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Staff Report PREPARED BY: MONICA RENN Economic Vitality Manager _______________________________________________________________________________________ Reviewed by: Assistant Town Manager Town Attorney Finance ______________________________________________________________________________ N:\SHARE\COUNCIL REPORTS\2016\10-04-16\09 Entertainment Policy\09 Staff Report FINAL.docx MEETING DATE: 10/04/16 ITEM NO. 9 COUNCIL AGENDA REPORT DATE: SEPTEMBER 27, 2016 TO: MAYOR AND TOWN COUNCIL FROM: LAUREL PREVETTI, TOWN MANAGER SUBJECT: RECEIVE A STATUS REPORT ON THE ENTERTAINMENT POLICY ADOPTED BY TOWN COUNCIL ON JUNE 21, 2016. RECOMMENDATION: Receive a status report on the Entertainment Policy adopted by Town Council on June 21, 2016. BACKGROUND: On October 6, 2015, the Council received public testimony at a Study Session regarding alcohol beverage service and entertainment, and continued the item to a Study Session on November 3, 2015 to discuss next steps. At the October 6, 2015 Town Council meeting, the Town Council directed staff to explore and bring back a variety of economic vitality and business related topics including framework for an ordinance or operational permit for alcohol and entertainment. The Policy Committee then began to review and explore the work that has been completed over the last several years for alcohol and entertainment, noting that the complexity that continues to arise during these discussions is due to the difference between issues associated with alcoholic beverage consumption versus those regarding entertainment. As a result, the Policy Committee recommended that the two topics be separated and that the Council consider first a policy on entertainment at the time. On June 21, 2016 the Town Council voted 4 to 1, Mayor Spector opposing, to adopt a policy that allows businesses to offer entertainment before 10 p.m. that is in compliance with the adopted noise ordinance, and offer the opportunity for entertainment after 10 p.m. through a late night entertainment permit process. The Policy took effect immediately for all businesses without a Conditional Use Permit (CUP) that explicitly prohibits entertainment. Any business with the prohibition of entertainment within their CUP is required to file for a modification, and have the opportunity to do so for only the condition that applies to entertainment. PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: RECEIVE A STATUS REPORT ON THE ENTERTAINMENT POLICY ADOPTED BY TOWN COUNCIL ON JUNE 21, 2016. SEPTEMBER 27, 2016 DISCUSSION: Following the adoption of the entertainment policy in June, staff began outreach efforts to assist business and the greater Los Gatos community to understand the new policy, and the best contacts for questions or code compliance concerns. A dedicated webpage within the Town’s website, www.losgatosca.gov/entertainment, was created as a central place for interested parties to read about the Policy, connect with Code Compliance, and access active CUPs. This website was shared through the Town’s What’s New alert, as well as social media outlets. In the weeks to follow, staff notified businesses with a CUP that prohibits entertainment to help them understand that the new Policy allowing entertainment by right could not be applied to their business unless they were approved for a CUP modification. Approximately thirty-five businesses have this provision in their CUPs, and of those, four businesses responded that they would like to apply for the modification. Staff held a meeting and invited interested businesses to meet and learn the process required for a CUP modification for entertainment. One business is currently in the process of its modification (Toll House), two are still considering the process, and a fourth is considering multiple modifications to their CUP and will likely file separately to include consideration of the other conditions. Staff is finalizing the Late Night Entertainment Permit and process consistent with the Policy, and has been contacted by one business interested in applying for this permit. Code Compliance and Enforcement Since the adoption of this Policy, staff only has anecdotal information as to businesses providing entertainment pursuant to the new Policy. Given that this is by right, there is no process for a business to go through to offer entertainment. Since the adoption of this Policy, neither Dispatch nor Code Compliance have received noise complaints due to entertainment at a business before 10 p.m. There has been one instance of a business operating entertainment after 10 p.m. without a permit and likely in excess of the noise ordinance given that both Dispatch and Code Compliance received complaints. This particular business has a CUP that allows for entertainment in compliance with Town policies. Code Compliance followed up with the business owner and no further noise complaints have been received. For businesses without a CUP, entertainment prior to 10 p.m. does not require a permit. Therefore, entertainment prior to 10 p.m. is regulated entirely by the Town’s Noise Ordinance. Town Code Section 16.20.025 states that in Commercial Zones “No person shall cause, make, suffer or allow to be made by any machine, animal, device or any combination of same, in any commercial or industrial zone, a noise level more than eight (8) dB above the noise level specified for that particular noise zone, as shown on the Noise Zone Map, during that particular PAGE 3 MAYOR AND TOWN COUNCIL SUBJECT: RECEIVE A STATUS REPORT ON THE ENTERTAINMENT POLICY ADOPTED BY TOWN COUNCIL ON JUNE 21, 2016. SEPTEMBER 27, 2016 DISCUSSION (Continued): time frame, at any point outside of the property plane.” If a business is found in violation of the Ordinance, a warning letter is issued pursuant to Town Code Section 16.20.070(b). If another violation occurs, the fine is $500. A third violation would be $1,000. If there were repeated violations and a CUP is in place, the Town could proceed with revocation of their CUP pursuant to Section 29.20.310. This process would include the Town bringing the business forward and opening their CUP in a public hearing for modification or revocation by the original deciding body. Entertainment after 10 p.m. requires a permit issued by the Town Manager, or the Town Manager may refer any application for a permit to the Development Review Committee. Appropriate conditions of approval are to be included in any permit as maybe determined necessary to protect the public health, safety, or general welfare. The same procedure above would apply regarding noise complaints and violations. The difference is that an Entertainment Permit has no property rights. It does not run with the land is not transferable. If there are repeated violations, an Entertainment Permit can be revoked by the body that approved the permit (the Town Manager or DRC) without attempting to revoke the CUP. The Town Code Section 16.20.025 prohibits anyone within a commercial zone from exceeding a deviation of 8dB or higher above the noise standard at any time. If a Police or Code Compliance Officer is dispatched to the location of a complaint, a noise reading will be taken at the property line. If the noise has ceased prior to the arrival of the Officer, contact will still be made with the business owner associated with the noise source and a warning letter or fine may issued. This is the same process that the Town uses for all code compliance cases as adopted by the Town Council in November 2015. COORDINATION: This report was coordinated with the Town Attorney’s and Town Manager’s Offices and the Community Development Department. ENVIRONMENTAL ASSESSMENT: This item is not a project under the California Environmental Quality Act.