Conditional Use Permit Revocation

PURPOSE:

This report recommends that the City Council revoke two conditional use permits that allow the operation of Gitana, the nightclub/restaurant/sports bar located at 260 E. Magnolia Boulevard (Exhibit A).  The report recommends that the Council determine that: 1) the conditional use permit(s) are or have been so exercised by ADRD, Inc. dba Gitana as to be detrimental to the public health or safety; 2) the conditional use permit(s) are or have been so exercised by ADRD, Inc. dba Gitana as to constitute a nuisance; and/or 3) the conditional use permit(s) have been exercised by ADRD, Inc. dba Gitana contrary to the terms or conditions of approval.  The authority to revoke these conditional use permits is found in Burbank Municipal Code Section 31-1952. 

BACKGROUND:

Conditional Use Permit: Gitana operates pursuant to Conditional Use Permit (CUP) No. 99-34, which amended the original CUP No. 98-18.  CUP No. 98-18 was approved by the City Council in 1998 following an appeal of the Planning Board�s decision to approve the permit.  That CUP was modified at the applicant�s request by CUP No. 99-34 in 2000.[1]  The City Council resolutions approving both CUPs and the approved conditions of approval are attached hereto as Exhibits B-1 and B-2.  All exhibits are incorporated into the report by this reference.  Generally, the conditions of approval govern issues such as alcohol service and licensing, hours of operation, noise, the provision of security personnel, and the presence of minors in the establishment.

The approved modifications to CUP No. 98-18, as stated by CUP No. 99-34, were to allow alcohol service beginning at 10 a.m. on Saturday and Sunday, and to allow persons under the age of 21 in the sports bar and billiards areas of the establishment prior to 9 p.m. when accompanied by an adult.  Other conditions of approval were not changed, and the remaining conditions from CUP No. 98-18 were transferred to and restated by CUP No. 99-34.  Because CUP No. 99-34 modified but did not replace CUP No. 98-18, both CUPs are still legally in effect.  Therefore, this report addresses both CUPs together, and recommends that the Council revoke both permits. Hereafter, wherever �CUP� is used in this report, it shall mean Conditional Use Permit No. 98-18 and Conditional Use Permit No. 99-34 collectively, unless otherwise specified.

Gitana was required to obtain a conditional use permit due to Burbank Municipal Code (BMC) 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 use standards of the C-1 zone shall be applied to commercial uses in the project and further require the following of any restaurants located within the project:[2]

• 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 BMC 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 CUP provides the following entitlements as permitted by Planned Development No. 95-1 and the BMC:

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

• operation of a nightclub with a dance floor

• 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

If Gitana�s CUP were revoked in its entirety, all portions of the business would be required to close with the exception of the restaurant.  Restaurants with incidental alcohol are a permitted use in Planned Development No. 95-1 and do not require a conditional use permit.  Gitana sells alcoholic beverages pursuant to a 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.  Therefore, Gitana could continue to sell alcoholic beverages as a restaurant with incidental alcohol, but the nightclub would have to close, the bar area would be allowed to occupy no more than 15 percent of the establishment�s floor area, and no more than two billiard tables would be permitted.  The cigar lounge portion of the business, located along Magnolia Boulevard next to the patio area, has not operated regularly or consistently since the establishment opened.  Because it is permitted under the CUP as a bar area, it too would be required to cease operations.

Conditions of Approval: Condition of approval no. 3(c) of CUP No. 99-34 and condition of approval no. 5 of CUP No. 98-18 provide that:

�The applicant may maintain operation from 10:00 a.m. to 2:00 a.m. seven days a week, as long as there are no substantial adverse impacts on Police Department services during those hours of operation.�

The condition further provides that Gitana can be found in violation of the condition of approval if evidence is presented at a compliance hearing that:

��police services are required to respond to nightclub related incidents during the hours of operation in a disproportionate amount of calls compared to other businesses.�

Condition of approval no. 6 of CUP No. 99-34 and condition of approval no. 20 of CUP No. 98-18 provide that the conditional use permit may be modified or revoked if the City determines that Gitana is:

��detrimental to the public health, welfare, or materially injurious to property or improvements in the vicinity or if the use is maintained so as to constitute a public nuisance.�

These conditions of approval are the subject of this report and these revocation proceedings.[3]  The Council is being asked to revoke the conditional use permits based upon Gitana�s violation of these conditions of approval.  As discussed later in this report, the permits may also be revoked, and staff is recommending such action, based upon the use�s operation as a public nuisance and as a detriment to the public health and safety notwithstanding the condition of approval to that effect.

