Jhae v. City of
Filed 10/3/13 Jhae v. City of Pasadena CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
KUM MAN JHAE et al.,
Plaintiffs
and Appellants,
v.
CITY OF PASADENA et al.,
Defendants
and Respondents.
B244435
(Los
Angeles County
Super. Ct.
No. BS125168)
APPEAL
from a judgment of the Superior Court
of
County. James C.
Chalfant, Judge. Affirmed.
Burkhalter
Kessler Clement & George, Daniel J. Kessler and Amber M. Sanchez for
Plaintiffs and Appellants.
Michele
Beal Bagneris, City Attorney and Frank L. Rhemrev, Assistant
City Attorney, for Defendants and
Respondents.
* * * * * *
Plaintiffs
and appellants Kum Man Jhae and Kun Chin Jhae appeal from a judgment denying
their administrative mandate petition
filed against defendants and respondents
City of Pasadena
and City Council of the City of Pasadena
(the City or the City Council). The
petition requested modification of four of 20 conditions imposed on their
business, Super Liquor, after it was found to be a public nuisance. Because substantial
evidence supports respondents’ refusal to modify the conditions, the
judgment is affirmed.
The Public Nuisance Determination
and Operating Conditions
Appellants
have owned and operated Super Liquor in Pasadena
since 2003, pursuant to a license issued by the California Department of
Alcoholic Beverage Control (ABC). On October 10, 2008, ABC issued a report
summarizing an investigation of Super Liquor between January 2007 and April
2008. The report stated that, during the
applicable time period, Super Liquor violated the following provisions of
Business and Professions Code:
name="_ftnref1" title="">[1] disorderly premises (§ 25601), failure to
correct objectionable conditions on the premises (§ 24200, subd. (e)),
failure to correct objectionable conditions on a sidewalk abutting premises
(§ 24200, subd. (f)), and permitting illegal sales, negotiations for such
sales, of narcotics upon the licensed premises (§ 24200.5).
ABC
reported that Super Liquor had been a source of frequent law enforcement
activity. The premises were “a draw†on
police resources. Appellants failed to
make an effort to correct objectionable conditions after being notified to do
so by City officials. Between October 4, 2007 and October 19, 2007, a department
investigator purchased rock cocaine inside the premises and in the premises
parking lot from various local dealers.
The purchases were made in the presence of appellant Kun Chin Jhae, and
a store employee.
As
a result of its investigation, on February
19, 2009 ABC issued an accusation against Super Liquor. The accusation alleged the aforementioned
violations of the Business and Professions Code. On February
25, 2009, Super Liquor signed a stipulation and waiver for
prehearing settlement with ABC. In
exchange for a two-year stay on the revocation of Super Liquor’s off-sale
license, appellants waived the right to a hearing, reconsideration and appeal.
On
March 13, 2009, ABC issued
a decision which stated that cause for discipline had been established by Super
Liquor’s violations of sections 25601, 24200, subdivision (e) and 24200.5,
subdivision (a). ABC imposed six
conditions on Super Liquor’s license. ABC advised the City of its decision by letter
dated March 17, 2009.
On
June 4, 2009, based on ABC’s
decision, the City’s Code Enforcement Commission (the Commission) conducted a
public hearing and determined Super Liquor operated as a public nuisance. The Commission also imposed
20 conditions of operation to ensure Super Liquor complied with
performance standards required by the City’s Deemed Approval Alcoholic Beverage
Retail Sale Ordinance as set forth in Pasadena Municipal Code section 8.18 et
seq. (PMC).
Super
Liquor appealed the Commission’s order to the City Council. The City Council denied the appeal adopting
ABC’s findings. The City Council also
affirmed the Commission’s imposition of 20 operating conditions. The City Council modified Condition
No. 19 by reducing the time allowed for Super Liquor to sell alcohol to
the hours of 9:00 a.m. to 6:00 p.m.
On
January 25, 2010, the City
reconsidered the matter and affirmed its prior decision imposing
20 operating conditions with certain modifications. The City also added Condition No. 21
which allowed Super Liquor to seek review after 12 months to determine whether
the conditions of operations should be revised.
Original Petition and Injunction
On
March 1, 2010, appellants
filed an administrative mandate petition.
