to justify their failure to work with Goguen's.
We deserve a level playing field. We are willing to help define and then be held to criteria as
strict and clear as, if not more than, the criteria other Los Gatos establishments are required to meet.
We are not asking for any exemption from the rule of law and good sense. Instead we are
petitioniag you to apply law and good sense to this situation instead ol'the biased and contrived
arguments that are being presented against us.
There is a certain cyaicism about the exercise of government power embodied in sayings like
"you can't fight City Hall." We don't want to tight it or to escape the legitimate exercise of Town
Hall power. We are standing up Jbr the kind of equal and unbiased, treatment that vindicates the
powers you hold and increases public confidence that both civil and criminal law enforcement in this
Town are fair and unbiased. By making a fair analysis of the facts and treating Goguen's as everyone
else is treated you will only enhance and solidify the proper rule of law in your Town.
Very truly yours,
t~~" V y
Kent G Washburn
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