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HomeMy WebLinkAbout08-21-1995 PC MinutesLaSc~~%, ~.~1' MINUTES Planning Commission City of Orange PRESENT: Commissioners Bosch, Cathcart, Pruett, Romero, Smith ABSENT: None STAFF PRESENT: Joan Woltt, Senior Planner; Stan Soo-Hoo, Assistant City Attorney,Jack Brotherton, Sr. Civil Engineer - Subdivision, and Sue Devlin, Recording Secretary PLEDGE OF ALLEGIANCE August 21, 1995 Monday - 7:00p.m.IN RE: APPROVAL OF MINUTES FOR THE AUGUST 7 1995 PLANNING COMMISSION MEETING Moved by Commissioner Pruett, seconded by Commissioner Smith, to approve the Minutes of August 7, 1995 as recorded.AYES: Commissioners Bosch, Cathcart, Pruett, Romero, Smith NOES: None MOTION CARRIED IN RE: NEW HEARINGS 1 - VESTING TENTATIVE PARCEL MAP 94-185 -I.C.I. DEVELOPMENT CORP. A request to subdivide a property into two separate parcels, with one building on each parcel. No additional development is proposed through this application. The property is located at the southeast corner of Chapman Avenue and Yorba Street (Lucky Supermarket Center). NOTE: This project is categorically exempt from California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15323. There was no opposition; therefore, the Lull reading of the staff report was waived. The public hearing was opened. Applicant Scott Bell, partner with the company that owns the property, appreciated a favorable response. It appears Lucky will be relocating its store to Santa Ana and because of the nature of their lease, they need a vesting map to protect the approval rights they currently have. They have 1 1/2 years left on the lease. The public hearing was closed. It was noted the project was categorically exempt from CEQA review. 1 Planning Commission Minutes August 21, 1995 Moved by Commissioner Cathcart, seconded by Commissioner Bosch, to recommend to the City Council to approve Vesting Tentative Parcel Map 94-185 with recommended conditions 1-6, including the notes listed on the applicant' s plan.AYES: Commissioners Bosch, Cathcart, Pruett, Romero NOES: Commissioner Smith MOTION CARRIED J/2 -CONDITIONAL USE PERMIT 2123-95 -CON-WAYWESTERN EXPRESS ( C/ C/S ARCHITECTS,INC.)A request to expand an existing truck terminal by adding additional loading bays and associated office space. The property is located at 2102 North Batavia.N TE: Negative Declaration 1475-95 has been prepared to address the environmental impacts of this project.No opposition was expressed. The full reading of the staff report was waived and the public hearing was opened.Applicant Jeff Carlile, architect, 2450 Dupont Drive, Irvine, hoped the Commission would approve their request.Based on the current function Tor the property now, it is a truck facility. They want to expand for more trucks to come in. Office improvements include a drivers' lounge and restrooms. The public hearing was closed.Moved by Commissioner Cathcart, seconded by Commissioner Smith, to approve Negative Declaration 1475-95 and find there is no substantial evidence that the project will have a significant effect on the environment or wildlife resources.AYES: Commissioners Bosch, Cathcart, Prueri, Romero, Smith NOES: None MOTION CARRIED Moved by Commissioner Smith, seconded by Commissioner Cathcart, to approve Conditional Use Permit 2123-95 with all the conditions listed in the staff report. AYES: Commissioners Bosch, Cathcart, Pruett, Romero, Smith NOES: None MOTION CARRIED 3 -CONDITIONAL USE PERMIT 2111-95 -THE NEW YOUNG AMERICANS, INC.A request to allow the use of an existing community recreation building for bingo as fund raising fora non-profit organization. The property is located at 2190 North Canal Street, at the Super Sports recreational complex.N TE: This project is categorically exempt from California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15323.Chris Carnes, Associate Planner, presented the Tull stab report. The applicant is requesting to use an existing cafeteria/auditorium building Tor the operation of a bingo game for fund raising purposes. The funds raised by the bingo operation will be used Planning Commission Minutes August 21, 1995 tax exempt corporation which operates a National training program for entertainment skills, such as dancing and singing. The applicant has been operating the last year out of Canyon High School, north of the City of Orange. The applicant is proposing to use two of the large rooms in the existing building for the bingo operation. The rooms are estimated to have a capacity for 200-250 persons to play bingo. The Planning Commission, last year, approved the conditional use permit to allow this Tormer school site to be used for Super Sports, which included in that approval the use of the building as a community facilities building. Staff's analysis of the proposal found there is adequate on-site parking for the use, and it will not have an adverse impact on traffic in the area. The applicant's proposal does include providing on-site security, in addition to the security that is required for the Super Sports site. The Police Department has reviewed the proposal and included two recommended conditions of approval: one of which is an on-site security person; and the second, that there be no advertising of bingo on the site.Commissioner Pruett said the Commission approved the Super Sports facility and created a public use facility. The applicant is proposing to sign a lease with Super Sports for the use of the facility for bingo. He assumedit was a year's lease. Has staff had any discussions with the applicant or Super Sports from the standpoint of how the public use facility is going to be used and by whom? It will limit public use of the facility. Is there a process established by which the facility was reserved for activities in the community?Will a problem be created for other users in the City?Mr. Carnes responded the applicant's proposal only ties up the building for one night aweek -- Thursday nights, from 6 to 10 p.m. There is nothing to prevent other uses from using the building on Thursdays during the day or on other nights during the week. The applicant's long-term lease is to use one of the small offices that is in the building. They will have occasional entertainment spotlight nights in the building, but there is nothing to prevent other uses in the building as well ( except on Thursday nights).Staii has included a recommendation to revise condition 2 to include a specific termination date Tor the proposal. The termination date would be December 1, 1996. This will allow the applicant to operate bingo games for one year. Prior to the expiration date, the applicant can re-submitfor a new C. U.P. to allow the operation to continue.Commissioner Pruett thought it would be appropriate to know what the level of interest was in the facility and who was turned away on Thursday nights. This information could be obtained from Super Sports and the Commission would know what the community use of the facility is. It concerned him they were blocking out a sector of the community that might have a use for the fadlity.Commissioner Smith wanted to know what the law for smoking was during bingo and how it would apply to this particular operation.Mr. Carnes said from the recent approval of the senior citizens project, it was determined the smoking regulations are a state law and how it was implemented was up to the enforcement of the state. The applicant proposes to have two spaces in this particular building. One is for smoking and one is for non-smokers. They will be separately ventilated.Commissioner Smith wanted to know the business address of the Young Americans. In what city do they do business?Mr. Carnes responded the applicant's address is in Los Angeles.Commissioner Romero wanted to know how difficult it would be to keep records of Thursday nights activities? Could that record of request be accomplished easily?Mr. Carnes said they could request a record from Ken Hawkins, who is running theSuper Sports facility.He didn't know how easy it would be to follow up on someone who requested the facility Planning Commission Minutes August 21, 1995 Commissioner Romero was led to believe smoking was not allowed in a room for bingo on another issue they heard in the past. Is smoking gang to be part of the allowed activity of the room? Mr. Soo-Hoo responded. The state law that went into effect January 1, 1995 prohibits smoking from all enclosed places of employment. In that law there is a specific exemption for bingo operations. That exemption is effective until the earlier of either January 1, 1997 or upon adoption of certain room ventilation standards by either the State OSHA or Federal EPA. Right now, bingo operations are allowed to smoke.The public hearing was opened. Apolicant Cameron Coy, 3231 Cheviot Vista Place #303, Los Angeles, slated the Young Americans have been situated in Orange County Tor at least the last 15 years. They have been at Canyon Hills High School in Anaheim Hills for the past academic year. Prior to that, they used the facilities at Brea High School. The center at Super Sports is a nice complex and is a success. Young Americans are school aged kids from the ages of 15 to 20 who are performers (not professional). They put together groups through auditions and then tour out on the road. They go into different schools and work with the kids throughout the country for 21/2 days in performance, dance and singing. Then they put on a show at the end of the third night where they incorporate kids into the show. They have a need for fund raising and that is the reason for wanting to start bingo. The facility at Super Sports has one room behind the stage that would be designated for non-smokers and the larger room would be used for smokers. About 80°/, of the bingo players are smokers, based on his recent research. Personally, he was not a fan of smoking, but he will be at the facility to run the bingo operation. He has read all the rules, regulations and ordinances that governs bingo operations in the City of Orange and feels confident they can abide by them and make the proper reports that are necessary.Commissioner Smith asked how the Young Americans presence in the bingo operation benefit students in Orange?Mr. Coy said there were a number of things they have done at Canyon High School, as well as a tour is going out this Fall. There is no reason why they couldnY do a similar project with Orange Unified School District and put on workshops for interested students. It would be very worthwhile to have the Young Americans positive presence and what they have to offer to the local community. Young Americans is a well known organization not only in the country, but in Japan and Europe as well.Chairman Bosch addressedMr. Coy's attention to the lay out of the building. The large multi-purpose room adjacent to the stage (tor smokers) is adjacent to the two major entrances into the building, which also serve to provide the access for roller hockey patrons at the site to reach the roller hockey office and skate shop. In other words, they are sharing access on Thursday nights and sharing the restrooms with the bingo patrons at the same time. So there is a juvenile population that is mixing at least at the entry and is exposed into the main bingo room during the proposed early hours of operation. How would you intend to preserve appropriate separation of the juveniles from the bingo operation?Mr. Coy hadn't thought about the specifics of that, but was sure there were ways they could put up some type of partition. They would probably have one entrance only designated as a bingo entrance, where the patrons would buy the bingo cards as they came in. The bingo crowd is an older crowd, primarily female.They could take steps to put up some type of partition to address that concern.Chairman Bosch was concerned they were introducing and potentially mixing into the building, unless there is such a physical barrier, which would still have to meet building code and fire regulations, to make sure there Planning Commission Minutes Those soeakinc in oooosition August 21, 1995 Barbara DeNiro, 1118 East Adams, said people were still getting golf balls in their yards. She loved the Commissioners' comments about their concerns; she shared the same concems. Previously, the criteria included that the site be owned or occupied by an applicant Tor at least 36 months prior to tiling for a C.U.P. to hold bingo games. They have not been located in the City of Orange even though they may have participated in activities here. Page 5 of the staff report states bingo games are open to the public at the Orange Senior Citizens Center. However, unless the Commission knew something she didnY, that bingo is not played for money nor is there smoking yet. That hearing comes before the City Council Tuesday evening. Is that statement true? (The City Council has not approved the application at this time; therefore, ii bingo is occurring, it is not in accordance with the City's ordinances. To staff's knowledge, there is no bingo.) Therefore, the cart is before the horse. The address of the Young Americans is Canyon High School, which is located in Anaheim. Why arenY they applying for this permit in Anaheim rather than in Orange? Is this facility no longer considered a public facility building? How does the law of the State apply regarding regulating smoking in the work place and public places? Mr. Soo-Hoo answered the question, but we keep making all these exemptions. She was not sure what was going on.Apparently bingo attendance has only dropped off 20% at Canyon High School since the smoking ban went into effect. She was curious why the Young Americans would choose this type of fund raiser now when they state they are already self-sufficient in their finances. Does bingo and smoking by adult participants set a positive role model and does it preserve the general welfare of the users? This is a publicly owned and then leased primary sports facility of which public facilities and such are virtually smoke tree.Rebuttal Mr. Coy added smoking offends him and he would be happy if smoking were banned at all bingo games.But the fact of the matter is that at the present, it is allowed and patrons will go to places where smoking is allowed.Commissioner Smith asked who actually hosts and works the bingo games?Mr. Coy said it could not be members under the age of 18, but the parents and kids over 18 volunteer their time.The public hearing was closed.Commissioner Cathcart had a problem with this, but not against the YoungAmericans. It's a great organization. They seem to be dancing around looking for a home that would allow them to take their money and go do their thing in other communities. Having worked and lived in the City of Orange for quite some time, he knew there were a lot of non-profit charitable organizations in the City that are in need of such facilities. He would hesitate in giving up even one day a week of a public facility that perhaps is a good location for bingo and fund raising to an organization that doesn't spend their money here in the City and isn't one of the typical organizations that all of us have volunteered for.Commissioner Smith said that although the Young Americans benefit the community at large by promoting music and the arts, she did not think the bingo proposal would benefit the youth in the community of Orange speciTically enough to warrant giving up a facility for the use of non-profits and groups in Orange.Commissioner Pruett also was concerned about the youth. Typically, when looking at schools as bingo facilities, school activities are not taking place in the evenings. This facility was designed to serve young people in the community, as well as the adults. But, primarily the youth from the standpoint of soccer Tields, roller hockey, and a variety of other activities that are directed towards children or young adults.This is not the best Location for this Planning Commission Minutes August 21, 1995 Commissioner Romero shared the same concems. His son is a roller hockey participant and is asthmatic; he's very allergic to cigarette smoke. Any use of the restrooms would cause an asthmatic condition. Chairman Bosch voiced the same concerns as well. The Young Americans is a great organization, but that is not the finding the Commission needs to make. This is not a service required by the community, as are many of the social service oriented organizations that may have applied for bingo operations or other charity operations in the City in the past. There is a specific plan for this site that was approved for the master lessee with the school district that promotes a broad spectrum of community-related recreational related activities. This adult only activity is not compatible to the nature of what they intended to occur on the site. Finally, there is general welfare vs. individual welfare and he didnY see the bingo operation on the site would preserve the general welfare of the City of Orange. It preserves the individual welfare of the particular applicant only in this case (the use on the site). He couldn't find the legally required findings to support the proposal. It would severely hinder the approval of the original application if bingo were to be considered among the mix of uses for the site.It was noted the project was categorically exempt from CEQA review.Moved by Commissioner Cathcart, seconded by Commissioner Pruett, to recommend to the City Council to deny Conditional Use Permit 2111-95 because of a lack of proper findings, in addition to the specific reasons voiced by the Commission.AYES: Commissioners Bosch, Cathcart, Pruett, Romero, Smith NOES: None MOTION CARRIED IN RE: CONTINUED HEARIN 4 -ORDINANCE AMENDMENT 1-95 - CITY OF ORANGE A proposed ordinance amendment modifying provisions of the Orange Municipal Code Title 17. 