On March 12, 2010,
the trial court granted a preliminary injunction staying enforcement of
Condition No. 3 (which sought to prohibit the sale of single containers of
distilled spirits) and Condition No. 19 (which limited Super Liquor’s
hours of operation and hours of alcohol sales).
On March 18, 2010,
the trial court issued an order staying Conditions Nos. 3 and 19 pending
trial of the matter. The trial court
enjoined the City from enforcing Condition No.19 which restricted business hours
of operation between the hours of 7:00 a.m.
and 9:00 p.m. daily with the sale of
alcohol limited to the hours of 9:00 a.m. to 6:00
p.m.
The Modification Request
A
year after the injunction was issued, on March 14, 2011, Super Liquor submitted an application
seeking to modify five of the 21 operating conditions. Super Liquor requested elimination of
Conditions Nos. 3 and 19, which were the subject of the trial court’s March 12, 2010 preliminary
injunction. Super Liquor also requested
clarification, modification or elimination of three additional Conditions Nos.
9, 10, and 18. Super Liquor’s request
was based on the absence of arrests, code enforcement complaints or ABC
disciplinary action for over two years.
Condition
No. 9 provided: “Management shall
employ a private security guard to patrol the business premises and the
adjacent sidewalks, including the north side of Orange Grove Boulevard adjacent
to the property, during all hours of business operation to ensure that no
littering, loitering, or consumption of alcohol occurs, and make prompt
notification to the Pasadena Police Department of instances of loitering, the
public consumption of alcohol or other illegal activity.†Super Liquor requested removal of the
requirement of “employing†a private security guard.
Condition
No. 10 provided: “It shall be the
responsibility of the business owner/operators of the business to remove
identifiable litter from the premises and the public right of way (limited to
the north side of East Orange Grove up to 100 feet from the
premises).†Super Liquor requested
clarification of the parameters and a modification to limit removal of litter
from public sidewalks up to 50 feet from the premises.
Condition
No. 18 provided: “All alcoholic
beverage containers shall be identified with a sticker that has the name [o]f
the business establishment. Translucent
bags shall be identified in the same manner.â€
Super Liquor requested that this condition be eliminated in its
entirety.
On
April 7, 2011, the
Commission heard and granted the modification request. The City Council called the Commission’s
order up for review on July 25, 2011. On August
1, 2011, the City Council granted the request to eliminate
Condition No. 3 (removing distilled spirits from the list of prohibited
signal container products). However, the
City Council denied the remaining requests to modify or eliminate the four
other conditions. Condition No. 19
was modified to read: “‘Business hours
of operation shall be between 6:30 a.m.
and 10:00 p.m. daily with the sale of
alcohol to occur only between the hours of 8:00
a.m. and 9:00 p.m.’â€
The First Amended Administrative
Mandate Petition
On
October 4, 2011, appellants
filed a first amended petition for administrative mandamus. The petition alleged that the City Council
issued a decision which lacked findings upon which it based the determination
to deny the modification requests as to Conditions
Nos. 9, 10, 18 and 19.
The
petition further alleged that the modification of Condition No. 19 violated the
trial court’s preliminary injunction, which permitted Super Liquor to return to
normal hours with no temporal restrictions on the sale of alcohol. Appellants further alleged that the
conditions imposed on Super Liquor were far more restrictive than those imposed
on similarly situated businesses such that its equal protection rights were
violated.
In
support of the petition, appellants asserted that the Commission correctly
granted the modification requests after finding there was no evidence of any
nuisance activity at Super Liquor during the prior one-year period, which
justified the conditions. The City
Council disregarded evidence and legal standards. The City Council’s decision to set aside the
Commission’s order was not supported by any evidence and lacked requisite
findings.
On
February 15, 2012, the
trial court granted the petition in part on the ground the decision did not
contain the requisite Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514–515
findings. The City was ordered to file a
new decision making the findings. The
City issued a new decision on April 2,
2012.