Recent Media Coverage: At the City Council meeting of April 29, 2003, some City Council members commented on an April 26, 2003 article in the Burbank Leader that referenced the volume of police calls for service at Gitana and the Police Department�s ability to charge for such calls.  Police Department staff indicated at the time that the statistics provided in the newspaper article may have been misleading and not a true reflection of the actual police activity at Gitana.  While the Police Department was concerned about calls for service directly related to Gitana�s operation, they noted that statistics regarding the number of calls for service at or near a particular business are not necessarily an accurate portrayal of the police activity related to that business.  Many of the calls for service at Gitana and the adjacent parking structure, for example, may be for vehicle break-ins or other such incidents that are not related to Gitana or its business operations.  Each incident must be carefully examined to determine the nature of the call and the extent to which it is related to Gitana.  As such, the Police Department began reviewing the police calls for service to establish an accurate picture of the call history at Gitana.

Attention was focused by the media on the Police Department�s seeking cost recovery from Gitana for some of the police calls for service that had occurred at the business as authorized by the CUP.  To date, the Police Department has billed Gitana $7,271.15 for police incidents in excess of three per month that occurred from October 2002 to July 2003.  As of the publication of this report, the Police Department had not received payment from Gitana.

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.  As requested by the Council on April 29, staff provided the Council on May 27, 2003 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 CUP.  At the May 27 meeting, the Council requested that staff proceed with placing the 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.

On July 1, 2003, staff presented to the Council a report prepared by the Police Department analyzing the recent history of police activity at Gitana.  Based upon the results of the analysis, the Chief of Police recommended to the City Council that a compliance hearing be held before the Planning Board, and the Council so directed staff.  The purpose of the hearing was to determine if Gitana has been creating a substantial adverse impact on police services in violation of condition of approval no. 3(c) of CUP No. 99-34 and condition of approval no. 5 of CUP No. 98-18.  On July 28, 2003, the Planning Board held the compliance hearing, which is discussed below in the Analysis section of this report.

Revocation Hearing and Report: Burbank Municipal Code Section 31-1952 requires that the City Council hold a public hearing prior to revoking a conditional use permit.  The Code requires that public notice of the revocation 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.  Therefore, the evidence and analysis included in this report and the attached exhibits are based upon police incidents occurring on or after October 1, 2002 and on or before July 31, 2003, the time period for which the Police Department conducted its review and analysis.  Other information in this report is current as of the publication date of the report, August 28, 2003.  Any significant developments or incidents that occurred during the month of August and/or after the publication of this report will be presented to the Council at the hearing.

In addition to the permittee and property owner, notice of the Council revocation hearing is being published in the Burbank Leader newspaper and provided to all property owners and tenants within a 1,000 foot radius of the property on which Gitana is located 10 days prior to the hearing, consistent with the Code-required conditional use permit hearing notice requirements.  This noticing provides an opportunity for nearby property owners and residents to provide input regarding the operation of the business.  Because the public notice for this hearing is being provided after the publication of this report, any public input received will be addressed by staff at the hearing.

Revocation Standard: BMC Section 31-1952 states that the City Council, after a public hearing, may revoke a conditional use permit on any one or more of the following grounds:

1.      The conditional use permit was obtained by fraud or misrepresentation

2.      The conditional use permit has been exercised contrary to the terms or conditions of approval, or in violation of any statutes, ordinance, law, or regulation not excused by the conditional use permit

3.      The conditional use permit is being or has been so exercised as to be detrimental to the public health or safety or so as to constitute a nuisance

To revoke a conditional use permit, the Council must find that one or more of the above has occurred.  This report recommends that the Council revoke the CUP based on three bases:

1.      The CUP has been exercised contrary to the terms of approval, specifically condition of approval no. 3(c) of CUP No. 99-34 and condition of approval no. 5 of CUP No. 98-18, in that the business has been creating substantial adverse impacts on the Police Department.