36 "Sign Regulations", more specifically relating to the length of time allowed for display of banners and A-frame signs and conditions for such display.NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15311 of the State CEQA Guidelines.This item was continued from the June 19, 1995 hearing.)Chairman Bosch explained the continuance was requested to provide both the Planning Commission and the applicant the opportunity to do some more research and to consider specific thoughts at the last hearing. It was noted the majority of the Planning Commission participated in a scheduled and correctly noticed joint study session with the City Council to review existence of signage on Katella, Tustin and Chapman corridors last Tuesday afternoon to assist in the review of the proposed ordinance amendment.The public hearing was re-opened.Bruce Patrick, 1733 North Modoc Street, has a small business in the Target shopping center across from the Mall of Orange. He tried to give the Commission some overview detail of what was described in the document; an overview of what they're trying to accomplish and why. The proposed revised temporary sign and banner ordinance was attached. The proposal was developed by a large committee comprised of the retail community and City staff. It was an indication of their intent to try and develop a proposal that is practical for the City of Orange. This will benefit the City of Orange. Specifically, it is a request to replace what now is a temporary sign and banner ordinance that no longer works in the community. It was a good ordinance and it did a good job, but times are different. Business is different today. For a retailer to be etieclive, they have to be quick to sense what the customers want. They have to be Planning Commission Minutes August 21, 1995 The attached proposed ordinance is a result of that. It is a different kind of proposed ordinance. It doesnY attempt to cross all the is and dot all the i's. It's significant to point out there has been no enforcement of the existing ordinance for almost four years. It's aself-policing kind of situation wherein the retailers are doing, in their best judgment, what needs to be done. There is new major retail development in Orange.Residents spend money. In previous years, they were spending money in other communities. In 31/ 2 years, customers have returned to the Ctty of Orange and spending money here. The key is for retailers to communicate with their customers. There is a direct correlation between what he is able to do as a retail,small business person with temporary signs and banners in terms of how much business he does in his store. They've had a number of public meetings with other retail people and the subject of signs and banners is a highly emotional and important issue to everyone. He apologized for not being on the bus tour last week. Mr. Godleweski took him on the route the tour took. He requested to be a participant in the construction of the final ordinance. The sign ordinance is an important tool for the retailers in the community.Commissioner Pruett said one of the problems they were struggling with is how to manage the issue of the number of banners and signs displayed. He noticed in their proposal they indicated a business may display a total of two banners, portable signs or a combination of the two. How will the businesses in your center display their signs to where the public on the street can see them? He's outlined about 12-15 stores so there will be about 30 signs just on that one piece of property. How can that be managed?Mr. Patrick didn't think the business people in the community should try to make the City the fall guy for their business problems. If they make a decision to locate in a building that is not suitable for displaying banners and temporary A-frame signs, then they shouldnR have them. What is good Tor one person, is not always good for another. There isn't an answer that is as clear as they would like it to be. Very few retail people will put up a temporary banner or sign because it doesn't lend itself to solving their problem. Most business people will not do something that doesnY accomplish the task and that will detract from the reputation of the business.Commissioner Pruett agreed. He thought the Target Center was unusual because of two very good anchors: Target and Music Plus. Both stores bring in people to those areas where there is traffic. He's trying to articulate is there are shopping centers in the City where they don't have that kind of anchor within the center. So, they have to rely on the signs. Where do they put the signs? With such a large number allowed, there will be signs after signs. And as indicated in some of the areas they visited, that is the problem. There arepeople who don't have the anchor stores to bring in people and they think signs are the answer. As a result, it's overwhelming from the standpoint of the number of signs that are out there.Mr. Patrick said he disagrees that it is an overwhelming problem. He viewed it as not being a problem. He goes through the City on astreet-by-street basis and he doesn't believe Orange has asign/banner problem anywhere in the City. There are a few isolated problems. Specifically, they are pointed out in the photo album. He didnR think they would have a situation where there will be a proliferation of banners and A-frames because of any action the City takes.Commissioner Romero asked what type of self-policing has occurred?Mr. Patrick said in general you don't Lind arag-tag looking community. There is use of signs and banners and for the most part, it's been done well. With a few exceptions, that's what he means by self-policing.The retailers themselves have not seized the opportunity of no enforcement to put out excessively large temporary signs that have created trouble for their neighbors or the community.Commissioner Romero asked it the Chamber committee has specifically gone to a retailer to address certain banners or items of advertising?Mr. Patrick replied no. The Chamber of Commerce or the committee have not taken on any kind of position with regards to discussing the use of signs and Planning Commission Minutes August 21, 1995 retailers for the purpose of discussion about what they're doing and why; what their needs are; what their problems are --that kind of discussion. Public Input Barbara DeNiro, 1118 East Adams, sometimes felt like we're getting to be a garbage grove. She saw a banner on the back of a van on Katella, between Cambridge and Shaffer. She thought that was tacky. Now there are signs on all of the school fences because of the recreation center. She would like to get a copy of the comments that were made on the bus tour. She went to the study session, but didnR Teel invited to the tour. She has a concern for vision problems. She had a problem with dirt, trash and food stuff on the outside tables in the downtown area. Sometimes the parking lots are dirty. She shops because a product is good --not because of the sign. She was concerned about accident potential. Bret Hunter, Executive Director of the Chamber of Commerce, 80 Plaza Square, said if you looked at 7,000 businesses and look at no enforcement, no fees for the last 3 to 4 years, and showing pictures of 40 to 50 problems thai are recognized as problems, he didn't think that was a problem. There are some significant problems out there. The proposal the task force has made is trying to address those problems problems with quality of signs, location of A-frame signs on public sidewalks, blocking right-of- way and visibility -- those are problems. Those are problems they want to correct. Vehicles being used as signage is a problem -- those are the things they wish to correct. When you consider the magnitude of the number of businesses and the amount of time with no enforcement, no fees, they think the individual businesses will generally take care of themselves if they have some guidelines. There doesnR need to be a lot of guidelines, but some limiting guidelines and some placement guidelines more than anything to show people where it's appropriate and not appropriate to have these kind of signs. Commissioner Pruett asked how they would articulate that in a way that is even handed. You get into a problem where one business is not treated the same as the other business. They then feel they have been cut off. How does the Chamber deal with their membership of getting them to buy into the concept there is a differentiation and what is reasonable and what is unreasonable? Mr. Hunter responded that has been a challenge. At their larger meetings some of the people said they wanted to have banners and signs wherever they wanted and as big as they wanted. They were not willing to recognize there were any problems. Mr. Patrick has tried to work with those businesses to show them there are problems. Most of the problems relating to location are attaching to utility poles, to landscaping, in the middle of the public right-oi-way, in areas that are not appropriate. If those are required for those businesses, the City already has an encroachment permit process, which needs to be implemented. They want something that is fairly open and easy to enforce; each sign would have to have a seal on fl (recognition of paying their fees and that it is a quality sign).Commissioner Pruett said the other concern was how to educate or reach out to those that were not members of the Chamber oT Commerce and how responsive are they on these issues?Mr. Hunter said some were members; others were not. If it's a City ordinance, everyone would have to live with the requirements set in place, Chamber member or not. More than anything, it seems to be a location kind of issue -- what's an appropriate location. And then relative to the A-frame signs, there are some size issues that need to be dealt with, which is in the proposal.Commissioner Pruett asked ii the Chamber was making any effort to educate and communicate with those people who are not members of the Chamber. Or, is the Chamber only focusing on members?Mr. Hunter said the cask force has dealt with both. As they have been out and are visually circulating through the streets, they do stop and try to address safety issues with the business owners and point out the concerns. At this point, people are waiting to see what position the City takes. How large can the signs be? What about location? People are waiting Planning Commission Minutes The public hearing was closed. August 21, 1995 Commissioner Cathcart commented he was looking for enforceability and uniformity -- that's. very important. A definition of terms was also needed. Professionally done signs -what does that mean? The City also needs to remain independent in doing this. It'sinappropriate for Mr. Patrick to have direct input at the time the ordinance is being finalized. There should be public testimony, the Planning Commission needs to make recommendations to the staff, the staff writes the ordinance and then the Chamber committee, or any other person can be privy to that at a public hearing. The Commission and stall represent all the atizens of Orange --not just a specal interest group.Mr. Godlewski reported the discussion heard this evening is the culmination of quite a lengthy discussion and debate on signs and more particularly, one small aspect of the sign ordinance; that is, banners and A- frame signs. Mr. Patrick and the Chamber of Commerce have raised an issue before Code Enforcement goes out and starts enforcing the existing ordinance. They would hope perhaps the City could take a step back and look at the existing sign ordinance and decide whether it really does reflect what is wanted as a sign ordinance and one that really reflects current trends and the desires of the business community. Staff is looking for not so much the details of where A-frame signs can be located or how to ariach a banner to the property, or in what location that banner can be attached, but rather looking at the existing ordinance; should a change be made and what direction that change needs to take. On one hand there is a banner ordinance that says you can have a banner up for 45 days in a six month period. The request from the business community is that they be allowed to have banners up all year round. That's the type of questions staff wants direction on. Is 45 days enough? Should the banners be displayed for a year? Staff can then return with an ordinance, depending on the direction, that meets all the details and certainly the majority of the technical aspects of the ordinance. They are looking at two issues: banners --the number of banners that are displayed on a business; the size of the banners that can be displayed; and the length 01 time the banners should be displayed. They are curcently described as a special promotion. Should banners be reclassified as some sort of different classification that would allow their being displayed on an annual basis? The suggestions from the Chamber and business community have been very helpful in how to deal with this. Some kind of tag could be issued for banners and a fee could be charged for those tags. It would help to enforce the banners. It will take a lot of time to go out and inspect banners, but as Mr. Hunter suggested, the fees should represent the amount of time it would probably take to do this sort of enforcement. The second issue is the A-frame signs. Do we want to allow A-frame signs? If so, shall the City issue encroachment permits for public property or do we allow them on private property only?And, are there areas in town where we donY want A-frame signs?Commissioner Cathcart said the only concern he had with A-frames is one of legal interpretation. He would leave that up to the City Attorney's office and staff to figure out the location that would be appropriate; and how some of the hold harmless clauses can be written. He didn' t have a problem with A-frames, and in some cases he thought they were unique. There is an ordinance now that says 42" high maximum height). The dilemma he sees is when they say 42" -- from where? They have discussed previously there is an ambigufty in the existing ordinance as to where the 42" is. Is it from the street or is it from the curb? There must be consistency. He looked to staff to make sure that consistency follows through. With regard to the banners, he did not have a problem with the Chamber's recommendations on the banners -- either a banner and an A-frame, or 2 A-frames or 2 banners. The problem he goes back to is enforceability. How does the City get the people to take down banners that are tattered, torn and look like they have beenrun over by a truck? That's going to be the difficult part. That is different from the expiration date and stamp of the banner. Perhaps the expiration date should be more along the lines of take down to maintain and put back up, rather than expiration date of the length of the banner. He didnR know the answer, but was looking to staff to help on that issue. He was in full agreement with the Chamber in that perhaps some common ground can be established between those that want an infinite amount of signs and banners and those that are timid. A middle road needs to be established and then find a way to enforce it and make it uniform. He disagrees with Mr. Patrick that people are waiting at the boundaries to see what the City of Orange is going to do. Those people who are going to be a problem are problems now and they will continue to be a problem in the future. The City needs to figure Planning Commission Minutes August 21, 1995 Commissioner Smith thought they should make a change. The direction should be one that benefits the business owners, but does not overly penalize the City, especially in a financial place of enforcement and licensing. The number of banners for a business should be consistent regardless of the size of the business, but the size of the sign should be relative to the size of the building frontage. Length of time --theymay want to look at a quarterly basis. Display the sign for two quarters, bring k in for a quarter and then take it back out. She, personally, could live without A-frame signs because it's going to be different depending on who owns the property in front of the buildings. It would seem to her, they might want to look at something in geographic areas. The need for signage on Tustin is different than the need in the downtown plaza area. On the tour, they drove through several different geographic areas -- East Chapman, West Chapman, EastlWest Katella, North/South Tustin -• there is a different need for visibility.That might be worth pursuing to see if there are obvious districts and maybe some opportunities for groupings of particular specifications in terms of size of banners. There should be something about not being able to hang banners on trees or poles. She cautioned to weigh what the financial impact would be on both sides; income vs. monitoring.Commissioner Cathcart stated he wasn't looking for any lengthy time between