PURPOSE:

This report represents step two of the one step, two step process requested by the City Council pertaining to revocation of the conditional use permit for Gitana, the nightclub/restaurant/sports bar located at 260 E. Magnolia Boulevard.  Based upon the information provided by the Police Department regarding police activity at Gitana, this report recommends that the City Council direct staff to schedule a compliance hearing before the Planning Board to determine if Gitana is operating in violation of its conditional use permit.  If such a determination is made, this report further recommends that a revocation hearing be scheduled before the Council.

BACKGROUND:

Council Direction: At the City Council meeting of April 29, 2003, several Council members requested that staff initiate a one-step, two-step process pursuant to City Council policy to agendize issues related to conditional use permit revocation and Gitana.  On May 27, 2003, staff provided the Council with a report that contained information on the conditional use permit revocation process in general and on some of the specific terms of Gitana�s conditional use permit.  That report and Gitana�s conditions of approval are attached hereto as Exhibit A.

At the May 27 meeting, the Council requested that staff proceed with placing this matter on a future agenda for further discussion and directed staff to return with a report from the Police Department outlining the recent history of police activity at Gitana and analyzing the demands placed upon the City�s police services.

Need for Conditional Use Permit: Gitana was required to obtain a conditional use permit due to Municipal Code requirements and the restrictions placed upon restaurant uses within Planned Development No. 95-1, which approved the mixed-use project in which Gitana is located.  The conditions of approval for the Planned Development state that the standards of the BCC-1 zone shall be applied to commercial uses in the project and further require the following of any restaurants located within the project:

• no dancing or dance floor is permitted in the restaurant

• alcoholic beverages shall not be served prior to 11 a.m.

• at least 65 percent of the gross sales revenue must be from food sales

• the area of the establishment devoted primarily to the sale or consumption of alcohol shall not constitute more than 15 percent of the floor area

• no more than two billiard tables are permitted

The conditions of approval state that any modification to these restrictions and/or the establishment of a nightclub requires approval of a conditional use permit.  Further, the Burbank Municipal Code requires:

• a conditional use permit for a billiard parlor (with three or more tables) in the BCC-1 zone

• a conditional use permit for any restaurant/drinking establishment or cocktail lounge/bar

• a conditional use permit for any nightclub

Gitana�s conditional use permit, approved by the City Council in 1998, and a subsequent amendment thereto provided the following entitlements as permitted by Planned Development No. 95-1 and the Burbank Municipal Code:

• operation of a bar and separate cigar lounge in conjunction with a full service restaurant

• operation of a nightclub with a dance floor and live entertainment

• operation of a billiard parlor with up to 17 billiard tables

• at least 50 percent (rather than 65 percent) of the gross sales revenue must be from food sales, not including the nightclub portion of the business

• the area of the establishment devoted primarily to the sale or consumption of alcohol may exceed 15 percent of the floor area

• service of alcoholic beverages may begin at 10 a.m. on Saturday and Sunday

ANALYSIS:

Police Department Review: Attached hereto as Exhibit B is the Police Department report requested by the City Council.  The Police Department analyzed all of the police calls to Gitana and the immediate vicinity from October 2002 to May 2003 and evaluated the extent to which the calls were related to the business.  The Police Department determined that a total of 63 police calls for service that were linked to Gitana occurred during the eight month period.  These calls included incidents such as assaults with a deadly weapon, fights, and driving under the influence.  The attached report includes a complete list of all of the police calls for service, and a brief analysis of each incident.

Based upon the frequency and nature of the police calls for service during the period from October 2002 to May 2003 and the number of police officers that are often required to handle the situations, the Police Department determined that the incidents �create a substantial adverse impact on the delivery of police services within the City of Burbank.�  Based upon this determination, the Chief of Police requests in his report that the Planning Board conduct a compliance hearing pursuant to the conditions of approval for Gitana�s conditional use permit.  The purpose of the hearing is to determine if Gitana is creating a substantial adverse impact on police services to the detriment of public health and safety and in violation of the conditions of approval.

Complaints and Other Issues: To provide a picture of complaints and other concerns at Gitana not related to police activity, staff checked with the License and Code Services Division to determine the volume and nature of code-related complaints received regarding Gitana since its opening in 1999.  Staff also reviewed planning project files to look at specific occurrences with which planning and other City departments have been involved.

Banners and Signs:

In 1999 and 2002, Gitana was found on three separate occasions to have banners or other signs that did not comply with the Municipal Code.  In each instance, Gitana immediately removed the signs when so advised by City staff.

Noise:

In April and May 2000, the City received two complaints regarding excessive noise at Gitana after 10 p.m., in violation of Gitana�s conditions of approval and potentially the City�s noise ordinance.  Staff investigated the complaints by visiting Gitana after 10 p.m. and found no excessive noise at the business.  No other complaints have been filed with the License and Code Services office since that time.

During 2000 and 2001, several noticed public hearings were held before the City Council in connection with Gitana�s request to modify its conditions of approval.  Before and during those hearings, several residents from the senior apartments above Gitana spoke to the Council and directly to staff about excessive noise outside the business during late night hours.  At that time, the Council requested that the applicant work to address the noise issues, and staff also discussed the issue with the applicant.  Staff made on-site visits during evening hours at that time and did not find any excessive noise outside of the establishment.  Since that time, no complaints have been received regarding noise at Gitana, and staff is not aware of any continuing noise problems at the business.

Exotic Dancing:

In September 2000, staff became aware of a newspaper advertisement for female �exotic dancers� at Gitana.  Staff was concerned that the type of dancing advertised might constitute a violation of the City�s adult business ordinance.  Staff discussed the issue with the owners, who stated that the reference to exotic dancers was a misprint and that no such dancing was occurring at Gitana.  The ad was re-printed without the reference to exotic dancing.