2.      The CUP is being or has been exercised as to be detrimental to the public health or safety in that the a) residents are being deprived police services due to the extraordinary amount of police calls responding to Gitana for alcohol related and other criminal activity; and b) residents are being deprived police services due to the type of criminal activity occurring at Gitana which sometimes demand a response by a majority of the entire police force on duty in the evening.

3.      The CUP is being or has been exercised as to constitute a nuisance as evident by the primary and secondary effects of the operation of the business.  Specifically, significant criminal activity has occurred which adversely impacts nearby commercial and residential uses; which creates a magnet for illegal activities; which results in excessive police service; and which results in traffic violations and police detentions and arrests.

ANALYSIS:

Police Department Review: The Police Department analyzed all of the police calls, including officer-initiated actions, to Gitana and the immediate vicinity, or otherwise related to the business (e.g. off-site incidents involving intoxicated Gitana patrons), from October 2002 to July 2003 and evaluated the extent to which the calls were related to the business.  The reports analyzing the calls are attached hereto: a report analyzing all calls from October to May (Exhibit C-1) and a second report analyzing all calls from June and July (Exhibit C-2).

The Police Department determined that a total of 73 police calls for service that were linked to Gitana occurred during the ten-month period.  These calls included incidents such as assaults with a deadly weapon, fights, and driving under the influence of alcohol.  The attached reports, the first of which was previously presented to the City Council on July 1, include a complete list of all of the police calls for service related to Gitana, and a brief analysis of each incident.  Because this staff report is being published in August, statistics beyond July 31 are not included herein.  Again, any notable incidents occurring during the month of August and/or after the publication of this report and before the City Council hearing will be discussed at the hearing.

Based upon the frequency and nature of the police calls for service during the period from October 2002 to July 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 requested in his report that the Planning Board conduct a compliance hearing pursuant to the CUP conditions of approval. 

Planning Board Compliance Hearing: On July 28, 2003, the Planning Board held the compliance hearing.  The minutes of that meeting are attached hereto as Exhibit D.  All of the questions posed by the Board members and the responses from the Police Department, Planning staff, and the applicant are included in the meeting minutes.  Some of the information provided by the Police Department is summarized below; other information from the Police and the applicant is included throughout the Analysis section of this report under the appropriate topic.

In response to questions from Board members, the Police Department provided the following additional information:

• The Police Department is of the opinion that Gitana employees are not exercising proper care when over-serving intoxicated patrons.

• The Police Department has received some complaints from residents of the senior apartments regarding outside noise related to Gitana.  However, the Police Department has found that some of the complaints have been for noise from activities in the parking garage or outdoor areas that are not necessarily related to Gitana or its patrons.

• Gitana typically attracts more patrons during sports playoffs times and other similar events.  The increased patronage during these times typically results in increased police calls.  The Police have not found that the incidents at Gitana are otherwise related to promotional or other special events; the problems are ongoing during regular business.

• Because Gitana is now charged for all police calls in excess of three per month, there is a well-founded concern that there may be a disincentive for Gitana to report incidents to the Police.  The Police Department is aware of at least one incident in which a patron asked Gitana security to contact the Police regarding an incident that had occurred at Gitana and was told by security to go home.  She came to the Police station the following morning to file a report.

In their statements to the Board during oral communications and in response to questions raised by the Board, Gitana�s representatives presented their view of the incidents and problems at Gitana and provided the following information:

• Gitana�s owners believe that some of their patrons leave the establishment and continue drinking on their own in the parking structure.  They believe that some of the violence and other incidents are caused by this additional drinking and problems that arise outside of Gitana and are beyond their control.  They do not believe that they should be held responsible for such activities.