The
City summarized the evidence it relied on in denying the modification
requests. A neighbor, Laura Liptak,
provided a letter and studies of the effect of liquor stores on a local
neighborhood. She argued that “if we
allow these regulations to be removed, the likelihood of crime increasing is
significant.†She testified at the July 25, 2011 hearing. She saw “prostitutes at
night. . . . walking . . . through [her]
property, throwing trash.†She
“currently . . . witnessed drug deals, gang fights,
prostitution, and extreme violence.†She
submitted “five reports within the last ten years that basically prove that the
density of liquor store outlets and violent crimes is a direct correlation.â€
A
police department “Calls for Services Details Report†was submitted, which
showed that within a 500 feet radius of Super Liquor, 190 calls for
service from September 3, 2010
to July 21, 2011 were made. There were 86 noise violations,
58 disorderly conduct, 35 public drunkenness, 5 assaults and 6 other types
of offenses. Police Lieutenant Kelly
confirmed the report.
John
Hutt, President of Engelmann Real Estate Services, submitted a letter which stated
his company has property “kitty corner†to Super Liquor. He stated appellants’ “business attracts
loiterers and drunks and contributes to littering, pan-handling, public
drunkenness, public urination and other nuisance activities.†He felt that the prior imposed conditions had
helped. He argued that the City should
not backtrack and weaken the conditions imposed on Super Liquor but should
reduce nuisances caused by neighboring liquor stores. His tenants “continue to find bottles and
other litter with Super Liquor labels or with labels partially removed.†He wrote that “[p]ublic drunkenness,
vandalism, public urination and other nuisance activities continue.†In addition, “[p]icking up trash and washing
human defecation from our parking lot and lawn is a regular occurrence.â€
Terri
MacQuarrie brought in “a nice big bag of trash from our local liquor
stores.†James MacQuarrie testified that
there was “a big problem†with sales of liquor at 6:30 a.m.
because the homeless shelters “let out†at 7:00 a.m. He testified that the homeless people “comeâ€
to the liquor store to get their “drunk on†for the day. Labeling bottles with stickers “is not
intended to reduce the litter.†Rather,
it allowed the litter to be identified.
With respect to picking up trash in front of the store, he testified
that the ABC prohibited loitering so the patrons would not drop trash in front
of the liquor store. So, they went
outside that area and littered. He
testified that “you can’t be an effective security guard if you’re behind the
register ringing people up.â€
Michael
Chill testified that he lives “right around the corner from Super Liquor.†The labels helped. He calculated that about 60 percent of the
bottles were from Super Liquor, 40 percent had either peeled labels or were
unmarked. He found “it curious that the
same people who are afraid to leave the front of their business because of
security issues want to provide their own security.†He only brought in the trash. He did not “bring the urine and the defecation
and the vomit,†which was there. He did
not “bring the broken beer bottles†that he had to sweep into the street or
hose off the beer on his own. He
confirmed that he collected the bottles in front of 735
N. Raymond Avenue.
Gretchen
Palmer had three bottles that she picked up next to her car on the way to the
public hearing. She has people sitting,
drinking and smoking crack in front of her house. There was a “drunk†in front of her house who
“couldn’t get up†after they “tried to wake him up so many times.†Super Liquor is connected to the nuisance in
her neighborhood. She testified: “Every single day I have to push people off
of my lawn drunk. Every single day. Think about that.â€
Vince
Bertoni, the planning director, stated that there are some conditions that are
consistently applied to similar establishments across the city. The conditions are customized to the
individual situation. Picking up trash
and litter not just on their site but adjacent sites has been done in several
instances. The private security guard is
also one of the conditions.
The
City noted that appellants’ counsel confirmed that Super Liquor was not abiding
by the condition to employ a private security guard. Nor was Super Liquor abiding by the condition
that required litter removal 100 feet from the premises. According to him, police told Super Liquor
not to do so. As far as labeling, he
stated: “I think it’s four hours a day
seven days a week that are attributable to just putting stickers on. Hard to believe . . . .â€
The
City cited comments from different Council members. Councilmember Holden noted, even if Super
Liquor was moving in the right direction, it had a prior history. The modification request had to be viewed in
the context of the prior history.
Councilmember
Gordo noted the history of Super Liquor and the ABC decision, which found “the
licensee knowingly permitted the illegal sale or negotiations of controlled
substances or dangerous drugs upon his licensed premises.†Super Liquor was brought to the City’s
attention by neighbors, businesses, police and ABC. The underlying acts were reported through
surveillance and undercover investigations, including drug sales in front of
the owners. The City had to subsidize
the undercover police officers with ABC to discover what the neighbors had been
saying was true for a number of years.