In April 2002, staff became aware of a newspaper advertisement for a male exotic dancing show at Gitana.  Staff was again concerned that the nature of the dancing described in the ad might violate the City�s adult business ordinance.  Staff made Gitana�s management aware of the City�s ordinance and advised them that any dancing that would constitute adult entertainment was not permitted at that location.  Gitana�s management stated that the dancing show would be cancelled, and staff never observed any violations of the adult business ordinance at Gitana.

Valet Parking:

In August 2002, the Police Department notified the Planning Division that the restaurant portion of Gitana was conducting a valet parking operation on Magnolia Boulevard in front of the restaurant and stacking cars in the paseo area next to the restaurant.  The valet operation created a traffic flow obstruction and a potential safety hazard along Magnolia because it blocked a lane of traffic, and also violated the conditions of approval for the underlying planned development by using a pedestrian open space area for vehicle parking.  Staff met with Gitana�s owners and sent a follow-up letter, and the valet operation was discontinued shortly thereafter.

Relation to Conditional Use Permit:

Some of the issues regarding Gitana, particularly those related to signs and valet parking, are unrelated to the conditional use permit and are issues that could arise with any business.  The issues related to exotic dancing are somewhat related to the nature of the establishment as a nightclub and the activities related thereto.  However, the dancing issues were addressed with Gitana management, who were responsive to staff�s concerns.  No violation of the adult business ordinance is known to have occurred at Gitana.

The complaints most directly related to the conditional use permit are those regarding excessive noise during late evening hours.  Several conditions of approval deal with noise control, and continued noise could create a substantial negative impact on the residential units above and constitute a nuisance.  As discussed above, however, staff has investigated each time a noise complaint has been received and found no excessive noise at the establishment.  Although some instances of noise have apparently occurred, staff notes that the occurrence has been infrequent as evidenced by the few calls and complaints that have been received over the past four years.  However, staff recognizes that the relatively few noise complaints are notwithstanding the noise that is likely associated with disturbances and police activity during late evening hours.

Alcohol License: Gitana sells alcoholic beverages pursuant to a single Type 47 general eating place license.  As such, the Department of Alcoholic Beverage Control (ABC) regulates Gitana as a restaurant with bar and dance areas, as opposed to a separate bar and nightclub.

Staff inquired with the ABC about whether Gitana has been found in violation of its license or any laws related to the service of alcoholic beverages.  An ABC investigator reviewed their files on Gitana and reported that Gitana received a formal written warning in December 2001 after serving alcohol to an underage patron during a decoy operation.  According to the ABC, Gitana has had no other problems related to alcohol service since that incident.

The ABC investigator noted that ABC has received copies of police reports from the Burbank Police Department for incidents at and near Gitana, but that the ABC has been unable to conclusively determine the extent to which the reported incidents were related to the service of alcoholic beverages.  ABC staff are now in the process of re-examining all of the police reports to determine whether any of the incidents may be of concern to their department.  When staff made the investigator aware of the report of police activity attached hereto, he requested a copy of the report and indicated that ABC would review the report to determine if any action is warranted with regard to the ABC license.

CONCLUSION:

Based upon the Police Department�s review of police activity at Gitana, the Chief of Police has requested a compliance hearing before the Planning Board pursuant to Gitana�s conditions of approval.

Although the City Council has the authority to directly initiate revocation proceedings, staff recommends that the Council direct staff to hold a compliance hearing before the Planning Board prior to scheduling a revocation hearing before the City Council.  As explained in the staff report from May 27 (Exhibit A), Gitana�s conditions of approval contain a specific requirement that the Chief of Police hold a compliance hearing before the Planning Board as an additional step in the revocation process.  If the City Council votes to initiate revocation proceedings, the Planning Board would essentially be acting as a recommending body.  Although the original intent of the conditions of approval was for the Planning Board to first review the history of police activity at the request of the Chief of Police, the Council has now been presented with the information and has the authority to direct staff based upon that information.

Nonetheless, staff recommends that this additional step with the Planning Board be completed to ensure compliance with the intent of the conditions of approval.  The Planning Board would be presented with the information from this report and the attached Police Department report.  The condition of approval states that following the compliance hearing, the Planning Board and/or the City Council may determine that Gitana has not complied with the conditions of approval and may set the matter for a revocation hearing.

RECOMMENDATION:

Staff recommends that the City Council direct staff to schedule a compliance hearing before the Planning Board with the Chief of Police.  Pursuant to Gitana�s conditions of approval, the compliance hearing before the Board would not be a noticed public hearing.  The intent of the hearing would be for the Board to receive input from the Chief of Police regarding police activity at Gitana, and not to receive input from the general public.

If the Planning Board finds that a revocation hearing should occur, staff would recommend proceeding with scheduling a revocation hearing before the Council.  The Burbank Municipal Code only requires that notice of the hearing be provided to the owner of the property on which the conditional use permit is granted at least 20 days prior to the hearing.  However, staff would recommend that in addition to the property owner, notice be provided to the business owner and all residents and tenants within a 1,000 foot radius of the business, consistent with the typical conditional use permit hearing notice requirements.  This would provide an opportunity for nearby property owners and residents to provide input to the City Council regarding the operation of the business.  Staff would further recommend that notice be provided to the business owner 45 days in advance of the public hearing, to allow adequate time to prepare for the hearing.

LIST OF EXHIBITS:

Exhibit A          Staff report dated May 27, 2003 with conditions of approval attached thereto

Exhibit B          Police Department report analyzing police activity

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