the expiration date and the time a banner could be put back up again.Commissioner Pruett said one issue was the fees. He knows the fee cannot be higher than the cost of conducting the inspection. Otherwise, it would be considered as a tax increase. The Chamber should recognize the tee will have to be wnsistent with the cost to recover it. But that's going to be interesting to come up with a formula to determine what that fee will be. That needs to be dealt with. In terms of the districts, that' s a great suggestion. He heard the Chamber say that too. Every business is different and there are different approaches. He would like staN to talk to the Chamber about the concept of these districts and how the signage might be different in the districts. That's something that deserves some investigation. In terms of signs encroaching the public right•of•way, thatought to be a plain no-no. That addresses some of the issues in the downtown area because there are zero setbacks. A person will not be able to encroach into the public right-of-way. Also, it helps alleviate the City of any liability from the standpoint of someone running into the sign or whatever. The concept of nothing in the public right-of-way is the best way to go. The issue of renewing signs and making sure they are maintained propedy -- he would support the concept the permit has to be renewed more than once a year. In other words, maybe it's a permit for six months. Then the sign has to be re-approved for hanging again. At that time, there would be opportunity to make inspections and look at those issues. That would increase the cost of the signs from the standpoint of the permit because a permit would need to be taken out twice a year instead of once a year. The other issue that needs to be dealt with, especially in the area of banners, is that when the Santa Ana winds blow, who is going to go out and inspect them and maintain them? Who is going to pay for the cost of the inspectors having to go out to tell the business owners they must repair the signs?Will there be a fine involved? How is that going to be managed? That's another issue the Chamber needs to review.Commissioner Romero asked if the City has researched other cities who have similar banner and A-frame problems and what about tax revenues?Mr. Godlewski responded staN has researched other Orange County cities to find out what their sign and banner ordinance is. Particularly, banners seem to be the issue. Most cities have a banner ordinance, but restricts the display of banners to a limited period of time, anywhere from 30 to 90 days. In thelast 1 1!2 years, there have been six cities that had this very issue brought up to their Commission and Council;probably four of which have decided not to do anything about it and took a wait and see attitude. He took clippings from The Times and The Register and put them in the initial staff report onthis subject. It' s a very emotional topic. Staff has not made any specific studies in the area of tax revenues. The other cities did not offer that as information.Chairman Bosch started with A-frames. He found when A-frames began to appear in the Old Towne area he thought them unique. It reminded him of other historic commercial districts. But Planning Commission Minutes August 21, 1995 were trying to encourage the commercial enterprise on the sidewalks that with a very narrow rights•oi- way between the zero setback store fronts and the curbing, it was creating a safety hazard. He was conoemed about A-frames in the public right-of-way. It becomes a vision block, even if it's within 10 feet of the driveway cut or crosswalk. He sees an emotional issue too -• the first time a kid gets hit because someone didn't see them around the A-frame sign, it doesn't make any of the signs worthwhile in the City. On private property, A-frames can be very useful and desirable if they meet a number of conditions. In that regard, he commended Chuck Giass', Traffic Engineer, August 9 memo, whichspecifically addressed public right•of•way, but has many features that should be observed on private property as well with regard to heights above pavement vs. curb; with regard to locations for sight line clearances at driveway intersections, crosswalks, handicap access areas -• all the features one would look at other than City liability. There are key issues from years past from working on the design of retail developments. Often there are lease restrictions or exclusions with regard to signs other than those permanently attached to the premises. It appears they must have a moratorium on the fulfillment of lease provisions as well. He was concerned the Chamber, outside of the City's purview, work with the property owners to assure some of the tenants who may not be blessed with an end unit or corner unit don't feel they have to go beyond.They're the ones most likely to try and look beyond to gain back some advantage. They are buried tobegin with. They don't pay for the best unit necessarily, but, they are limited in theexposure they have.He's concerned about A-trams signs in the public right-of-way. At the moment he strongly feels they are inappropriate. That's on streets with no parking in the curb lane. Whare parking occurs in the curb lane,there is a double problem particularly on commercial streets of sight line clearances from the sidewalk and from the street for vehicles and pedestrians. How can that be solved if there are signs near the driveway?A cut oii of more than 10 feet is essentially required. You must see between parked cars to get a view of on-coming traffic. That needs to be carefully considered if anyone desires to further review A-frames. He agreed there should be some time intervals on banners. He very much likes and applauds the concept of the maintenance period approach. A 45-day period for display is very common. He was concerned about the quality of the signage, the number and placement. He concurred with the Chamber committee's recommendation on not allowing banners on sloped roots above the roof line itself; that they donY conflict with the permanent signs on the building. There are building and safety issues that needs to be addressed relative to blocking access and egress into the buildings. The City has spent a lot of time with recommendations from the Police Department over the years to provide good vision into stores and particular businesses for good surveillance to assist business owners and patrons as well in public safety.They need to becareful the banner signs don't hinder that since it's something the City can't control as well as they can control permanent construction. He concurred with Commissioner Cathcart about the need to clearly define all terms that apply to the creation of any signs, but particularly banners with regard to lettering styles, professional preparation or any other item that exists in an ordinance or regulation to describe what the City is allowing people to do. In his estimation they need to be concerned about the number of signs as well. He supports one temporary banner per facade. It's not just the maintenance of signs, but the maintenance of buildings. They have seen facade treatment of buildings permanently ruined through staining and dirt after the banner has been up too long without cleaning taking place. That causes deterioration of the permanent buildings in the commercial neighborhoods. They need to look at temporary signs and banners as including other types of temporary signs. They can't be ignored. Window painted signs -- he believed the ordinance limited that to 25% of the window area. Again, for public safety concerns. The painted window signs should enter into the mixture of number, size and location of signs.They should clearly address slags, balloons, figurines and merchandise displays as they become signage or icons of a business. They need to allow as much tree enterprise, as much individual expression as possible, but not when it becomes distracting as they have seen with the variety of the balloon and flag displays. Even down to the balloons coming loose in the Santa Ana winds, tying themselves info the high tension lines causing severe problems. He liked the concept of looking at particular areas or districts.They have, in effect, by ordinance sign program requirements for major developments. He believed Koll Center was one of those. The City shopping center may have been. Future major commercial developments are required to bring in an overall sign program for their complex over a certain size. That creates a special sign ordinance for their special district. It might be worthwhile to look at how that could be applied to an Old Towne district or a Tustin Planning Commission Minutes August 21, 1995 geographical or specialty commercial or other type of feature that creates a district to clearly differentiate what makes it special and enhance that without damaging the very necessary uniform application requirements the City has otherwise. Encourage commercial neighborhood wide displays and events so it would further enhance sales. He was not encouraged by sett-policing parse. There are a lot of great people who don't cause the problems. He didn't believe it would be appropriate to create an official committee of any membership combination that would go out and make subjective determination as to what is appropriate or not. To avoid the potential of free speech related issues, individual opinions, rather than something that provides uniform application for everyone and easy enforceability; regulation is needed rather than a relatively independent method of judging.Commissioner Cathcart thought the maximum height of signs has to be relative with the application and scale of the building.Commissioner Pruett added they needed to look at the banner material as being non-flammable.Moved by Commissioner Pruett, seconded by Commissioner Cathcart, to continue Ordinance Amendment 1-95 to the October 16, 1995 meeting.AYES: Commissioners Bosch, Cathcart, Pruett, Romero, Smith NOES: None MOTION CARRIED 5 -REVOCATION OF CONDITIONAL USE PERMIT 1998-92 - CLUB REMIXX/THE TUNNEL A hearing to determine whether the conditional use permit issued in 1992, which allowed operation of a non-alcoholic, non-smoking nightclub, should be revoked. The site is located at 612 North Eckhoff Street.N TE: This project is categorically exempt from California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15321.This item was continued from the July 17, 1995 hearing.)Commissioner Pruett stated for the record as a Planning Commissioner he tries to go out and visit the sites to get a better handle on what the issues are and how it can be resolved for the best interest of the applicants, as well as the citizens of Orange. It helps him to get a better understanding of what the applicant's issues are, as well as the City's issues. On this particular issue, when the item Tirst came before the Planning Commission back in July, 1995, the Sunday prior to that he drove by the site. There wasnR anything to see out there because it was closed. The industrial area was vacant; no businesses were open that day. He attended the Planning Commission meeting on the 17th and the issue was continued.After a couple of weeks, knowing the item was coming up, he wanted to take a look at the site when there was activity at the site. On Friday, August 4, 1995, he drove by the site and there was some activity -- cars were parked on the street and people were in the parking lot. There was a police officer close to the site.He stopped and talked to him about the facility in terms of where it was located. He and the officer went back to the site and encountered one of the security guards on the south side of the building at the main entrance. He talked to the security guard and asked him how many people were on duty. He said he had 10. Commissioner Prueri did not count the number of security guards that were there; he was just curious as to how many were there. He went around to the north side of the building and asked the security guard on the north side of the building if they could enter the facility to take a look inside. The security guard welcomed ahem in to look around. Upon exiting the facility, he encountered the person who was in charge of the facility and introduced himself. Commissioner Pruett identified himself as a Planning Commissioner and stated that this issue was coming up. And, he was at the site for that hearing. The owner indicated he wished Commissioner Pruett had been present on an evening when there was a larger crowd. That's really what he observed. Upon entering the building, he wasn' t sure if they were open or what the situation was, but there weren9 a lot of people inside. The room described as the "crash room" was basically empty. There weren't a lot of people outside either. He Planning Commission Minutes August 21, 1995 everyone recognizes that although he went out to the site and talked to the people involved, he only wanted to understand the issues involved by visually seeing what was out there. He believed the visits would not lead him to prejudge any activity he took on, whether it was this issue or any other issue that wmes before the Planning Commission. He takes these with a straight forward look and the issues that are presented at the hearing is where the judgment is made. However, there may be some objection to his participation as it relates to this matter because of the appearance of conflict. He was open to hearing if such conflicts exists that would preclude him from participating in the hearing. No one objected to Commissioner Pruett's participation in the hearing. Commissioner Bosch explained the format the Commission intended to follow in conducting the hearing. Frst, the Chair will request all those who intend to be witnesses to be called by the complainant and by the permittee rise and be sworn in. Next, the public hearing will be opened. Allow first the presentation of the City's case, which will be led by Mr. DeBerry, the Assistant City Attorney. Following his case and presentation of his witnesses, the Commission will allow the questioning of those witnesses by the permittee's representative, if he so desires. Following that presentation, which may include questions by the Planning Commission, they will entertain a presentation by the permittee, including an opportunity to further question the City's presentation and allow questions by the City's representative, of those witnesses along with questions from the Commission if they arise. The Commission will then welcome other public testimony by those who are not witnesses, but interested public citizens. Then, move forward to a closing statement by the City, as the complainant, and a closing statement by the permittee. Whereupon, the public hearing will be closed for the Commission's discussion and decision with regard to the matter. All witnesses were sworn in by the Recording Secretary, and the public hearing was opened. Joshua Kaplan, attorney representing the permittee, 9171 Wilshire Blvd., Beverly Hills, requested that all witnesses who are not presently testifying be excluded from the hearing. He felt the testimony of one may indeed infect another. That it would be a better and fair process ii each witness were not present to hear the testimony of the other and the cross examination of one by the other. Mr. Soo-Hoo thought it was a matter for the Planning Commission to decide as to how it wants to conduct the hearing. There is not a mandatory requirement that witnesses be excluded, but certainly it the Commission so desires, that could be done.Commissioner Cathcart thought by taking each individual witness, then having them questioned and cross examined, it would create a lengthy area of testimony that he didn't know if it would benefit him any more than having them here.Mr. DeBerry said the process being suggested by Mr. Kaplan is a process followed at trial. However, he thought the possibility that the witnesses would change their testimony based on what others say is minimal. Most of the witnesses will be testifying as to different events that happened on different occasions. There will be some cases where officers could testify to the same incident, but generally,rather than have the whole Police Department present, he tried to only obtain one witness from each particular event. The danger Mr. Kaplan is concerned about is very minimal.Mr. Kaplan said it was customary in proceedings in which you are attempting to revoke a fundamental vested permit, that is constitutionally protected, that every due process element be met. It is their position they do not wish to cross examine all of the witnesses at once. They wish to cross examine them individually and consecutively. They wish to cross examine each of them out of the hearing and presence of the other. So they wish to renew their motion to exclude witnesses not presently testifying. He reminded the Commission that although they may be dealing with what they perceive to be a simple land use issue, it is not. It is a constitutional issue of grave constitutional significance. The permit is protected by the freedom of expression provisions of the United States and California constitutions and this Planning Commission Minutes August 21, 1995 procedure must be scrupulously fair. It was his opinion that without excluding the wRnesses, it cannot be scrupulously fair. Chairman Bosch remained open