Councilmember
Holden stated there was a connection or nexus where the types of products that
were being sold are distilled spirits in small quantities at 6:30 a.m.
There was a potential adverse impact “from an individual having the
opportunity to purchase that kind of quantity of alcohol and going into the
neighborhood and then maybe particularly creating some problems at—at that
particular hour.â€
The
City concluded the absence of formal complaints to enforcement and the absence
of criminal activity directly attributable to Super Liquor did not require the
modifications. Rather, the dearth of
negative reports was evidence that the conditions worked not that they should
be eliminated. The City found there was
a nuisance problem in the surrounding neighborhood and with Super Liquor. The conditions are necessary to abate the
nuisance and potential nuisance.
The
City filed a return on the writ on April
12, 2012. After further
briefing, the trial court denied the administrative mandamus petition on August 28, 2012 and entered judgment
on September 18, 2012. Appellants filed a
I. Applicable Ordinances
Super
Liquor’s operation was subject to the City’s “Deemed Approved Alcoholic
Beverage Retail Sale Ordinance.â€
(PMC § 8.18 et seq.)
The purpose of the ordinance is to protect “the health, safety, comfort,
convenience, prosperity, and general welfare of persons visiting, residing,
working or conducting business in the city,†which may be adversely affected by
alcoholic beverage retail establishments which are nonconforming, under a
conditional use permit. (PMC § 8.18.020.) Among other things, the ordinance regulates
and enforces procedures to address community problems associated with alcohol
sales and consumption such as litter, loitering, graffiti, unruly behavior and
escalated noise levels. (PMC §
8.18.020(A).) The ordinance prevents
“prohibited activities and activities contrary to deemed approved activities
from becoming public nuisances.â€
(PMC § 8.18.020(D).) The
ordinance also “[ensures] such adverse impacts are monitored, mitigated and/or
controlled such that they do not negatively contribute to the change in
character of the areas in which they are located.†(PMC § 8.18.020(E).)
Deemed
approved activities must meet applicable performance standards and activities
must not: result in adverse effects to
the public or to abutting properties, result in nuisances or violate any
laws.
(PMC § 8.18.060(A)(1-5).)
A business which is charged with violating the performance standards
will be referred to the Commission.
(PMC §§ 8.18.080, 8.18.090.)
The Commission holds a public hearing conducted in accordance with
Pasadena Municipal Code section 14.50.060 to determine whether the
business is violating the performance standards. (PMC §§ 8.18.080, 8.18.090.) The Commission has authority to impose, add,
or modify any reasonable conditions of approval which are necessary to ensure
conformity with the performance standards.
(PMC § 8.18.080(B)(1)(b).)
The owner or operator has the right to appeal the Commission’s decision. The City Council has authority to call up for
review the Commission’s decision.
(PMC § 8.18.080(C).)
II. Standard of Review
“In
ruling on a petition for writ of administrative mandamus, the trial court
reviews the administrative record to determine whether the agency’s decision is
supported by substantial evidence.
[Citations.] The court must
consider all relevant evidence in the record, but “‘[i]t is for the agency to
weigh the preponderance of conflicting evidence [citation]. Courts may reverse an agency’s decision only
if, based on the evidence before the agency, a reasonable person could not
reach the conclusion reached by the agency.Չۉ۪
[Citations.] The standard of
review for this court is identical: We, too, determine whether substantial
evidence supports the administrative decision.
[Citations.]†(Eden Hospital
Dist. v. Belshé (1998) 65 Cal.App.4th 908, 915–916; see also
San Jose (2003) 106 Cal.App.4th 204, 218.)
De novo review is only appropriate if the decision rests solely upon the
interpretation of the Ordinance, which is a question of law. (Schneider
v. California
1339, 1343–1344; Gilliland v. Medical
Board (2001) 89 Cal.App.4th 208, 219.)