• Gitana�s owners stated that they were not made aware of the police department�s ongoing problems with the establishment until April 2003 when the first bill was issued for reimbursement of police costs, even though data was collected beginning in October 2002.  They further stated that they have not yet been given an opportunity by the City to correct the problems, and that recent increases in security and management awareness will improve the situation and eliminate the need to revoke the CUP.  The management recognizes that there is a problem and are taking steps to correct it.

• The nightclub portion of Gitana is open only on Friday and Saturday from 10 p.m. to 2 a.m., and alcohol service stops at 1:30 a.m.  The business is generally empty until around 10 p.m. when most of the patrons arrive.  On Friday there are typically 150 to 250 people present in the nightclub, and 300 people are typically present on Saturday.  There is no live entertainment in the nightclub.

• During sporting events, the number of patrons increases.  If any problems arise during sporting events, alcohol service is suspended.

• Gitana representatives acknowledged that they had not yet paid the police department invoices.  They stated that one of the business partners is currently out of the country, and that all business partners must discuss and agree upon the method of payment before any payments are made.  Again, as of the publication of this report, no payments had been received by the Police Department.

During their deliberations, Board Members specifically commented on several issues, which are highlighted below.

• Some Board members expressed their concern about the number of officers required to respond to many of the incidents at Gitana and the fact that such responses took police resources away from the rest of the City.

• Some Board members commented on the inability of Gitana management to control the activities at the establishment and their need to be more proactive in addressing the problems that have occurred.  Some Board members suggested that Gitana prepare a professional security program to address the provision of private security personnel, and that the program be submitted to the City Council for review.

• Some Board members expressed their opinion that it should not be the City�s responsibility to shoulder the burden of the negative impacts created by Gitana�s efforts to build a successful business.

• Some Board members pointed out at the parking structure in which many of the violent incidents have occurred is a parking structure that is shared by other businesses in the development and used for general public parking.  The Board was concerned that patrons of other businesses may be affected by the incidents originating at Gitana.

• Some Board members noted the physical layout of Gitana and its relation to the parking structure.  Some members speculated that the multiple entrances to Gitana, the ability of patrons to travel between the various indoor and outdoor areas of the establishment, and the relatively direct and proximate access from the Gitana patio to the parking garage may contribute to the problems.[4]

All of the Board members stated their opinion that there was enough evidence presented for them to make a determination that Gitana is having an adverse impact on the City�s police services.  Several Board members shared the Police Department�s concerns about the potential for additional violence at Gitana and the potential for serious injury or loss of life resulting from such incidents.  The Board voted unanimously (5-0) to determine that Gitana has created a substantial adverse impact on the Burbank Police Department and that the matter be set for a CUP revocation hearing before the City Council.

Evidence Evaluation: Pursuant to the terms of the condition of approval, the Planning Board based its determination upon the Police Department evidence that �police services are required to respond to nightclub related incidents during the hours of operation in a disproportionate amount of calls compared to other businesses.�  By the terms of the condition, this evidence is required only for the Planning Board compliance hearing.  However, this evidence provides additional analysis of the police calls for service to Gitana and provides the Council with additional insight into the volume and nature of incidents related to Gitana.  Therefore, staff has included all of the evidence presented to the Planning Board, and provided additional information in response to questions raised by the Board at the compliance hearing.

Disproportionate Number of Calls:

To compare Gitana to other businesses in the downtown area, the Police Department reviewed the total number of police calls for service in the downtown area bounded by Interstate 5, Verdugo Avenue, Glenoaks Boulevard, and Burbank Boulevard during the period from October 2002 to June 2003 and between the hours of 10 p.m. and 3 a.m. each day.[5]  As discussed in the attached memo and demonstrated by the incident data (Exhibit E), the number of police incidents at Gitana comprises a substantial portion of the total calls in the downtown area.  During the dates and times reviewed, Gitana and the adjacent parking structure had a total of 59 police calls for service requiring 191 officers to respond.[6]  During the same period, the entire downtown area had 454 total calls for service during the hours studied.  Again recognizing the limitation of looking only at raw statistics, Gitana and the adjacent parking structure accounted for about 13 percent of all police calls in the downtown area.  Given the number of businesses in the downtown area, this volume of calls is disproportionate to the number of calls generated by other businesses.