to the Commission's desire in this regard. They are the hearing body, not the ones seeking to revoke Mr. Kaplan. Commissioner Pruett thought since Mr. Kaplan would like to have the due process followed, and he wants to follow it in that direction, he saw no problem presented by that. He assumed he was talking about his witnesses as well as the witnesses presented by the City. From that standpoint, fl was appropriate. It will be interesting to hear the issues from that direction. Mr. Kaplan stated he only had one witness who is Mr. Brooks, one of the permittees. He would like him to remain. You cannot exclude the permittee; he has a right to be here. None of the police officers hold the permit and are not parties and interest. They are merely witnesses. Mr. DeBerry said the police officers could be present when Mr. Kaplan presents his witness. He thought the concern was that our witnesses would tailor their testimony to follow other City witnesses. In order for Mr. Brooks to competently rebut testimony from Orange's witnesses, he needs to be present to hear what the testimony is. However, even if the witnesses were excluded, this process would drag on unnecessarily long and he didn't believe there was any due process requirement that there be a trial format where all the witnesses are subject to lengthy cross examination by the applicant. He believed all witnesses must be available for relevant questions and they will be prepared to respond to those questions. But those questions can certainly be entertained through the Chair. And any question that is relevant, can be addressed. Again, the cross examination format is unnecessary in this proceeding and he was not aware of any due process requirement. Commissioner Romero was of the opinion that since this was a hearing and not a trial, the Commission should hear this matter as any other typical normal hearing. Witnesses should not be excluded from testimony. Commissioner Cathcart suggested they start the hearing and excuse the witnesses to the back room. Chairman Bosch concurred. It was more important to get the information gathered to reach a just conclusion with a Lair hearing. The witnesses were removed from the Chamber until called. Mr. Kaplan had one more request. Either Mr. DeBerry or Mr. Soo-Hoo should disqualify themselves from proceeding further in this matter. It's undue influence and prejudice for the Commission to have the dual functioning of the accuser also the same office advising you in legal matters. If he had legal motions to make or legal objections to make, the Commission will turn to the City Attorney for legal advice. That's the same office that is prosecuting his client. It's essentially trying to take away a vested right to earn a livelihood. That is an impossible conflict and one of them has to be disqualified. He suggested independent counsel be appointed.Chairman Bosch stated first, this was not a prosecution. This was a revocation hearing. The Commission relies upon Mr. Soo-Hoo as the City-appointed advisor to the Planning Commission with regard to the procedures of the Commission. Mr. DeBerry, who is known to the Commission because he is an employee in the City Attorney's Office, does not routinely appear before the Planning Commission. He understood his concern by appearance, but he was looking to assure the Planning Commission has the best possible advice to assure they are conducting a Lair hearing.Mr. Kaplan stated the City is attempting to revoke his client's right to earn a livelihood. You may call it a prosecution; you may call it a revocation proceeding. But, whatever you call it, it's the same office that is both bringing the charges and giving the Commission legal advice. The City needs to Planning Commission Minutes August 21, 1995 independent prosecutor~ndependent counsel to bring the proceedings on, and not have ft out of the same office. Mr. DeBerry has sent numerous responses to Mr. Kaplan regarding discovery requests, witnesses, and any other questions or concerns he might have. Although not surprising, he noted at this hearing, Mr. Kaplan brings up two issues which are an attempt to have the matter continued. Not once did Mr. Kaplan request that separate counsel be appointed. To his knowledge, this process that is before the Commission, has never been sucx;essfully challenged as violating some due process provision. If Mr. Kaplan wants to raise that argument at the court level, then he suggested he do so at that time. But, 'rf the City was required to go out and get pay for independent counsel every time it had a hearing, the incremental costs to the City would be quite extensive. Again, the applicant has raised no such objection until the twelfth hour. He thought it had to be met with some suspicion as a way to continue. Because there is no way the City could continue with the process it either he or Mr. Soo-Hoo were disqualified.Commissioner Pruett thought they needed to move forward on this. Mr. Soo-Hoo's expertise in law is dealing with zoning and planning issues and that's where he assists the Commission. They could move forward with no problem.The Commission concurred Commissioner Cathcart thought Mr. Kaplan had every right to object in a certain way that will be part of the public testimony. The Commission is a recommending body to the City Coundl. At that time, if Mr. Kaplan would like to raise that same issue with the City Council, it would be appropriate. And he thought Mr.DeBerry was correct. If Mr. Kaplan feels his clients were not getting the right answer as the Commission proceeds up through their recommendation to the City Council, then it would be appropriate at a court level.Mr. Kaplan had a certain duty to protect the record, whether it may be appearance of belaboring things ornot. It's still a duty he had to fulfill. He stated for the record not withstanding the fact they will be participating obviously in the evidentiary phase of the revocation hearing. That should not be construed as any waiver on their part. They do specifically reserve constitutional objections to both the code sections under which the proceedings are held and the conditions imposed on the conditional use permit previously as unconstitutionally vague and overbroad, lacking sufficiently precise criteria for revocation of this permit, which is constitutionally presumptively protected, and a vested right, tt is their position there is no jurisdiction constitutionally to proceed with these revocation hearings based upon the lack of precision both the code sections and the conditions of the permit which have been allegedly violated.David DeBerry, Assistant City Attorney for the City of Orange, stated the Orange Municipal Code Sections17.92.140 provides that aC.U.P. may be revoked ii any of the conditions or terms are violated or if any ordinance or other provision of law is violated. California Case Law has established that aC.U.P. may be revoked if the permittee fails to comply with the reasonable terms and conditionsexpressed in' the permR,or it there is a compelling public necessity. A compelling public necessity has been held to exist when the operation of the business is a public nuisance. A public nuisance exists when the operation of the business is injurious to the health and safety or offensive to the senses of a considerable number of persons. As you know, it is the position of City staff that facts exist to revokeC.U.P. 1998- 92 on both grounds. The City has submitted significant and substantial documentation, and will produce witnesses at this hearing to evidence the applicant has violated seven of the eight conditions imposed. And the business constitutes a public nuisance. The City refers to atl the documents and reports, which have been submitted to the Planning Commission and the applicant. Specifically, the reports and attachments dated June 19, 1995 and August 9, 1995, and incorporates them as part of the record of this hearing.The City contends the applicant has violated the following conditions: 1) the applicant shall demonstrate the facility is in compliance with all Uniform Building Codes; 2) the applicant will provide a minimum of 8 security persons at all times when the facility is open for public group activities; 3) no alcoholic beverages are permitted to be consumed on the premises; 4) the police department will monitor the facility to determine if calls for police service increases due to dub activity; 5) and 6) prior to Planning Commission Minutes August 21, 1995 applicant shall record a hold harmless agreement with the City and obtain liability insurance naming the City as an additional insured, and approved by the City Attorney; and 7) pay the Transportation System Improvement Program fee. In addition, the Commission made a finding on C.U.P. 1998-92 that the proposed project would not cause a deterioration of bordering land use or create special problems for the area. The City contends the applicant's business has caused such a deterioration and create special problems for the area. The first condition the City will address will be the applicant's failure to demonstrate compliance with all Uniform Building Codes and fire codes. The applicant is restricted by the Uniform Building Code to 299 occupants. At this time the City will request that Fre Code Enforcement Officer Ross Seymore be called to testify concerning his knowledge of the code occupancy limits and his personal observations concerning occupancy levels at the applicant's facility.Mr. Kaplan interposed an objection. He understands counsel has submitted to the Commission as part of the record documents a memo dated June 19, 1995 and August 9, 1995. They objected to the receipt of any and all of those documents as not having a sufficient foundation laid for their reliability. It contains hearsay and conclusions without foundation. He thought some of the documents they objected to previously, which should be part of the tile. It was so rested.Ross Seymore, Deputy Fire Marshal, City of Orange Fire Department, said his first encounter with The Tunnel was when he went out there at the request of the Police Department to check on the occupant load. At that time he hadn't done any research or background on The Tunnel and knew nothing about it.He met with Mr. Brooks on that date and discussed his operation and the exiting requirements. He was totally cooperative. At that time, he indicated the occupant load was some 600+. The number that is in the C.U.P. was established by using the square foot method per occupant, which is frequently done in the Building Code. He thought the factor was 7 square teat per occupant. In other words, the facility is sized large enough to accommodate that number of people. However, the exiting doesnY qualify for that type of occupancy. Further research and with the assistance of the Building Department, Mr. Seymore was given a copy of the C.U.P. and found the occupant load to be 299. Due to the inability of that facility to provide a side exit; exit width could be obtained only on the north and south faces of the building. And to go from an A3 toA-2.1 ft would require a side exiting system. At the initial time he met with Mr. Brooks,he expressed concern over the occupant load. The number 600 was certainly in excess of anything he could view. Mr. Seymore indicated to Mr. Brooks he needed to count each individual and count the exiting to maintain an appropriate occupant load. His indication was cooperative. On a subsequent visit to the facility, his estimation of the occupant load was near the 299 limit; possibly slightly over that. The difficulty in assessing ah occupant load for a building that can handle a good deal more people than what it is allowed to handle, is ii you have the right size floor area for the right sizeoccupancy, it's very easy to make that decision. But when there is quite a bit of room for each individual, the occupants were dancing,moving freely about the floor, and Tor the floor area, it was not overcrowded. It was, in his opinion, some what overcrowded Tor the exiting, but it was close enough he had no desire to require a count out and count back in. There were no police officers at the scene and he felt no inclination at that time to call any.The third time he visited The Tunnel, he met with Mr. Brooks who indicated that his door man, who was counting people in and out, had to leave for a moment. He went to find the gentleman and returned with a counter that had a count of 410. But he was unclear as to whether or not his people were doing the kind of job necessary to count in and count out. He indicated that potentially people had left and he didn't know about it. InMr. Seymore's estimation, 410 was probably a fair estimate of how many people were in there. Perhaps, a few more. On his fourth visit he estimated the occupant load to be about 250. So, on the fourth visit there didn't appear to be any violation.Commissioner Pruett asked what days of the week the visits were made?Mr. Seymore said the first time he spoke to Mr. Brooks was on a Wednesday. And, there wasn' t anyone there. The other times he went out were in response to an indicated event that was suppose to take place. Flyers were circulated indicating something special at one time. Snoop Doggy Dog was suppose to be there. It seemed to him that would be the time The Tunnel would be crowded. But, apparently the event never took Planning Commission Minutes August 21, 1995 Commissioner Cathcart wanted to know the difference between an occupancy level and an exiting level? Mr. Seymore said fi the building had the right amount of exits, then you would use the square footage to determine the occupant load. Then you would arrive at a figure probably in the 600 range. Because youwouldallow7squarefeetperoccupant. However, that building has only anorth-south facing potential for exiting. It has the normal concrete tiff up glass door exiting in the front, a roll up and a man door in the rear.Exiting width doesn't play into that because the code specifies if they exceed the 300 or 299 limit, it requires a side exit (or a third exit).Chairman Bosch asked in Mr. Seymore's estimation and review of the building, was there sufficient width in the front or rear walls to position exits so that a third exit could be legally placed, increasing the occupant load?Mr. Seymore responded to meet the letter of the code, it could not be done. But obviously, if you blew out both ends of the facility, everyone is going to get out no matter what happens. There is the potential,but there needs to be a submittal from the involved people for review to see ii they could meet that or not.Oft the top of his head, he would have to say no. Upon review, it would need to come under the alternate materials and methods as part of the code because it specifically requires a third exit.Mr. Kaplan asked if Mr. Seymore was Tamiliar with the conditional use pennft that was granted?Mr. Seymore has reviewed il.Mr. Kaplan said Mr. Seymore indicated a couple of times that the conditional use permit imposes a 299 person occupancy? (Yes.) Could he tell Mr. Kaplan where that is?Mr. Seymore did not bring a copy with him.Mr. Kaplan showed him a copy of Resolution PC 84-92.Mr. Seymore said the staff report for theC.U.P. is not a 2-page document. The occupancy limits were under the conditions of approval.Mr. Kaplan showed him Resolution PC 84-92, which is attachment 1 to the conditional use permit documents.Mr. Kaplan asked when was the third visit made to the premises when Mr. Seymore believed there were more than 299 people?Mr. Seymore said it was the May 12, 1995 date. He trusted the counter Mr. Brooks gave him to count the people. He didn't know if the person before him had counted people in and out accurately. He didn't know who operated the counter before him. He used his estimation of how many people were in the room to determine there were more than 299. He did not estimate by the exact number; he acwunted Tor an error factor. In one large roomof that nature it's fairly easy to split it into 25% sections and count only a fourth of the people. He thought there were less than 400 people because he didnY believe a good job of counting back out was being done.Mr. Kaplan asked if Mr. Seymore recalled when, if ever, he advised Mr. Brooks he had an occupancy of 2997 Mr. Seymore indicated that on their initial meeting and then re-affirmed that the third visit he made.Mr. Kaplan...That was the first time you told him you had gone back and done an independent investigation of the existing factor as opposed to square footage factor and at that point he Planning Commission Minutes August 21, 1995 Mr. DeBerry interjected. He thought the procedure was to not have a trial format cross examination and that is what is taking place. Otherwise, he was going to be objecting. This is the exact type of procedure they were trying to avoid. The objections to the type of count can be made and put on the record. This is the type of format that would result in a three to four day trial. Mr. Kaplan stated that's too bad. You're trying to revoke a vested constitutionally protected permit. He didn't care if it went on for three years. If it takes three years, that's how long everyone will be here. Mr. DeBerry has a problem with his questions as soon as he hits a sensitive area where his witness is weak. Now he's got a problem. Mr. DeBerry thought that was a misrepresentation of his position. When