III. Burden of Proof
Appellants
contend that the trial court erred by giving them “an improper evidentiary
burden not supported by Code of Civil Procedure section 1094.5 or any
other legal standard.â€
There
is a strong presumption of correctness given to administrative findings. (Fukuda
v. City of Angels (1999) 20 Cal.4th 805, 817.) “[T]he party challenging the administrative
decision bears the burden of convincing the court that the administrative
findings are contrary to the weight of evidence.†(Ibid.) Because appellants are challenging the City’s
administrative decision, they have the burden of proving that the City’s
decision is contrary to the weight of evidence, unreasonable or unlawful. (Wirth
v. State of California (2006) 142 Cal.App.4th 131, 138;
Control Bd. (1991) 228 Cal.App.3d 1548, 1556.)
According
to appellants, the trial court confused the parties’ burdens in deciding
whether the City’s decision denying the modifications should be set aside. The trial court initially addressed the
burden of proof issue in its February
15, 2012 order granting the petition in part for
trial court restated its former burden of proof ruling. The trial court gave the following
analysis. The trial court noted the City
Council initially found Super Liquor to be a nuisance in July 2009. The nuisance finding and the facts supporting
it are now conclusive. Neither the
nuisance finding nor an evidentiary basis supporting it was raised as issues in
the first amended petition. Rather, the
first amended petition related only to the August 1, 2011 decision concerning the modification of the
operating conditions. The trial court
found appellants waived any claims that the original nuisance finding or the
original imposition of conditions were not supported by the evidence.
The
trial court then ruled: “There is no
need for [the] City again to find Super Liquor to be a nuisance. The store is a nuisance until the nuisance is
abated. [¶] Because of the nuisance finding, [appellants]
have the burden of establishing their entitlement to a modification of the
conditions. The lack of nuisance
activity over a one-year period is relevant to modification, but does not
establish as a matter of law that the conditions must be modified. City imposed conditions on Super Liquor that
were necessary to ensure conformity with the deemed approved performance
standards. PMC §§ 8.18.060,
8.18.100. Having been found to be a
nuisance, Super Liquor is not in the same position as other liquor stores in
the area. The restrictions imposed on
Super Liquor may be maintained in order to abate the nuisance unless they are
no longer necessary. This is the inverse
of [appellants’] claim that [the] City may maintain the conditions only if they
are necessary. It may be that the
imposed conditions are the very reason why [there were] no complaints or police
reports against Super Liquor during the previous year. The City Council’s July 25, 2011 Agenda Report made this very
point. AR 144-3 (fact of no complaints
‘is indicative that the preventative measures contained within the operating
conditions are effective. . . .’). [¶]
Thus, [appellants] bear the burden of proving that the City’s decision
not to modify the imposed conditions (except Condition No. 3) lacks substantial
evidence because the conditions are no longer necessary to prevent Super Liquor
from being a public nuisance.â€
The
trial court concluded appellants failed to establish that, with the exception
of Condition No. 3, the City’s decision not to modify the imposed
conditions “lacks substantial evidence because the conditions are no longer
necessary to prevent Super Liquor from being a public nuisance.â€
It
must be emphasized that appellants were requesting modification of five of
20 operating conditions, which had been imposed on January 25, 2010 to abate a public nuisance. Thus, the burden of proof issue was raised at
a stage of the proceedings where Super Liquor was an adjudicated nuisance. Moreover, contrary to appellants’ assertions
otherwise, the record clearly reflects that trial court did not improperly
shift the burden of proof to appellants.
Rather, the trial court merely reminded appellants that, given the
unchallenged and final nuisance determination, appellants had to show a basis
for relief under the Code of Civil Procedure.
Code of Civil Procedure section 1094.5, subdivision (b) required
appellants to show a prejudicial abuse of discretion by a showing error of law
or the decision was not supported by the findings or the findings were not supported
by evidence. In this case, because of
the nuisance determination, appellants were required to show that the
conditions were no longer necessary.
Thus, the trial court correctly advised appellants they had the burden
of showing the administrative findings (which were that the conditions are
still necessary) were contrary to the weight of evidence given the nuisance
decision.
IV. Sufficiency of the Evidence
Appellants
claim the judgment should be reversed because the City’s decision to deny the
modifications is not supported by the evidence.