To compare Gitana directly to a similar type of business, the Police Department looked at the number of calls to which officers responded at Burbank Bar and Grill, a restaurant and bar with live entertainment located at 112 N. San Fernando Blvd.[7]  During the same time period, that establishment generated 13 calls for service requiring a total of 30 officers to respond, accounting for about three percent of the total calls for service in the downtown area.  This demonstrates that Gitana generates a larger call volume and typically generates incidents that require a larger police response.  The number of officers frequently required to respond to Gitana-related incidents at the business itself and in the adjacent parking structure is significantly greater than the number of officers required to handle incidents at other locations.  This is indicative of the nature of the incidents at Gitana which sometimes involve fights and other serious incidents not common to other downtown establishments.

To further identify Gitana�s impact on the City�s delivery of police services, the Planning Board inquired about how many officers are typically on duty in the City on Friday and Saturday nights.  The Police Department representative indicated that between 10 p.m. and 3 a.m. on Friday and Saturday, as many as 18 officers may be on duty at any given time.   As shown in the attached police reports, many of the incidents at Gitana required more than 10 officers to respond, and some incidents required as many as 17 or 18 officers to respond.  This evidence clearly shows the impact that Gitana has on the City�s police services, as a majority of the officers on duty in the City are sometimes required to respond to Gitana.  In a few of the most serious incidents, it is possible that every officer on duty in the City at that time was required to respond to Gitana.  Such a response jeopardizes the Police Department�s ability to quickly respond to other incidents in the City, and reduces the department�s ability to serve the City as a whole.

During the discussion of comparing Gitana to other downtown businesses, the Planning Board inquired about how many businesses in the downtown area sell alcoholic beverages.  Staff did not have that information available for the Board, but has since contacted the Department of Alcoholic Beverage Control and obtained that information.  In the downtown area bounded by Interstate 5, Verdugo Avenue, Glenoaks Boulevard, and Burbank Boulevard, a total of 34 establishments currently sell alcohol for on- and off-premises consumption as follows:

These statistics show that Gitana is one of 20 establishments in the downtown area with a Type 47 license.  Although it is one of only two businesses with a conditional use permit to operate a nightclub, the data show that numerous other businesses in the downtown area sell alcohol for on-premises consumption and do not experience the same volume and nature of police calls as Gitana.

DUI Arrests:

One of the questions raised by the Planning Board was in response to Police Department evidence about other police calls in the downtown area.  The Board inquired about whether arrests for persons driving under the influence of alcohol (DUI) were tabulated by the establishment at which the driver had been drinking.  At that time, the Police Department had only tabulated DUI information specifically related to Gitana.  Police Department representatives testified to the Board that although the data was not readily available, they believed that Gitana had a higher DUI rate than other businesses in the City.

In response to the Planning Board�s inquiry, the Police Department compiled data on the drinking location of drivers for all DUI arrests in the City from October 2002 to July 2003, based upon information provided by the drivers at the time of their arrest.  As shown in the attached memo (Exhibit F), the Burbank Police Department made 196 DUI arrests during the ten-month period studied.  Of those 196 arrests, 26 of the drivers (about 13 percent) indicated that they had been drinking at Gitana.  The statistics provided by the Police Department show that Gitana had more patrons arrested for DUI than any other business in the City, and had more than four times as many patrons arrested for DUI than the next highest commercial establishment (not including those who had been drinking at home or at a friend�s house).  As with the other statistics, this data clearly demonstrates that police services are required to respond to incidents related to Gitana more so than other businesses in the City. 