the hearing first started, he thought he heard the Commission was in agreement this would not break down into a trial Tormat. (That's true.) Each witness would be subject to cross examination. Mr. Kaplan said ii these witnesses were going to come in and present evidence that subjects his dint to a loss of livelihood, they have a right to ask them questions. This is not England and the Star Chamber proceedings. It's not Spain in the 1490's. (It's also not a trial voiced by Commissioner Cathcart.) Mr. DeBerry explained, again, due process does not require a trial format at this stage. Mr. Kaplan objected. Mr. DeBerry stated it requires the City to present evidence and have its witnesses available for questions. Mr. Kaplan would tike to ask some questions then instead of cross examining, but he failed to see the schematic distinction difference. But due process requires that if people are going to make statements, they have a right to be tested on those statements. And, he had a right to examine them and he was going to assert that right. Chairman Bosch asked Mr. Kaplan to make his questions as direct as he could in the interest of due process in assuring they arrive at a full, but timely disclosure of the fads. The City was interested in getting all the facts, but again, he concurred this was not a trial. This was a public hearing to determine the fads with regard to the land use issue. It's fair for the understanding of all involved in this hearing that the questions be to the point and not be repetitive; it's not a cross examination. He advised Mr. Kaplan to take a breath and get control of his questions. Chairman Bosch thought Mr. Seymore had been badgered a bit on his response about estimation and he should be given a chance to respond fairly. He believed Mr. Seymore's answer was lost in the confusion of the questioning. Mr. Kaplan did not think he was badgered at all. If the Commission wants to ask him questions about the count, they can do so after he is finished. But it's his turn to question him now and he had a different question. He would like to proceed with his questions before he was interrupted by Mr. DeBerry. Chairman Bosch will ask the question of the wdness later on because he thought it was important to get all the information. It's nice to have it in good order. Commissioner Pruett thought ii they had a question of the witness, this is a public hearing; it's not a court trial. Mr. Kaplan can hold off for a second until the question is answered. That's not taking out of your due process; Mr. Kaplan will get his due process and hearing. But, it was felt Mr. Kaplan was coming on a little strong and he needs to understand the Commission is trying to get to the facts and make a decision that is in the best interest of his client as well. He believed Mr. Kaplan was not representing his client in a way that allows the Commission to get the evidence and facts that is really critical to the derision. They don't need all the other material to cxeate the tog. The Commission wants to get to the issue. And, if it's appropriate for the witness to answer the question, he should. Mr. Seymore clarified he could not go into a room any better than anyone else could and tell you how many people were in there. It works pretty good up to about 100 people, and then you lose control of it. 18 Planning Commission Minutes August 21, 1995 He expressed the difficulty in this type of occupancy where fts limited by exting in observing the exact square footages per person. When you only have 7 square feet per occupant, R's easy to tell when it is overcrowded. No matter who goes there, unless they count out (which he didn9 want to do) -instead he estimated how many people were in there. An estimate is a best guess and it's based on seeing a lot of rooms, a lot of occupancies and a lot of people. He was not trying to dodge anything; he only wanted them to have the best information he could give. Mr. Kaplan had one more question. Mr. Seymore and Mr. Brooks engaged in some conversation. He thought he had 800 people; you thought it was maybe 299 -- this was on the first visit. The second visit,you conducted some investigation with determining the occupancy based on exiting factors rather than the square footage factor. Then, it was on the third visit you finally told him you conducted this investigation and you thought he was wrong and it was not by square footage, but by the exiting factor.Mr. Seymore told Mr. Brooks his occupant load was 299 and he expressed how important the counter was at that time. Because he believed it had been taken care of goody.The third visit on May 12, 1995 is really the first time you told Mr. Brooks authoritatively it was 299, correct?Yes. Commissioner Pruett questioned Mr. Kaplan regarding PC 84-92 that was shown to Mr. Seymore. He wanted a better understanding oT what was being asked because he didn't fully understand what it was he was getting to. Mr. Kaplan explained the documents he was supplied by Mr. DeBerry as a result of discovery contained a resolution PC 84.92. It was a 2-page document, attachment #1, PageA-1.7. He asked the Fre Marshal to show him where in those two pages there was an occupancy load of 299 imposed. (Under Item 5.)Commissioner Pruett asked Mr. Seymore -the occupancy level is a matter of a building code issue? Is that not correct? (Yes.) And, the building code was established in the staff report as limitingthe building's occupancy to 299 people. (True.) Although the exact occupancy load limit was not adopted in the Resolution, the Resolution did, in fact, take into account the building code and stipulate they had to conform to the building code, which was 299. (That would be the normal process, yes.)Mr. DeBerry cleared up something. They were not here to revoke from CUP 84-92; they were here to revoke CUP 1998-92. If he could direct the Commission's attention to the June 19, 1995 staff report and in particular, attachment #1, Page A-1.3, that is CUP 1998-92. At the top of the page... Consequently,the applicant would be able to determine in advance the number of patrons wishing to gain entry for club events. The Uniform Building Code limits the building's occupancy to a maximum of 299 persons. So what's contained in 84-92 is of no relevance. The permit is clear the building occupancy is 299 persons.Chairman Bosch thought Commissioner Pruett's question was to the Resolution, which enabled this.And, again by referencing the Uniform Building Code and fire code as being reTerenced, they contain the formulas to establish the occupancy of 299.This is exactly why Mr. Kaplan objected to the memorandum. Now, they' re going to consider a staff reportas ii it were law? Or it's a Resolution passed by the Cfty Council or by the Planning Commission? The staff report has no more significance than his opinion.Chairman Bosch stated Mr. Kaplan was confusing Mr. DeBerry's comments with the questions and understanding of the Commission.Commissioner Pruett was trying to point out the resolution Mr. Kaplan put forward did in fact establish the 299 occupancy because it said the applicant would conform to all Planning Commission Minutes August 21, 1995 code established it. He just made reference to the fact that the staff report commented on that, but the actual resolution that was adopted did establish that 299 because of the building code requirement. Mr. DeBerry asked Mr. Seymore what the first date was when he informed the applicant of the building occupancy limit? Mr. Seymore responded it was May 12. Still on this issue, Mr. DeBerry referred the Commission to the police report dated July 30, 1995, Exhibit D, beginning on Page 35 of the August 9, 1995 addendum to the Commission. He called Officer Bartel. She drafted the report and will provide some comments. He brought the Commission's attention to the fact the report is dated approximately 2 1/2 months after Mr. Seymore informed the applicant of the occupancy building load. Officer Lori Bartel, Orange Police Department, said on July 30, 1995 at approximately 7:30 p.m. she had driven in the area of 612 North EckhoN and noticed cars were parked from Orangewood all the way up to Collins on both sides on Eckhoff, and all the way down Sequoia. That night was punk night and she noticed around that time a lot of beer cans in the gutters, kids drinking and heading towards The Tunnel. At approximately 9:40 p.m. three other officers and she decided to do a walk thru and they approached the north entrance, but noticed the door was locked. They asked the patrons to open the door; they rattled the door but couldn't get it opened. The officers walked around and entered through the south entrance. The room was very hostile and kids, ages 15 to 25 years old, most of them intoxicated and the majority were hostile towards the officers. It was very crowded. She estimated at least 500+ were in the club. About halt way through the club, they noticed the patrons were involved in stage diving and slam dancing. Slam dancing is where everyone slams into one another. Stage diving was from approximately a 10 toot stage where kids would dive off the stage into the crowds, hoping someone would catch them. A kid ran into her. It was dim in there; however, she could be distinguished as a police officer. She tapped the kid on the shoulder and told him to relax. He basically got in her face, said F-you; don't push me. At that point, she feared for her safety. Her fellow officers saw what happened and they took this person into the bathroom, away from the crowd because the crowd was getting even more hostile towards them.They placed the kid in a wrist hold and told him to relax. He kept resisting them. They culled him and took him outside to cool off. He cooperated and calmed down and he was released from the scene with no further prosecution against him as far as resisting a police officer. She didn't believe he ran into her intentionally; however, he was extremely hyped up and intoxicated.Mr. Kaplan asked on the individual who bumped her unintentionally then calmed down when taken outside, did she perform any chemical test to determine the alcohol content of his blood?Officer Bartel replied they could smell a strong odor of an alcoholic beverage on him.Mr. Kaplan wanted the officer to listen and answer his question -- Did she pertorm any chemical test to determine the alcoholic content of his blood? Officer Bartel stated she would only do that if he were driving. Officer, did you perform any chemical test on the alcoholic content of his blood? Officer Bartel said part of that would be smelling a strong odor of an alcoholic beverage, yes, that's part of the test. However, that was the only thing she did. So, you didnR perform any preliminary GCI test? (No.) Mr. DeBerry stated it was pretty obvious that no chemical tests were conducted. This string of questions is not designed to extract any new information. He thought she had testified as to the full extent of her observations. 20 Planning Commission Minutes August 21, 1995 Mr. Kaplan resumed, you have no evidence then that the alcoholic content of this gentleman's blood was above .OS percent? Commissioner Pruett interjeded. They stipulated there was no chemical test. That means, in his view, they really don't know what the chemical level was. What the officer did testify to was there was alcohol on his breath. Everyone heard that; the hearing can move on. Mr. Kaplan asked if she had any evidence that he consumed that alcohol inside the club? (No.) Did she have any evidence that any employee of the club provided him alcohol? (No.) And, she did not see anybody on the evening of July 30 inside the club consuming alcohol? (Outside she did; inside she didn't.) Where outside did she see people consuming alcohol? (On Eckhoff, Sequoia and in the parking lot, on the north and south sides of the club.) In the parking lot, were they consuming it outside their cars, inside their cars, or where? (Outside their cars.) How far away was that location from the entrance or exits to the dub? (Closest she saw was approximately 50 feet from the south main entrance.) What, ii anything, did she do about that? (She didn't do anything about that.) How high was the stage on the premises? She thought it was approximately 10 feet.) If he were to tell her it was measured at 4 feet by the people who constructed it, would that change her opinion? (When she saw the stage that night, it looked approximately 10 feet.) Did stage diving violate any law to her knowledge? (Not to her knowledge.) How about slam dancing? (Not to her knowledge.) Did any other member of the crowd that evening come into physical contact with her? (When walking through the club it was full of people, yeah.) Did any other member of the audience threaten her physically aside from this one individual who bumped her unintentionally? (They had several people threaten the group of officers that walked in together. It was hard for them to arrest everyone in the crowd.) How did they threaten you? (They told the officers they were going to kick their butts and to get out.) Did you leave in response to those threats from the members of the crowd? (No, they left because they had a person detained.) Commissioner Smith asked Officer Bartel if the music was a live band? (Yes.) How many people were in the band? (Fve to six people.) Commissioner Romero asked Officer Bartel in her opinion was there an excess of 300 people in the facility that night? (She estimated 500+; there were quite a few people in there.) Mr. DeBerry stated next the City would like to request Sgt. Bobbie Green to testify. He has been out to the facility on a number of occasions and he will testify as to when he went out there and saw the occupancy level being exceeded. Mr. Kaplan objected to the next witness testifying as there was no report. He had no notice of Sgt. Green and what he was going to testify to. He had a right to know in advance what the truth, according to him, is going to be. Chairman Bosch said he was listed and idenfrfied as a witness. Mr. DeBerry responded yes, and the issue of overcrowding has been made known to the applicant for quite some time. The fact they are going to call police officers to testify as to their own personal knowledge as to the overcrowding situations, but certainly known to the applicant for a long period of time. On one hand, Mr. Kaplan objects to reports on the basis of hearsay and everything else. Now, someone is brought in to testify as to personal knowledge, and he objects to that. That pretty much leaves the City empty; they don't have anything to bring in as evidence. There has been ample notice to the applicant they were going to bring in police officers with personal knowledge to testify about overcrowding situations. He could see no objection to an officer testifying as to his personal knowledge. Mr. Kaplan had a report dated July 30, 1995, supplied to him in discovery. So he made no objections to Officer Bartel testifying. He had that report in advance indicating the subject matter of her testimony. Due process requires notice in advance of what the evidence is going to be against his client. He didn't have 21 Planning Commission Minutes August 21, 1995 any report from Sgt. Green; he didn't have any reference to the subject matter of Sgt. Green's testimony, no date, no subject marier, no nothing. Thal's not due process and he objected to his testimony. Chairman Bosch believed Mr. Kaplan was informed Sgt. Green would be a witness. Mr. DeBerry gave Mr. Kaplan the names of all the witnesses, where they could be contacted it he so desired, and to his knowledge, he chose not to contact any of the witnesses. So, he had ample opportunity to contact the witnesses and question them as to what they were going to testify to. Commissioner Pruett suggested moving on. (Over Mr. Kaplan's objections.) Sgt. Bob Green, Orange Police Department, Watch One, which is the patrol division working the night shift. He was testifying to the facts he observed on the night of July 2, 1995. He was assigned as a field supervisor. He was notified by Officer Frank Kelley who works the west end of the City that he had seen an excessive number of cars parked in the area oT Orangewood and Eckhotf, near the establishment known as The Tunnel. Officer Kelley informed him they had problems there in past with overcrowding. He said this was about the largest number of cars he had seen out in that general area on a Friday or Saturday night. Sgt. Green arranged to have several officers meet with him. They drove into the area, parked north of the location, and walked into the area of The Tunnel into the parking lot area on the south side of the commercial complex. As they walked in, they saw a large number of people and noticed a large roll up door at the back of The Tunnel. He could see into the establishment and saw it was rather crowded. There were a lot of people inside -• primarily teenagers. There were some security people out back. As soon as they observed the officers walking up, they immediately closed the large roll up door, which left access only by a standard door with a door handle. They left it open and it led into a passage way and into the actual dance area. As they approached, Officer Kelley introduced Sgt. Green to Jason. He was told he was in charge and possibly a part owner of the establishment. He walked into the establishment and had a rather hard time getting back. There was