06 Desk Item 2 - 408 N. Santa Cruz Ave~pW N OF
~os••~ajos
DATE:
TO:
FROM:
SUBJECT:
REMARKS:
Attachment 18 (noted below) was received after the report was completed.
Attachments:
Previously Submitted: (Copies are available for review in the Clerk Administrator's Office)
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
PREPARED BY: BUD N. LORTZ~
COUNCIL AGENDA REPORT
September 5, 2006
MAYOR AND TOWN COUNCIL
DEBRA J. FIGONE, TOWN MANAGER
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.
MEETING DATE: 9/5/06
ITEM NO:
DESK ITEM 2 (
DIRECTOR OF COMMUNITY DEVELOPMENT
Reviewed by: _V~) Assistant Town Managerr-h own Attorney
Clerk Administrator Finance Community Development
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: APPEAL OF 408 N. SANTA CRUZ AVENUE.
September 5, 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
5. Appeal of Planning Commission Decision Form filed July 24, 2006 and Proof of
Service-(Certified-Mail-and-ReturnReceipt-Requested for_ms)-dated_Jul_y_26,-20.0-6.__---_-_
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)
12. Fax from Kent G. Washburn received August 17, 2006 (6 pages)
13. Fax from Kent G. Washburn received August 18, 2006 (1 page)
14. Calls for Service Spreadsheet from Police Department (3 pages)
15. Chart of Seating at Bars (1 page)
16. Chart of Total Calls per Seat (1 page)
17. Email from Paul Dubois received August 31, 2006 (2 pages)
Attached:
18. Fax from Kent. G. Washburn received September 5, 2006 (4 pages)
BNL:mdc
N:\DEV\CNCLRPTS\2006\408 NSC TC 090506.doc
XrENT G. WASIOURN
ATTORNr,,y AT LAW
VOICii (931) 458.9777 1ccn1Fvv11elvbu1-11011cm11 pwnI-Ve,e0111 I23 Jewell Strcct
FAX; (831) 459-6 127 SANTA (:12117„ CALIFON IA, 95060
Septenaber 5, 2006
The i.lon. Diane McNutt, Mayor
Town of Los Gatos
1, 0 C. Main St.
Los Gatos, Ca. 950:10
-by-fax-al:-4:45-p-~n--- - - -
llespected Mayor and Council:
The most recent staff; report was e-mailed to me late Thursday, and because my Friday was
already booked and the dep-,Oment was closed for the long weekend., this morning was my first chance
to look through. the police reports carefully in light of the bran.. new "calls per seat" ratioti.al.c. Before
proceeding to that analysis please let nac briefly repeat what I believe lies behind and before us.
Background
Someone has influenced-the Town staff to look un:.Cavorably and unfairly at The Last Call. We
believe it was Mr. 7anardi., the owner of the center. Once his efforts to u.se the ABC licensing process
(at no charge to hhai,self) failed to drive >.ny client out o:f business, be tried to evict her.. That backfired.
and he was ordered by the court to pay a large attorneys fees bill.
Only then was the first word ever spoken. to The Last Call by your staff-. It was not a request or
warning to improve oaf cei twin issues, but rather an adversarial annou»cemen.t that the 'town would
proceed to revocation, no questions asked, and announcing that d.ecisio» by quoting alna,ost verbatim
:from arguments unsuccessfully .made by .Mr.. 7anardi in the Superior Court. We imtn.ediately asked.
for the backup information, and after more than three months o:l" waiting finally have gained some
limited access.
Legal standards
The holder of a coi.iditional use permit has a. substantial vested right to continue her operations,
When a local government votes to revoke it, the courts will not just defer to the goverjamerlt decision.
Instead the judge must use his/her indcl)endc>nl.jt'dginent to weigh up the evidence and see if the
revocation or new conditions are justified. This is an expensive process,
Complete compliance with actual use permit
The ostensible purpose of a 11Sc permit is to give the peri-nittee and the govern.naCnt ob~jectlve
standards to measure by. Gogeun's is not in violation of a single condition oi' its use perin.it.
Attachment 18
A waste of the "T'own's money
Mr, 7anardi clearly wants to do something else with his land. He nazide at least one exploratory
attempt to seek Town approval to do so in the past. Flo cannot go forward to clo so freely, however,
without: getting his present tenants out ofthe way. Instead of buying out the lease or bearing the legal
costs himself, hC has somehow seemingly prevailed on Town staff to cause the taXpa.yers o;f.Los Gatos
to pay the costfor him. (Your Town attorney recently recomm.ended that we contact M.r.. 7anardi and
his attorney, Norm Mattconi, about settling; we did so, but they declined to participate,)
This is a waste of money for several reasons:
1. The Last Cal) is by no means perfect, b►at it is not now a. nuisance.
2. The Last Call is living, and willing to exist in the future, by -ill reasonable conditionsas
demonstrated-inn our of;ers to the Planning Co.~io.aiiigsion and to tlvs Council on all issues.
3. The evidence does not support sta:ff's contentions. .
Staff makes five wrong contentious
The August 15 starf'report wakes five conten tions which lack solid evidentiary support:
1. Drug sales.
2. Health department violations.
3. Calls for police response put too great a, burden on Town resources.
4. "Disordely house" allegations (seei»ing.ly a conclusory label, not a substantive charge.)
5. Attraction of transients
The balance of this letter and the attachments is fttte these contentions
Drug sales issue
This question has come Mote two judges already, the Administrative .Law Judge who
specializes in ABC license enforcement proceedings and Judge Thomas Cain, who specializes in
evictions. Both. judges found that the owner di.d not have guilty knowledge of what was going on and
took effective action to prevent and stop it when it came to light. in the case of the A.LI the lightest .
penalty they ever consider - a brief period of actual closure - was imposed. In the case of the Superior
Court, who was being asked by Mr. 7ana.rdi to terminate the lease because the drug sales allegedly
constituted a nuisance, no penalty at all was imposed cxcept the attorneys :Gees award against landlord.