Hours of Operation:

Condition of approval no. 3(c) of CUP No. 99-34 and condition of approval no. 5 of CUP No. 98-18 further state that the incidents must occur during the business hours of operation.   By the terms of the CUP, Gitana is permitted to be open for business from 10 a.m. to 2 a.m. seven days per week.  At the Planning Board hearing, Gitana�s representatives indicated that the nightclub is generally open on Friday and Saturday nights only from 10 p.m. to 2 a.m.  A review of the 73 total police incidents related to Gitana showed that they occurred with the following distribution by time:

The majority of the police activity related to Gitana occurred during the establishment�s business hours prior to 2 a.m.  Some incidents occurred after Gitana closed at 2 a.m., but the incidents were clearly related to Gitana�s patrons disbursing following the close of business.

Nightclub Related:

Finally, the condition of approval states that the incidents must be �nightclub related.�  Many of the police incidents occurred in the parking structure and on Gitana�s patio rather than in the establishment itself.  While the evidence demonstrates that all of these incidents are directly related to Gitana, the evidence does not show whether the involved patrons were specifically in the nightclub portion of the business.  For those arrested for driving under the influence, it is unknown whether the drivers were drinking in the nightclub or in other portions of the establishment.  However, alcohol is served in the nightclub area and the other areas of the establishment and patrons are able to travel between the nightclub and other areas of the business.  The bar and nightclub portions of Gitana were entitled as, and generally function as, a single unified establishment.

The front portion of Gitana facing Magnolia Boulevard includes the full-service restaurant and sports bar area, which are separated by a wall as required by the CUP.  The wall has an opening to allow passage between the restaurant and bar, but the two portions of the business are largely separated.  In front of the bar is an outdoor patio area upon which bar patrons frequently congregate.  Access to the patio area is controlled and alcoholic beverages are available in the patio area.  Behind the main bar area toward the rear of the establishment is a billiards area that functions as part of the sports bar and includes multiple billiards tables.  The main bar area and billiards area are not separated from one another, and patrons may freely move between the two areas.  Behind the billiards area at the rear of the establishment is the nightclub portion of the business.  The nightclub is fully separated from the bar by a wall and the main entrance to the nightclub is on the exterior from the paseo along the side of the building.  However, there are two doors that provide access between the nightclub and bar/billiards area, which allows patrons to travel between those areas.  In front of Gitana next to the patio is an indoor cigar lounge/bar area that is separated from the rest of the establishment.  This area was permitted under the CUP as a bar area, but has not operated regularly or consistently since the establishment opened.

The presence of the nightclub and the nightclub atmosphere at Gitana attract some of the crowd that is involved in fights and other incidents requiring police response.  The primary need for Gitana to obtain a conditional use permit was for the sale of alcoholic beverages in conjunction with other activities, and staff believes that alcohol is the key factor in most of the incidents.  The environment created by the nightclub and the presence of alcohol throughout the establishment results in the type of incidents to which the police department has responded.  Therefore, the majority, if not all, of the police activity related to Gitana could be considered �nightclub related,� whether or not the incidents actually occurred within the nightclub.

As discussed above, the majority of police incidents occurred during the hours of nightclub operation between 10 p.m. and 2 a.m.  The applicant has indicated that the nightclub is generally open only on Friday and Saturday nights.  Staff looked at the distribution of police incidents by day of the week to determine if more incidents occurred on the nights that the nightclub was open.  The distribution by day is as follows:

The above table shows that the majority of police incidents occurred on Friday, Saturday, and Sunday.  Staff notes that many of the Sunday incidents occurred between the hours of midnight and 2 a.m. and are attributable to the Saturday night crowd.  The data show that a greater number of police incidents occur on nights when the nightclub is open, showing an additional connection between the nightclub crowd and the police incidents.  Business activity is typically greater on weekends than weekdays for any type of social establishment, which would account for some increase in weekend patrons and the number of police calls.  However, the sharp increase in incidents on weekends over weekdays is indicative of the type of crowd that is drawn to the establishment on weekends when the nightclub is operating.

If Gitana�s CUP were revoked, Gitana could continue to sell alcoholic beverages as a restaurant with incidental alcohol.  Staff believes that the restaurant environment would not attract the same crowd as the bar and nightclub, and would not result in the same types of problems.  Although alcohol is the key factor in most incidents, it is the combination of alcohol, the nightclub crowd, and the resulting environment that lead to violence and other problems.  If the alcohol were served only in a full-service restaurant setting with a restaurant crowd, staff does not believe that the same types of problems would result.