Appellants claim the decision was based on incompetent evidence
including neighbors’ statements, speculation and hearsay evidence which was
presented during the administrative hearing.
Generally, evidentiary rules are relaxed in public hearings in order to
preserve the informal nature of the proceedings. (Mohilef
v. Janovici (1996) 51 Cal.App.4th 267, 294–295 [nuisance abatement
proceeding].) As a result, a party can
present evidence to an administrative agency which would be inadmissible in a
court. (Carmel Valley View, Ltd. v. Board of Supervisors (1976) 58
Cal.App.3d 817, 823.)
Appellants’
real claim is that the modifications were warranted because of the absence of
arrests, code enforcement complaints or ABC’s disciplinary action for over two
years. However, the absence of crimes,
arrests or other violations does not establish the modifications were warranted
as a matter of law. Indeed, as the City
determined an inference can be made that the imposition of the operating
conditions is what led to the decreased activity associated with the initial
nuisance determination. In any event, in
rendering its decision, the City was not confined to considering only current
activities concerning Super Liquor’s operation.
The City properly considered Super Liquor well-documented history of
nuisance problems, which had jeopardized the public health and well-being,
prior to the imposition of the conditions.
(See Suzuki v. City of Los Angeles
(1996) 44 Cal.App.4th 263, 273.)
We
conclude that the judgment denying the administrative mandate petition must be
affirmed. Substantial evidence supports
the agency’s decision to deny the modifications as requested. Moreover, appellants failed to meet their
burden of establishing the administrative finding that the conditions were
still necessary, was not supported by the weight of the evidence.
As
to Condition No. 9, the City denied the request to modify the condition to
remove the requirement to employ a “private security guard.†Appellant Kum Man Jhae indicated he had
obtained a security guard certificate.
In denying the request, the City found:
“[A] nuisance existed on the property and the employment of a private
security guard is necessary to prevent continued nuisance activities. Further, the use of a store employee or
family member would not be effective in abating the nuisance because employees
would be distracted by responsibilities to work [the] cash register, stock
items, etc. Family members or employees
who have ‘non-security guard’ responsibilities would diminish the deterrent
effect of the security guard . . . .â€
The
record supports the finding particularly in light of the prior history of Super
Liquor. The evidence showed that drug
sales were made during undercover law enforcement and ABC investigations in
front of the owner and store employees.
The conclusion that the owner or an employee would not be effective is
reasonable and supported by substantial evidence. Appellants did not present any evidence that
a security guard was no longer necessary.
They only wanted to have the owner act as the security guard. This evidence does not defeat the City’s
determination that a private security guard is needed to abate the nuisance.
The
City denied the request to modify Condition No. 10 to reduce the
requirement to remove litter from within 100 feet to within 50 feet
around Super Liquor. The City found
“litter in the area around the store and the adjoining neighborhoods is a
pervasive problem as indicated by the testimony of numerous neighbors; that the
litter is identified as having come from Super Liquor; and that in light of the
pervasiveness of the litter problem, litter removal within 100 feet of the
premises on the same side of Orange Grove as the business is necessary to
assure that the nuisance created by identifiable litter generated by the
business customers is reduced or eliminated.â€
Neighbors
testified about the areas surrounding Super Liquor. The neighbors brought in bags of trash
including alcohol bottles, which they found on their lawns. This was sufficient evidence that litter was
still a pervasive problem in the surrounding neighborhood. Appellants offered no evidence that showed
the restriction was no longer necessary.
Appellants’
request to eliminate Condition No. 18 requiring labeling of alcoholic
beverage containers and translucent bags was denied. The City found: “[L]itter in the area around the store and
the adjoining neighborhoods is a pervasive problem as indicated by the testimony
of numerous neighbors; that the litter is identified as having come from Super
Liquor; that Super Liquor in Condition No. 10 is required to remove
‘identifiable’ litter; that the ability to identify where litter comes from
helps the City to focus its limited resources in battling this problem; and
that in light of the pervasiveness of the litter problem requiring the
identification of alcoholic beverage containers and bags is needed to assure
that such bags, bottles and cans are appropriately identified for removal.â€
The
findings are supported by substantial
evidence given testimonial evidence by neighbors concerning the need to
pick up alcohol beverage bottles from their lawns. One neighbor testified that 60 percent of the
bottles he picked up from his home lawn were labeled with Super Liquor
stickers.