probably 25 to 30 feet from the door entrance to the back where he observed the dance floor. He saw it was extremely crowded. There was a lot of teenagers in there; some without shirts (not the females) dancing and sweating. It was a very heated area. He couldn't walk into the actual dance area. He could see the band, the dancers on the floor and a large congregation of people on the east side of the interior of the building watching the dancing. He couldnY estimate at that time how many people were in there because he couldn't see the entire dance floor. He felt at that time due to his experience in the past with overcrowding situations and parties, that there was a hazard in that area; there were too many people. It probably didn't conform to the maximum occupancy limits, as stated by the Fre Department. He didn't have a copy of the conditional use permit. He did not know how many people were allowed in the establishment. He figured it was probably 250 to 350 people that were allowed. He backed out of the building and was introduced to Jason by Officer Kelley. Sgt. Green asked Jason approximately how many people he had in the establishment that night. He told him approximately 350. He asked for a count and wanted to know H there was a counter and door man. Jason did not have a counter; that someone else in the establishment did have the counter. He estimated the crowd at somewhere between 250 to 300 people. He said the establishment was going to close. Sgt. Green advised him he would make note of the Tact there was an overcrowding situation, and that he would be monitoring the situation on a weekly basis and would return on the weekends they were open. As he backed out of the building, they closed the establishment. The entertainment had stopped. Aster approximately 100 to 150 people came out, he asked Officer Brance Skipper, a Master Patrol Officer, to get a count of the remaining people coming out. They estimated the crowd in the parking lot to be approximately 150 juveniles, young adults, and adults. At that time, they started counting. Officer Skipper got up to about 400 when he stopped counting, and they estimated with the total of the people in the parking lot and those that came out at a later time, there was probably 500 to 550 people inside the establishment. Commissioner Pruett asked what the height of the stage was?Sgt. Green responded from what he could see it might have been 4 to 6 feet off the ground.22 Planning Commission Minutes August 21, 1995 Mr. Kaplan said it was impossible for him to cross examine. So they didn't have any questions based on being precluded from having any questions by denial of due process. , Chairman Bosch disagreed with him as he offered him the opportunity, in the interest of due process, since hearing the testimony of Sgt. Green to question him if desired. Commissioner Smith asked at what time did the establishment close when the count was conducted? Sgt. Green said they arrived at the site at 10:45 p.m. The establishment closed at approximately 11:00 p.m.) The City moved on to a new issue. That issue was briefly touched on by Officer Bartel and that is the consumption of alcoholic beverages are not to be permitted on the premises. The City does not contend at any time that the applicant served alcohol, or allowed alcohol to be consumed inside the facility. However, they believe that alcohol was consumed on the premises. Those premises being defined as the parking lot adjacent to the facility. Because of reports of overcrowding, drug and alcohol use in the parking lot, Mr. DeBerry specifically requested the Police Department to conduct a survey of the premises on August 5, 1995. Attached as Exhibit B, beginning on Page 2 01 the Addendum dated August 9, 1995, is a report drafted by Detective Belville concerning his observations on that date. Detective Roger Belville, Orange Police Department, assigned to the Narcotics and Vice Unit, stated on August 5, 1995 he was given an assignment to work in an undercover capacity to go to The Tunnel located at 612 North Eckhott to examine the premises and determine the size of the crowd, to note any possible gang activity, security and if there were any drug or alcohol violations. At the time he arrived, he was also with his partner, which was Detective Clark Smith, who is also assigned to the Narcotics and Vice Unit. When they first arrived around 8:30 and 8:45 that evening, they noticed the parking was extremely limited. In fact, most of the patrons on Eckhoff were coming from the areas of the public streets on Sequoia and Poplar. They ultimately ended up parking their undercover car on Sequoia, exiting the vehicle and then walking the outer perimeter on foot. As they were walking in a westerly direction toward Eckhoff, they could see small groups of individuals standing by their cars. He could see these individuals as being under the age of 21, based on their size and descriptions. They were all drinking from open alcoholic containers -either cans or bottles. As they walked directly past them, they made no attempt to conceal any of their activities. Their purpose for being there was not to take any entorcement action, but only to gather the intelligence to report back to Sgt. Weinstein. Detectives Smith and Belville continued to walk the outer perimeter and again they must have seen five or six small groups of individuals standing by their parked cars. There were also other individuals who were seated inside their vehicles engaging in drinking alcoholic beverages. They crossed the street to the west side, approaching the south driveway. The south driveway was roped off. At that time, Sgt. Belville saw an individual male adult in his early 20's wearing a dark blue wind breaker jacket. On the back in white large letters was SECURITY. As he walked up to the individual, he asked ii he needed to pay him to be able to walk inside. The guy said no, you needed to have a ticket. They might be selling them at the front. Detectives Clark and Belville walked up the driveway and saw several individuals coming and going • extremely heavy pedestrian traffic. Detective Belville immediately detected the strong odor of marijuana. Having worked Narcotics for the past seven years, he was Tamiliar with the odor of burnt marijuana. They stood within 25 to 30 teat from the front entrance. His immediate concerns were the lighting conditions. There was only one light, which was a spot light above the front door. He saw they had a roped ott area where individuals were tiling single file trying to get to the front door and make entry into the premises. There was a bouncer patting down the outer portions of the clothing of the male subjects trying to get inside the complex. The two detectives hid in the shadows to observe all the activities. Within 5 feet, they saw a group of about five individuals sharing a marijuana pipe. This was about 25 feet from the front door where there was one bouncer. He didn't see anyone else wearing any security type clothing at that time. They stood for another 1/2 hour monitoring the activity and as he looked to the west, he could see other small groups of individuals gathering. Prior to walking to the west, some band members came out the front door. A female was carrying a set of drums to the parked truck that he was standing next to. She was yelling and screaming, saying she never has had that happen to them before. People inside were yelling and screaming and throwing people against others. It was so violent, the band walked off the stage. 23 Planning Commission Minutes Mr. Kaplan objected to the hearsay testimony. August 21, 1995 Detective Belville said as they walked westerly on the south side of the building, he looked at a male subject who was about 13 or 14 years old, who was drinking beer. Everyone in the group was drinking alcohol. When they approached the southwest corner of the building, he saw a group of individuals who were disappearing through the chain link fence. Upon taking a closer look at the fence, he saw a cut had been made and the people were going through the cut which led into the overgrown shrubbery that parallels along the 57 Freeway. It appeared they were having their own personal party down there. It appeared some of the people were have tail gate parties. He saw a security person in a blue wind breaker giving a friendly wave to some of these groups, taking no enforcement action. It was so obvious as to what these individuals were doing, the detectives wondered why the security person was not doing anything. The security officer then positioned himself against a glass door, located on the north side of the complex. Detective Smith walked up to this individual and asked if he could make entry into the room. They could see people sitting on the floor. The subject said no it was not to make entry; this is for people who want to leave. You can come out, but you can't enter through the door. It was the cool down room. They then walked as tar south as Sycamore, south of Orangewood. At approximately 11:00 they could hear the sirens and a little after 11:00 they arrived at the front entrance and were met by uniformed patrol officers who informed them of a violent situation and the officers were handling it. At that time they left the premises. Commissioner Cathcart asked Detective Belville how many security guards did he see wearing blue jackets with the words SECURITY on the back of the jackets? (Two.) Mr. Kaplan asked if he were inside The Tunnel that particular night? (No.) So, Detective Belville, you would have no way of knowing how many security people were inside? (That's correct, sir.) You were also not offering any testimony that any individuals were consuming alcoholic beverages inside the premises? No.) The number of individuals you included were minors, based on observation. Were the substantial majority of them consuming the alcoholic beverages on the public streets, like Sequoia? (A few were; the majority were inside the premises in the parking lots either on the north or south side.) To your knowledge, did you have any information that any owner or employee of the premises assisted any of those individuals in obtaining those alcoholic beverages? (No, he had no personal knowledge of that.) Or contributed to them consuming same? (No, sir.) Is it your experience that people tend to park on those streets and walk to the stadium to see an Angel's game irequently7 (He knows people utilize those public streets, yes.) So, those streets are pretty crowded when there is a game, aren't they with parked cars? He wouldn't say so, no.) When you were around the front door entry of the building, did you notice any individual making access to the premises with a container of alcohol in his hands? (No.) Did you notice anybody gain entrance to the premises with any kind of controlled substance that was visible? (Not that he saw.) Mr. DeBerry clarified what Detective Belville understood to be premises. Did you understand that to be inside the building, as opposed to in the parking lot of the facility? (Yes.) Did you state that you did see alcohol consumption in the parking lot and in or around the facility (the facility being the building itself)? Yes.) Did you indicate there was no enforcement action to your knowledge taken by private security? That's correct, sir.) Mr. DeBerry stated one of the findings that was made by the Commission upon issuing C.U.P. 1998-92 was that the proposed project would not cause a deterioration of bordering land use or create special problems for the area. They have heard some evidence on that already, but at this time the City requests that Janice Grace, the property manager for the subject facility, approach the podium and provide some testimony to the Commission of the particular problems she has encountered with both the tenant and also, he believed she was the property manager of some surrounding properties and has received some complaints from the tenants as well. He also noted Ms. Grace was being accompanied by her attorney, Dave Johnson. There is a contractual relationship between the tenant and property manager and Mr. Johnson has requested that the proceedings not address contractual issues between the property manager and tenant. Planning Commission Minutes August 21, 1995 Janice Grace, Davis Partners Inc., 4100 Newport Place #280, Newport Beach, made an informal list of events that have occurred. She began taking notes shortly after the beginning of June when she realized that there was an accelerated number of complaints from the tenants in the property. The tenants at her property all requested anonymity so she will refrain from using their names. On June 8 she sent a letter to the dub conoeming loud music at the property during the day, during business hours, that was disrupting the businesses of adjoining neighbors. One the 23rd of June one of the tenants called and complained that there had been a number of thefts, damage to cars, two break-ins to his particular suite, he claims to have observed gun totting patrons -she just made note of that information. The same date they received another complaint from a separate tenant that claims to have had one of their store front windows broken out. The tenant also claims that the dub had at onetime agreed that ft was probably related to one of their patrons and had agreed to pay for the damage, but then later reneged. -The tenant has never been reimbursed for that damage. On the 3rd of July one of the neighboring tenants' security alarms was activated. The tenant called her and complained that there was a riot at the property; however, when she obtained a copy of the police report, it stated the reason for the alarm was due to vibrations from loud music in the adjoining suite. On July 11 one of the tenants called and complained the wheels to a trailer that was stored on the property had been stolen and that a few days prior (over the 4th of July weekend)there had been a large party at the property in which the dub had fenced off an area of the store front parking lot and placed bean bag chairs outdoors so that patrons of the club could entertain themselves,blocking several store fronts in the process. On the 12th of July she spoke with Jason Brooks about the party, explaining that she had some complaints about fendng off an area of the parking lot. Jason denied this had occurred until she told him she had photographs of the party, and the fence and bean bag chairs that were placed within the fendng. On the 17th, the tenant that had taken the photographs delivered them to her office. Within the packet were some unused bullet shells and some flyers for advertisement for future events at the dub. On the 20th graffiti appeared on the property across from the club. On August 3, she got a complaint from one of her tenants that the entire parking lot was full; it was jammed with cars and people so that he could not enter for his own use, and there were probably in excess of 1,000 people at the property. The following day her office received a call from either Jason or Richard,asking for reimbursement for the transformer that had blown out at the property, and casually mentioned that MTV had been at the property filming that day. She could only assume that the way the transformer got blown out was by excessive use from whatever equipment that was being used at the time for such an event. And on the 9th of August she had complaints from two tenants that there was so much broken glass -beer bottles and such in the parking lot -they were unable to use the parking spaces in the front of their businesses.Commissioner Pruett asked Ms. Grace after talking to the owner about the bud music during the day, were there other complaints regarding that issue? (Yes. K occurred on several occasions.)Commissioner Smith asked how long Ms. Grace has been the property manager of the property? ( Since the beginning of June.) Did your tenants state why they wished to remain anonymous? (Yes, because of retribution.) The incident on the 17th of July with unused bullets -where were they found? (In the parking lot, near the rear entrance where the roll up doors are. The club uses the rear entrance as their front entrance, whereas the rest of the tenants use the other side.) Was that incident or any of the other inddents stated tonight reported to the police? (Many of them were, yes.) Was the incdent involving the finding of the ammunition reported to the police? (She didnY know, because that occurred before she started managing the property. On the date the tenant found the unused shell, he also found one lodged into the back door of his suite.) Do you have a working relationship with Mr. Brooks? (Yes.) How frequently do you communicate with him? (Up until very recently she communicated pretty regularly with them, but most recently because of misunderstandings between what she communicates and what he communicates back to her, she requested all communication be reduced to writing.)Commissioner Romero asked about the communication she had with the individual; was N largely with regard to complaints of the other tenants? (Ms. Grace said in particular the one event that caused her to ask for things to be placed in writing was she has such a trash problem at the property, she requested Mr.Brooks have a janitor there 5 times a week to make sure the property is properly cleaned for the rest of the tenants because of the problems there. And, at