Public Nuisance and Detriment to Public Health and Safety: The information provided throughout this report and in the exhibits attached hereto provides evidence that Gitana operates as a public nuisance and to the detriment of the public health and safety.  A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal (California Civil Code Section 3480).

Gitana has risen to the level of a public nuisance as is evident by its impact on the City�s police services as discussed throughout this report.  Gitana creates a substantial impact on the Burbank Police Department through incidents that occur inside and around the business, in the adjacent parking structure, and on streets throughout the City.   On numerous occasions, police officers have responded to fights, felony assaults, and other such serious disturbances inside and around Gitana, and in the adjacent parking structure.   A few of the incidents included the use and/or seizure of weapons.  In at least one incident, Burbank Police officers sustained minor injuries as a result of their attempts to control a situation.  Numerous arrests have been made for persons driving under the influence of alcohol after drinking at Gitana in and around the adjacent parking structure, and at other locations on public streets around the City.

Many of these incidents required response by the vast majority of officers on duty at one time in the entire City, and required officers to remain on scene for up to one hour to restore order.  The safety of the entire community is jeopardized by the ongoing and significant involvement of the Police Department at incidents related to Gitana.  Such incidents restrict the Police Department�s ability to quickly respond to emergency incidents elsewhere in the City, sometimes for prolonged periods of time.  The processing of arrested subjects, incident reports and paperwork, and treatment of injured officers further consume police officer resources and hinder the Police Department�s ability to respond to incidents throughout the City long after a Gitana incident has been resolved.  Such incidents also directly impact the neighborhood and the residents, patrons, and businesses around Gitana by exposing them to the noise and commotion associated with the incidents, and placing them at risk of becoming inadvertently involved in a dangerous or violent situation as an innocent bystander.

Based upon the information presented in this report, it is also evident that Gitana is operating as a detriment to the public health and safety.  As noted above, some of the incidents at Gitana require response by the majority of police officers on duty at a given time.  This threatens the general public safety by preventing police officers from responding in a timely manner to emergency situations elsewhere in the City.  Further, as discussed above and noted by some of the Planning Board members at the compliance hearing, the parking structure in which many of the violent incidents have occurred is utilized by other businesses and the general public.  The violent situations are a threat to the public health and safety in that innocent bystanders may be inadvertently injured, particularly if weapons are involved.  The large number of intoxicated patrons (as evidenced by the number of arrests) that have attempted to drive after drinking at Gitana are a serious threat to the public safety due to their increased likelihood of causing a traffic collision.

Gitana�s Response to Problems: In response to inquiries from the Planning Board, the Police Department indicated that Gitana�s owners and operators have been in regular communication with the Police Department since before the business opened.  The Police indicated that Gitana has always been very responsive to the Department�s concerns and has worked closely with the Department to properly train its employees and attempt to address any problems that arise.  Recently, Gitana has been contacting the Police Department every Monday morning to discuss any incidents that may have occurred over the weekend.

Despite the continued cooperation of Gitana with the Police Department and the apparent attempts to mitigate problems, violent incidents and other police calls have continued at the establishment.  Although Gitana representatives claimed at the Planning Board hearing that the number of monthly calls for service has declined in recent months, the data do not reflect this trend, as shown in the following table.

Although the month of July had relatively fewer calls than some other months, some previous months also had relatively low numbers of calls, followed by months with many calls.  Additionally, one of the calls in July was for a fight that required 15 officers and the air unit to respond.  Therefore, one month of few calls is not necessarily indicative of a trend toward a decreased potential for violence or lower volume of police calls.

Gitana representatives indicated that they have recently increased their security personnel and are actively working to address the Police Department�s concerns.  However, as indicated by the incident data, such efforts have not improved the situation or reduced the number or severity of police calls.  Police Department representatives indicated at the Planning Board hearing that in their opinion, the root of the problems at Gitana is the type of clientele that Gitana attracts and the establishment�s inability to mitigate problems when they arise.  Gitana�s unsuccessful attempts to address the continuing problems at the establishment are indicative of the management�s apparent inability to control their patronage or effectively intervene when incidents occur.