Appellants
argue the trial court should have granted their mandate petition because the
administrative agency’s evidence did not show that the labeling requirement
provided a “nexus†with any alleged abatement of a “purported nuisance†or
abatement of litter. The problem with
this contention is that the City, and prior to that, ABC, determined Super
Liquor’s operation constituted a public nuisance. Because appellants failed to challenge the
determinations and conditions of operation, they are bound by them under res
judicata standards. (
Cal.4th 61, 70–71; Briggs v. City of
Rolling Hills Estates (1995) 40 Cal.App.4th 637, 645.) Super Liquor has been adjudicated a public
nuisance. Thus, at this stage of the
proceeding, the City did not have to prove the effect of appellants’ compliance
or noncompliance with any of the operating conditions. More importantly, appellants have not
provided any evidence that the labeling requirements are unreasonable or
unnecessary to identify the litter problem.
Appellants choose to ignore that the labeling condition was imposed as
part of a prior adjudication that their operation of Super Liquor constituted a
public nuisance. There is no evidence
that the labeling is no longer necessary because the evidence shows there is
still a major litter problem.
The
City denied appellants’ request to modify Condition No. 19, which limited
hours of operation and hours when Super Liquor could sell alcohol. Business hours were limited to 7:00 a.m. to 9:00
p.m. with the sale of alcohol to occur between the hours of 9:00 a.m. and 6:00
p.m. daily. The City denied
the request to eliminate the condition.
However, the City modified the condition so that business hours are
between 6:30 a.m. and 10:00 p.m. with the sale of alcohol to
occur only between the hours of 8:00 a.m.
and 9:00 p.m.
The
City denied the request but modified the condition on the following basis. The City found: “In light of the testimony of neighbors who
observed prostitutes at night, trespassers, trash, drug deals, gang fights,
loitering, people drinking and smoking crack, public drunkenness, vandalism,
and public urination, that there is a public nuisance; that the early morning
sales of liquor and the late night sale of liquor contributes to that nuisance;
and that eliminating the very early morning hours sale of alcohol and the late
night sale of alcohol for a total of 2½ hour reduction of alcohol sales is
reasonable.â€
Substantial
evidence supports the findings.
Neighbors testified about prostitution, vandalism, trespassing, trash,
loitering, drunkenness and public urination.
The City inferred that late night and early morning alcohol-related
activities were linked.
Appellants
assert the findings related to reduced operations is not supported
because: they operated under normal
hours of operation since the injunction was issued; there was no police
activity or complaints at the property; other businesses sold alcohol without
the hour restriction; the only evidence in support of the limitation was
speculation by a neighbor about how early in the morning appellants wanted to
sell alcohol to homeless shelter residents; councilmember’s speculative
conclusory statements about selling alcohol early in the morning created
problems; the evidence suggests that Super Liquor’s operation hours did not
create problems; university studies were not relevant to Super Liquor’s
nuisance issue or a restriction on operating hours; the police report
established that the calls for service were not related to Super Liquor’s
operation; and other evidence suggested that other liquor stores caused
problems.
Again,
none of appellants’ arguments show that the restriction was not necessary to
address Super Liquor’s public nuisance issue.
We note only that the injunction against the City was not permanent but
preliminary. Furthermore, evidence was
presented that early morning and late night alcohol related criminal and
nuisance activity occurred in the surrounding neighborhood. So, an inference can be made that the
injunction contributed to the public nuisance.
In any event, the City’s restrictions were reasonable under the
circumstances.
In
sum, appellants business has been adjudicated a public nuisance which subjected
it to the imposition of a number of conditions of operation. Appellants have failed to demonstrate that
the conditions imposed on their business Super Liquor’s operations are
unnecessary. Moreover, the City has
demonstrated that its decision to deny the modification is supported by
substantial evidence. Accordingly, the
trial court did not err in refusing to set aside the City’s denial of
appellants’ modification requests.
>
The
judgment is affirmed. The City is
awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
title="">[1] All further statutory references are
to the Business and Professions Code unless otherwise indicated.
name="_ftn2" title="">* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