one point she thought she had an agreement that was Planning Commission Minutes August 21, 1995 going to happen and then later, he decided that was not their agreement. That was the main event that caused her to do that.) Mr. Kaplan moved again to have Ms. Grace's testimony removed from the record based on the tad N is rank hearsay. All she's doing is relating what someone else, who is unidentified, has told her and they donY have the opportunity to cross examine or examine any of those people. Mr. Kaplan asked Ms. Grace, with regard to the loud music that was disturbing on June B, did she hear it personally? (No.) You were relying on what some tenant told you? (Yes.) With regard to the June 23 tenant complaint regarding thefts and car damages, did you see that person? (No.) Are you relying on what some tenant told you in that regard? (Yes.) With regard to unused bullet shells found July 4, did you see that personally? (Yes.) Did you examine the bullet shells? (She had them in her possession.) Did you see them located near the rear of the dub? (No.) Are you relying on what someone told you in that regard? (Yes.) Do you have any information that any employee or owner of the club placed the bullet shells near the dub? (She didn't know.) Do you have any information that any patron of the club caused those bullet shells to be placed in the dub? (She didnY know.) Do you have any personal information with regard to any of the other events that you've testHied hereto, or is it all based on what some anonymous tenant told you? (The trash problem does exist; it is something the tenant has acknowledged. The noise problem does exist; it is something the tenant has acknowledged.) How about the secudty alarm going off, do you have any knowledge of that personally? (No, but there is a police report on ft.) You didn't hear the alarm go off on July 37 (No.) On July 11, did you see trailer wheels stolen or missing? (She had photographs of the trailer with the missing wheels.) Can you identNy the person who took the wheels? No.) Do you have any information that it is an employee or owner of the dub? (No.) Any information that i[ is a patron of the club? (No.) Any information that any owner or employee of the club caused grafffti to be placed on the property across from the dub? (No.) Any information that any owner or employee or patron of the dub caused the store front to be broken, as you testrfied on June 237 (No.) Any personal evidence that any owner, employee or patron of the club caused broken beer bottles to be cast about the parking bt on August 9? (No.) Commissioner Pruett interjected, with the broken window, although Ms. Grace did not see the broken window nor who broke il, she did have a discussion with Mr. Brooks and he indicated he felt one of his people did do the damage, is that what he heard her to say? (Ms. Grace said Mr. Brooks had a discussion with the former property manager in which he acknowledged responsibility, and at that time promised to pay for it, but later reneged when she came on board.) Chairman Bosch asked Ms. Grace whether she had seen the photographs of the fencing off of the parking lot, blocking entrances to other tenants? (Yes.) Mr. DeBerry explained the purpose of the testimony was for Ms. Grace to provide the Commission with some information relative to the complaints she's received from her tenants. Obviously, she's not going to have personal knowledge of broken windows. Perhaps, by deduction, if the tenant leaves in the afternoon and the only facility that is operating at night in the area is The Tunnel and there is all of these problems which are there when they arive in the morning, there can be an implication, although it is not direct and not personally observed, that these conditions were caused by the operation of The Tunnel. Mr. DeBerry asked Ms. Grace regarding the graffiti incidents, was there any indication (i.e., did the graffiti make any specific reference to The Tunnel, to your knowledge? (No.) With respect to the trash and the graffiti, has the property management, on its own initiative, ever cleaned up the trash and graffiti? (Yes.) So, the property manager has taken the responsibility to clean up the trash in the surrounding area? Yes. ) Commissioner Pruett asked if the trash clean up is done the next day or is it done several days later? (Ms. Grace responded typically in an industrial park like that, sweepers would come through once a week. That's what they have at that property. When she started at the property, she was under the assumption the sweeper must be doing a terrible job and terminated them. She hired somebody else, and still 26 Planning Commission Minutes August 21, 1995 continued to have the problem. Once a week is very adequate for that type of property, but at this property it is not. She still has trash pick up once a week and it is not adequate.) Commissioner Romero asked if there had been any complaints against any other tenants for any type of trash accumulation, or any complaints with regards to other tenants? (No.) Mr. DeBeny said they've already heard a little bit ct testimony about the next issue already, but he referred the Commission to the June 19, 1995 stall report and the number of police calls to the applicant's faality between December 30, 1994 and March 30, 1995. There are some summaries in there where police calls were compared to night dubs, which are considered trouble spots in the city, and also there is a comparison between police service calls to the applicant's facility and compared to those of the businesses in the surrounding area. Because of the nature of the businesses that surround the applicant's fadlity, they would not antidpate police calls to any of the businesses would be on par with the night club. The purpose of the summary is to indicate it's not the area which is causing the poise call. He had three police officers to testify to this portion. Fret, he will call Officer Kelley to testify and this will be concerning conversations he had with a former security personnel at the applicant's facility. In particular, a conversation he had on April 14, 1995. For reference, a copy of Officer Kelley's report is inducted as Attachment 4, Page A-4.1 of the June 19, 1995 staff report.Mr. Kaplan had an objection to each and every witness testifying as to what someone told them as it was hearsay. He wanted that objection noted for the record as to each and every witness. Hearsay should not be admitted at all.Officer Kelley, Orange Police Department -Patrol Division, said in January, 1995, he was working the west end, which is the border from Cambridge to the Garden Grove border line. The Tunnel was brought to his attention by the activity of the crowds there. He took it as his own personal project and informed his Sergeant he would assist however he could in deterring auto theft burglaries in the parking lots. He had set up several code 5 stake outs -watching undercover to see if they could deter any of the auto thefts - catching something in progress. During that time he had a chance to meet some of the security officers on the grounds. After two to three months they got to know each other well. One specific individual by the name of Willie Phillips was the head security officer for The Tunnel. There was another person, Mike DeGrout, who was a security personnel working under Willie. He spent a lot of time at The Tunnel. One specific incident was a major fight involving the security officers. That was on a Friday night; then on Saturday night Sgt. Ray Peterson, Orange Police Department, received a phone call from the manager, Jason Brooks at The Tunnel. He said there was the possibility of a drive by shooting. He was told that through rumor. Oiticer Kelley spent five hours on foot patrol at The Tunnel to try and deter the possible activity that Saturday evening. He was building a close relationship with the security personnel. It was only him that Saturday; the other officers had to take care of the rest of the City. The security officers and Officer Kelley gained each other's trust and confidence as to what they could do to rectify the problems at The Tunnel. On April 1, 1995 he was ddving through the south parking lot of The Tunnel and he noticed Willie Phillips was usually out in the rear parking lot, just very visual. He didnY see Willie there. Down the road he saw Mike DeGrout. He made contact with him. Mike tad him at that point in time he couldnY talk to him, but would talk to him later. Almost to the point of pushing him away. That wasnY his normal M.O.; he was usually very friendly. He left and then returned later (approximately 1:45 a.m.) The club was still open. He asked where Willie Phillips was? He was told he quit the weekend before because Willie was fed up with the lack of The Tunnel's management regarding the cooperation due to their security and safety reasons. Officer Kelley asked Mike why he was still there and he said he was leaving to go back up to the state of Washington. Mike told Officer Kelley the reason why he was hurrying him away earlier was because he didnY want the personnel at The Tunnel to observe him speaking to an Orange police officer. The conversation they were having at this pant in time, there is a finder block wall that runs east and west, dividing The Tunnel from the Orange National Bank. They were around the cinder block wall, away from The Tunnel, in the bank parking lot so Mike would not be seen by anyone lrom The Tunnel. Mike told Officer Kelley on May 1 or March 15 that he was instructed by Jason Brooks, who was the manager of The Tunnel, that he and Willie Phillips were to go out to the very east entrance of the south parking lot, which is used as the front door, to sit out there with a flash light and Willie would be where he usually stands by the 27 Planning Commission Minutes August 21, 1995 door of the entrance to The Tunnel at the south alley and 'rf he observed a police car driving anywhere in the area, (after 2:00 a.m.) he was to take his flash light, flash ff towards Willie, Willie would make some kind of gesture inside and the club would be shut down. Mike told him the dub stayed open after hours (after 2:00 a.m.) because they didn't want to dose down. Mike and Willie were not comfortable with it so they basically played a game and after 2:00, they flashed a light and told Jason the cops were seen and then the club was closed down. Mike also told him he was quitting and going to Washington. Officer Kelley telephoned him during the week just to confirm the story he had told him and explained to him what he was going to do. He was going to write this down on paper, to which he had no problem with that at all. And he stated, by the way he was terminated. The staff saw him speaking to Officer Kelley aril that he was terminated by Jason because he was seen talking to an officer. On July 2, 1995, he was on patrol in a marked police unR, driving up Eckhoff. There were cars parked on both sides of the street, all the way up to Collins. All the side streets were filled with can; as well. He contacted Sgt. Green and told him he believed this activity was related to The Tunnel. A bunch of officers went down there and made contact with the new security personnel out in the parking lot. They then got Jason Brooks to come out. Sgt. Green asked Jason what his maximum capadty level was and Jason stated it was 500. Sgt. Green had asked Jason if he could get a copy of his permit showing the actual occupancy number. Jason went to get that copy, but returned five minutes later because he couldn't get to his office to get the paperwork. The officers went inside at that time to look at the crowd. There was absolutely no way in any type of situation you could get from one end to the other end o1 the audience area in a timely fashion. It was packed with people. When the club closed (approximately midnight) the roll up doors came up and the people were coming out. Everyone was soaked to the bone with sweat. It seemed like the people were panting because it was so hot in there and it was congested. They were taking a manual count as the people were coming out. Officer Skipper, he believed, counted at least 150 people out in the parking lot. There were approximately 300-400 people coming out of the roll up doors -- there was easily 500 people in the parking lot. This was one of the nights they had a punk rock group. Mr. Kaplan asked ii Officer Kelley ever have an opportunity to do any kind of background check or investigation of DeGrout? (No.) Would you have any information as to whether he was fired because ft was determined he was abusing chemical substance? (No.) Do you have any knowledge or information as to whether DeGrout had been caught by people at The Tunnel in possession of a controlled substance? No.) Do you have any idea why he was terminated other than what he told you? (He told Officer Kelley he was leaving.) DidnY DeGrout tell you he was tired? (Cored.) Did you ever try to contact anyone at The Tunnel to determine why DeGrout had been terminated? (No.) You had a relationship with Mr. Brooks or at least talked to him a couple of times, didnY you? (Officer Kelley has talked to Mr. Brooks before.) Was he cooperative when he spoke with you? (Some of the times.) Did you ever ask Mr. Brooks about the allegation DeGrout made of the flashlight caper, do you know? (No, because at that time Mr. Brooks and Otiicer Kelley severed the relationship they did have. He was no longer too cooperative with Officer Kelley so he didn't see any reason to entice him.) On July 2 the manual count, in your estimation, the number of people that were in the premises is just that - an estimation? (It was counted by Officer Skipper.) You didn'tcount it at all then? (He was watching the crowd as they came out.)Commissioner Pruett asked Officer Kelley as he was watching the group, would he say the group was greater than 300? (He was standing with his back against the wall, next to the roll up doors that were open as they were leaving. At one time in the parking bt, it was completely jammed - he would say at least 300 to 400 people. His background prior to being a police officer was working at Irvine Meadows and Pacific Amphitheater as a supervisor for the lawn area so he has a pretty good estimation on crowds.)Next, the City will call Officer Schmelter to provide an overview of an incident which occurred on August 5,1995. Copies of that report are attached as Exhibd C, Page 7 of the August 9, 1995 staff report Officer Craig Schmelter, Orange Police Department, reported on August 5, 1995 at approximately 2300 hours he responded to The Tunnel in reference to a tight. It came out as approximately one hundred people trying to tear down the back door of the building. Upon arrival, they had one subject down in the alleyway. He was unconscious and bleeding profusely from his face and head. As he was standing there,one of the security guards came up to him and said he had been stabbed in the back. He had a stab 28 Planning Commission Minutes August 21, 1995 wound (puncture type wound by his left kidney). They took one subjed into custody at the time. While searching for the weapon (knife) that was used in the stabbing, another officer came across the security guard's vehide. In the vehide was a .357 Magnum with black talon rounds and also an assault type machine pistol that had two 30 round magazines. After that, he responded to the hospital. The subjed, who was unconsdous, was beaten in the head with a steel pipe and then had been stomped on, punched and kicked by subjects in steel toed boots. He had two skull fractures; one on the Jett side of his head and one by the right eye socket and he needed 17 staples in his head. The other was just a stab wound and he didnY know the status on il. Commissioner Prueri asked K this occurred inside the building or outside the building? (What had happened from talking to the security guard, some of the subjects had started to fight with the band. As they tried to remove the subjeds, the security guard was stabbed. They got most of the subjeds involved in the tight outside where they joined with friends. That's when they started to beat on the door. The subjed taken into custody was a skinhead, attached to the Northwest Orange County, which is a skinhead group in the Seal Beach area. At that time, once they were outside, {hey saw the primary victim who was a Middle Eastern, and at that time they beat on him.) The people banging on the door, what was the reason? Did they have tickets to get in? (From Officer Schmelter's understanding, it started from people who were escorted out of the dub at the time of the fight with the band.) Commissioner Smith wanted to know who called Officer Schmefler to the scene? (He didnY know who called the police; they were just advised by dispatch.) Mr. Kaplan asked during the course of Officer Schmetter's investigation of this matter, did you determine ft was essentially a racist incident? (On the one victim, yes; on the security guard, no.) The victim was African-American? (No, he was Middle Eastern.) And the perpetrators, as near as you could tell, were a white radst group? (That's how they were described.) Was he familiar with the operational polities of The Tunnel? (Not really.) Would he have any evidence that the operators of The Tunnel promote or foster radst attitudes? (Not that he was aware of.) Would he have any information they approve