CONCLUSION:

Based upon the frequency and nature of the police calls for service during the period from October 2002 to July 2003 and the number of police officers that are often required to respond to the incidents, the Chief of Police has determined that Gitana is �creating a substantial adverse impact on the City�s police services.�  Based upon the evidence presented by the Police Department, the Planning Board agreed with this assessment at its compliance hearing, and voted to forward this matter to the City Council for a revocation hearing.  Staff concurs with the findings of the Police Department and the Planning Board, and believes that Gitana is operating in violation of its CUP.  Staff further believes that Gitana is operating as a public nuisance and to the detriment of the public health, safety, and welfare as a result of its impacts on the City�s police services and the threats that the violent incidents and intoxicated drivers pose to other persons in the vicinity of Gitana and throughout the City of Burbank.

As an alternative to revocation, the City Council may consider amending Gitana�s conditions of approval, revoking certain privileges under the permit (e.g. revoking the ability to operate a nightclub but allowing Gitana to continue operating a bar), and/or allowing the permit to continue on a trial basis subject to periodic review by the Council, should the permittee agree to such conditions.  However, based upon the frequency and severity of the incidents at Gitana and the management�s apparent inability to control or improve the situation, the Police Department and the Planning Division recommend that the Council revoke Gitana�s CUP in its entirety.  The Police Department and Planning staff believe that the most effective way to mitigate the ongoing problems at Gitana and reduce the potential for violence is to require the nightclub, bar, and billiards portions of the establishment to cease operations.

This report, and staff�s recommendation regarding revocation, is based entirely upon the conditions of approval related to police activity and Gitana�s operation as a public nuisance and as a threat to the public health and safety.  Based upon the evidence presented by the Police Department at the Planning Board compliance hearing and in the attached reports, staff believes that Gitana poses a substantial threat to the public health and safety based upon the police activity and incidents related to the establishment.  Staff believes that Gitana�s violation of the related conditions of approval and its continued operation as a public nuisance provide ample evidence to justify revocation of the CUP.  Further, staff believes that the exigent nature of the situation is such that the City Council should take action as soon as possible to address this situation.

Rather than undertake an exhaustive review of all of Gitana�s conditions of approval, staff focused only on the police activity related to Gitana since October 2002 in order to have this matter considered by the Council as quickly as possible.  The Police Department expressed to the Planning Board their real concern for a potential loss of life at Gitana due to the violent nature of some of the incidents that occur there.  As noted by the Chief of Police in his July 1 memo, Gitana is, in his opinion, �the single most likely venue for violence within the City of Burbank.�  Due to this concern, it is staff�s desire to expedite this matter and avoid delay in the Council�s consideration of this issue.  As reflected in the proposed resolution, staff recommends that if the City Council votes to revoke the CUP, such action become effective immediately.  The nightclub, bar, and billiards portions of Gitana would then be required to cease operation immediately.  This action would eliminate the possibility of further violent activities related to the nightclub, bar, and billiards portions of the business.

 RECOMMENDATION:

Staff recommends that the City Council adopt the proposed resolution to revoke Conditional Use Permit No. 98-18 and Conditional Use Permit No. 99-34.  Staff recommends that the Council determine that:

     1.      the conditional use permit(s) are or have been so exercised by ADRD, Inc. dba Gitana as to be detrimental to the public

             health or safety;

     2.      the conditional use permit(s) are or have been so exercised by ADRD, Inc. dba Gitana as to constitute a nuisance; and/or

     3.      the conditional use permit(s) have been exercised by ADRD, Inc. dba Gitana contrary to the terms or conditions of

            approval. 

As proposed by staff, the revocation would be effective immediately upon the action by the City Council.  Gitana would be required to immediately cease operation of its nightclub, bar, and billiards areas and could continue operating only as a restaurant with incidental alcohol.

go to the top