Are these decisions, even the one where Judge Cain found there was no nuisiui.ee, binding on
you? No. Are they instructive as to what another Superior Cou.rtjudge is liable to do Iftlie drug claim
is used to revoke the use permit or impose onerous conditions? .I believe it is very indicative.
Since that otac brief stretch ).-pore than. two years ago The Last Call. bas been, and aims to
permanently remain., drug fitec. Security cameras were installed, perso i. el were hired. with. formal
tra.i ring or required to obtain it, last December, because of the state o:f: relations with the Los Gatos
force, my client held a mandatory substance abuse prevention training session for all en.3.p.loyees,
including the cleaning staff., with Officer Steve Brandon and his colleagues of the CHP.
Health Department Allegations
Out of concern for assessing the presence or absence of any colorable evidence teat there is a
health and safety public nuisance at The Last Call, I contacted the Santa Clam County Department of
Fnvironl„ental Health. They notified me that it was time for a. routine inspection, and later that week
they performed one.
The attached materials contain the handwritten report of the August 24, 2006 inspection to her
supervisor with a candid conclusion "-facility was better than average." You must decide whata
judge may be asked to review: whose opinion about whether health and safety eonditians at the Last Call
are a nuisata.ce is more objectively reliable, Town planning staff or the inspecting County pro•fession<<l?
l egc d-ppo-li c e-c a-t is
The bulk of my argument on this issue will be presented in the .form of atta.climents to this
letter. 't'hese attachments present objective data about what the police reports actually show. ,
in its August 31. report in preparation for this sleeting your staff suddenly, and with no advance
taoti.ce to us, switched for the first nine to a "police calls per seat" basis of analysis. This tells its
nothillg about the real question that is before you: is The Last Call now a nuisance?
In order to give you the false impress'ioll that the Last Call is now a nuisance st'afi(,' arbitrarily
reaches back over a period of some six years, to 1999, to get the figures it presents to you., If there was
a constant rate of reports or incidents over those years for The Last Call, perhaps that would have sortie
validity-
Your staff knows, because the report: data shows, that there is no such constant rate, Instead
The Last CalI shows two sharp declines in police calls: once after the 2004 drub; arrests and ai1other
this past winter after the 30 day suspension w-as served.
Please recall in this regard that your police departineiat ahs testificcl that it has made no.form.al
effort whatsoever to contact The Last Call or work with it in any way to reduce the nu:rnber of calls,
Wet at< we know why. But even in the absence of any police cooperation, supposedly because The
i,,ast Call is so horrible and uncooperative, there has been an exponential reduction in calls sbace 2004.
It has all been achieved by The Last Call staff with some help from the California Highway Patrol, and
of course the bi-roillial counsel of good Los Gatos officers who use police contacts to educate or
advise;. I urge you to con5ider this evidence carefully the way an impa.rtia.t j,a.d.ge would do in using
his/tier iladependent judgment. '11e evidence shows Goguen.'s is .not now a. nuisance.
The alleged "disorderly house" issue
As .Ear as T can tell this is an old-fashioned, catch-all term :for a place where people; break the
law. As a label it maybe interesting, but it acids nothing to the evidence. It is not an of:fen.se or a
violation ofthe law in itself, but rather a: conclusory te`.rln which does not involve any new evidence.
Transients
This may be the cruelest and most unfair charge in this case. Cynthia Gogu.eai's bar does not
cater to the homeless or invite them to her premises. In fact they are not welcome as patrons because
of obvious hygiene and behavior issues.
She has done them an occasional kindness - storing a bike temporarily so that it would not be
stolen, giving them a few dollars to clean up the'rown rind private parldxig areas once iz a while, azid
serving then a hot meal for free at Christmas time. Thcse are acts of simple human decency, aot a
violation of any standard of law or good conduct.
Instead of catering to the homeless or promoting thei,.r, misconduct, often, as police department
records show, Gogucn's ha_s been the one to call and let tins department luaow about tran.sien.t
nlisbeh.avior. In the attachments you will see a sad, talisspellcd an d even heait-rendi.n.g, hwmd written -
letter prepared by the homeless for your council when they learned that their lnreseiace on Town
premises was supposedly a basis for revocation of her permit. It q)eaks for itself
Closing hour issue
As you are no doubt well aware, we were to very substantial accord with the Planning
Con-imission on most issues. Early clossiing time was the one with which we could not live.
I respectfully submit to the Town that in order to impose an earlier closing time an nuisance
grounds, there must be some rational nexus between the changed hours and current condition,-, and
operations at the bar. 1 will submit to you this evening copies of the on1jifilve allegedly serious Y.-Ports
regarding The Last Call hi 2006. Otaly 1 happened after the midnight closing the Conu-nission imposed.
Conclusion
In summary I trust you see what I See and, if, God ;forbid we get that far, a. judge will see: staff
h.as not given you ol?jective analysis that passes the independent ju.dgnient test for revocation or
amendment of an existing use perl6t on nuisance grounds. instead it has presented you. with a. biased
and pretextual analysis designed to cause revocation for The Last Call.
I urge you to use your own powers of independent judgment to find based on 2006 data that
Gogucn's is not a nuisance and may continue to operate under its existing permit, perhaps with a more
spcci'tic set of criteria agreed upon between Goguen's and the police Tor evaluating its operations.
Very truly yours,
Kent G. Washburn