of racist attitudes? (No.) Did he have any information that any representatives of The Tunnel knew in advance that this racist attack was going to occur? (No.) Any information they partidpated in it in any way? (No.) Any information that anyone connected with The Tunnel approved of it? (No.) Is there any information that The Tunnel could have done anything in advance to prevent it? (No.) With regard to the security guard and the weapons found in his vehicle, there is no evidence is there that any representative of The Tunnel encouraged him to have these weapons? (No.) Or, approved of him having those kind of weapons? ( No.)Or, that they knew he had them? (He didnY know.)Mr. DeBerry asked d the situation was, in Officer Schmelter's estimation, based upon the crowd size and everything else, beyond the ability of the applicant to control the situation? (It was way above their ability to control R.) Could you tell us what black talon rounds are? (As far as he knew, they're illegal rounds, in which the round expands and shreds into small pieces, iniliding serious injury.)Mr. I~Beny stated Officer Wallick was also available. He wasnY going to call him as a witness, but if either the Planning Commission or applicant has any questions of Officer Wallick, he believed he could testify as to two reports. One in particular was an incident which occurred on February 11, 1995 and that involved a tight among 20-25 individuals. Then, there was another incident that occurred on January 14, 1995. The Planning Commission does not have a copy of the report, but they have a summary. A copy of the report was provided to the applicant. Essentially, the report indicates a 17 year old female was grabbed by numerous subjects who fondled her breasts and legs, and who was also punched in the face by one of the subjects. If you have any questions concerning those reports, the officer could testify to them.The last witness on this issue the City will call is Sgt. Barry Weinstein. Sgt. Weinstein does not have personal knowledge, to his understanding, as tar as going out to the applicant's facility and seeing what events occur there. His role is to go through the summaries that were provided to the Planning Commission, which compared police activity at The Tunnel during a relevant period. And at that time the comparison, because of the requirement that they get the information to the applicant before Planning Commission Minutes August 21, 1995 revocation hearing, was fimited to the end of March, 1995. All the comparisons are based on a period from December 30, 1994 to March 30, 1995. It was noted in the staff report that was a period of very high activity for The Tunnel. It appears, and depending on what information is received, the applicant has indicated in a letter (previously) they were in that facility September 19, 1994. From September 19, 1994 to December 29, 1994, while there were more calls received at that facility than in previous years, they certainly were not of this magnitude. Sgt. Barry Weinstein, Vice-Sgt. for the Orange Police Department made some brief comments, but lasting. He had a summary of adivflies for January through August, 1995. He listed 14 responses for silent alarms, including a robbery alarm and 13 burglary alarms. There were 8 disturbances, which were listed as neighbors calling for complaint of noise, music and out of those 8 disturbances are 4 street fights at the 612 North Eckhoff location. There was also a liquor law violation which is a minor in possession of alcohol. There were other narcotic drug laws, which include marijuana violations. There were 3 thefts,which are auto burglaries. As of July 30, you are aware of the overcrowding inddeM that also involved an officer's safety issue. Then, of course, in August they had the assault with a deadly weapon involving a patron, which was a serious condition on the patron and security guard. The security guard was also found to have illegal weapons in his vehicle. These items came to his attention and he was also requested to do a comparison of alcohol•related establishments in the City of Orange compared to The Tunnel,which is non•alcohol. His comparisons showed that the Police Department responded to 8 calls at Orchids Night Club, which is on South Main Street. Over the first three months of 1995 two of those calls involved small fights and one large fight involving approximately 50 people. The Police Department responded to 10 calls atCasey's Bar, which is on Tustin Avenue. Over the first three months of 1995 two involved small fights. Casey's in the past has been the site of larger fights. The Police Department responded to 3 calls at Suede's Billiards Pallor, which is also on Tustin Avenue during the same three-month period. The Tunnel had a minimumof 50°k more requests for police services during the first three months of 1995 than the other three locations. They believe these calls constitute excessive police services and this location is higher in calls for service than most current alcohol-related establishments in the City, even though The Tunnel is anon-alcohol establishment. He was shocked and appalled by the report regarding the security personnel being instructed as to not calling the Police Department, and during that time period there was a drop off in calls for service at The Tunnel. He believed The Tunnel to be a danger to the youth of the community, a problem for the community at large and a definite burden to law enforcement.At The Tunnel, the number of calls for the first 3 months in 1995 included the 14 silent alarms, 4 disturbances (street fights), which totaled 18 calls. At Orchids, the 8 calls included the 3 fights and 5 sBent alarms. The same for the other locations -• it they were not fights, they were silent alarms.Mr. DeBerry went back to the June 19, 1995 staff report. He did not have that extensive of report when the staff report was prepared. The main difference is the false alarms. In the inftial staff report they did not include responses to the false alarms at 612 North Eckhoff. If you look at Attachment6, Page A-6.4, there were 15 calls forservice to the applicant's faclity. It does not appear that any of those false alarms were included, and that's why there is such a difference. For purposes to be fair to the applicant, the comparisons being made would not include the false alarms. For comparison sake, he directed the Commission's attention to the reports which are noted in Attachment 6 and theincidentsdated from 12/30/94 EV-17 through up to and including EV-2, which is dated 3/25/95. There are 15 police calls and that formed the basis of the staffreport. The police calls to Casey's for comparison were 10. Two of those involved small tights. Then, the second aspect of the report was to compare the calls to The Tunnel during that time period to the number of calls at 15 businesses in the surrounding area. During that relevant time period, those 15 businesses total had 19 calls compared to The Tunnel's 15 calls. None of those facilities had more than 4 calls.Commissioner Pruett wanted to know K Sgt. Weinstein had been to each of those facilities -Orchids,Casey's and Suede's1 (Yes, he had.) Are the facilities similar or what is unique about each of them?Basedon the location, no, because Casey's and Suede's are located on Planning Commission Minutes August 21, 1995 district, as opposed to the commercial-industrial district where The Tunnel Is. Orchid's on South Main is more commercial, but is also in a business area (shopping complex).Mr. Kaplan wanted clarification from Mr. DeBerry because he had a representation from him by a letter dated August 3, 1995 that the relevant time frame with which they were to be concerned with excessive police service was December 30, 1994 through March, 1995. If that still holds, he will know how to examine the witness.Mr. DeBerry's response to that would be for comparison purposes (i.e., comparing the number of calls at this tadlity, to the number of calls at otherfacilities, yes (Mr. Kaplan's statement is correct). However, that certainly does not preclude the Cky from bringing in additional information which occurred after the continuance was granted. Especially, in his opinion, evidence that is relevant to this proceeding and that's why those additional police reports were brought in. Also, he thought given some evidence presented at this hearing, that security personnel, it appears, may have been instructed not to calf the police, it tends to lend less credibility to any comparisons made after April.Mr. Kaplan asked Sgt. Weinstein if he had a document that is labeled Attachment 3 to CUP 1998- 92, Page A-3.1? (No.) He handed him a copy of that document. It purports to be an official computer run printout.Is that what ft is7 (Yes.) Does this page indicate that between December 30, 1994 end March 25, 1995 there were 16 calls to 612 North Eckhoft? (Yes.) Of those 16 calls, they oxurred on only eight dates, is that right? (Yes.) So, in the tirst 90 days of the relevant time period there are eight days on which police calls were made to 612 Eckhoff, isnYthat corned? (that's corned.) With regard to those calls, ' rf you would take a bokat Page A-3.2, starting with EV-1, does that indicate in the record not an offense? (Yes.) Then take a look at EV-2, which is March 25, 1995, that indicates the complaining witness was the owner of the premises, doesnY it? (Yes.) Now, look at EV-3, incident on March 25, 1995 and does that state gone on arrival -not an offense? (Yes.) Take a look at EV-4, that is March 4, 1995, does that indicate the complaining person was the manager? (That's corned.) So far, there are two situations where representatives of The Tunnel were indeed reporting misconduct to law enforcement? (That appears to be so.) li doesn't appear they were covering up or hiding inddenis from law enforcement? (He couldnt answer the question on the two inddents.) These two incidents donYindicate that they're covering up anything? (That's corned.) If you would take a look at EV-5, February 11, 1995, does that indicate that security called for law enforcement? (It indicates security was requesting assistance where a subject is disturbing the peace.) That would indicate another incident in which representatives of The Tunnel were reporting to and cooperating with law enforcement, would it not? (Yes, it would.) Take a look at EV-6;that's an inddent of January 21, 1995. Sse that? (Yes, that's the gang types in the lot.) Does that say the complaining person or complaining witness was the owner who reported this? (Yes, it does.) Would you take a look now at EV-10, an incident of January 21, 1995, does that indicate as to what happened simply gone on arrival? (No, EV-10 says theft over $400; yes, that's corned -gone on arrival.) tf you take a look at EV-11, an incident of January 20, 1995, does that indicate not an offense? (Yes, it does.) Take a look at EV-12, an incident of January 14, 1995, does that indicate not an offense? (Yes.) And, EV-16, an event of December 30, 1994, does that indicate that our security staff at The Tunnel was holding the suspect?Yes, it does.) So, again, that would be another inddent in which the security people from The Tunnel were cooperating? (It would appear to be.) Based on your brief survey of these materials have you any quarrel with the proposition that of the 76 inddents listed, between December 30, 1994 and March, 1995,four of them are listed as not an offense at all? (He couldnY answer it yes or no.)Chairman Bosch asked for clarification.Sgt. Weinstein stated where is says not an offense, what that means is, if the police arrive and there is no crime in their presence and they don't witness a crime, there is not an offense. However, for example EV- 72, as it states, disturbance, neighbors, music, noise, 415, which is the disturbing subjects, 4 subjects in a blue Honda, subjects throwing bottles at security guards, threatened to shoot them. While on call to the station, the subjects left the parking lot and they were still in the area and it gives Planning Commission Minutes August 21, 1995 Mr. Kaplan continued, with the calls to Casey's (skip over to Page A-5.t) H you look at the relevant time period again, that would be EV-27, December 30, 1994 working up to EV-17, which is March 26, 1995,would you agree during that time period there are 11 calls? (Yes.) Wdh regard to Orchids, starting at EV-13, which is December 25, 1994 working up through 11/-4, which is March 24, 1995, do you get 10?Yes.)Commissioner Cathcart said even though the management may have called the Police Department and were helpful in helping out and some anonymous calls were made and the police showed up, but there was no aims, isn't that still considered a police call? (Sgt. Weinstein stated that was oorred.)Sgt. Weinstein clarified one Nem. When they referred bads to the location of The Tunnel, EV-11 was an anonymous call; however, EV-12, which is the one talking about the subjects throwing bottles at the security guards and threatening to shoot them, and while on the call, the subjects left the parking lot, that was called in by the security guards and what he reads in the computer printout is that the incident was verified on the phone by the security guards.Chairman Bosch asked 'rf people call for police service, does that indicate they believe a crime has been committed or that they need assistance because the situation may be out of their control? (Definitely one of the two, that's correct.)Mr. DeBercy referredto EV-1, that's Page A-3.2, Attachment 3. In reading the summary, could Sgt.Weinstein tell him how many officers responded to The Tunnel? (On EV-1, three officers responded.) In the staff report they did not go into the detail of listing not offenses because they were making comparisons of police service requests. They have noted particularly violent incidences, but the sole purpose was to make wmparisons. If he could refer the Commission to Attachment5, Page A-5.5, the applicant was using Casey's as an example and apparently making much ado about the fad that some of the calls to the applicant's facilities were listed as not an offense. For the comparable time period,rf the Commission looks at EV-20, March 17, 1995, which is listed inthe comparisons as one of the calls to Casey's. It's listed as not an offense. You look at EV-24....Mr. Kaplan objected to this line of questioning.Mr. DeBerry stated comparisons were made between the applicant's attorney, Mr. Kaplan, and he took great pains to point out that some of the calls made to The Tunnel were listed as not an offense. He was simply doing the same thing, presenting relevant evidence contained in the packet to indicate that other comparable facilities had similar type of calls. It's relevant to show the comparisons still stand. (Sgt.Weinstein concurred with the statement.)Mr. DeBerry had personal knowledge to the next few items. That will conclude the case as far as police activity. Now to move on to other conditioned violations. Three of the conditions listed in the CUP were submission of a hold harmless agreement, provision of insurance naming the City as an addRional insured,and payment of the Transportation System Improvement Program fee. The applicant was notified by letter on April 17, 1995 that thosethree conditions of the CUP had not been satisfied. Despite the City's demands to comply with these conditions...Mr. Kaplan objected. How could counsel testify as a witness and be counsel in the same case? He objected and wanted it noted for the record.Chairman Bosch stated Mr. Kaplan was out of order.Mr. DeBerry stated why he was required to testify because both the hold harmless agreement and the insurance document were suppose to be submitted to the City Attorney's office for review. So he would have personal knowledge as to whether or not those documents have been submitted. And, they have not. In addition, the TSIP fee still has not been paid. In the Commission's packet there is a letter dated August 3, in which the Cily requested payment of the TSIP Planning Commission Minutes August 21, 1995 demanding payment, he went back to the applicant's letter of September and he thought the City was fully cognizant they are responsible for at least part of the delay. The City did receive a letter from the applicant in September requesting that payment be made over a 12 month period (i.e., payments to begin October 16, 1994). Apparently, there was a lack of communication and no payments were ever made. The reasons dted in the applicant's letter for not making the payment in full was that the business had just got started and that there were insufficient funds to pay the fees. A letter was received August 16 from the applicant in response to the City's demand for payment of the TSIP fee. He thought the applicant's statement that there was never a request to have the TSIP fee deferred over a one year period is correct. Mr. Kaplan handed the Clerk a series of Exhibits which have been labeled A-G, which he would like to have received into the record. Exhibit A is a first discovery demand in this matter dated July 21, 1995;Exhibit B is a supplemental discovery demand dated July 31, 1995; Exhibit C is a second supplemental discovery demand dated August 8, 1995; Exhibit D is a letter dated August 14, 1995 to the City Attorney objecting to certain evidence being received in this matter; Exhibit E is a letter dated July 13, 1995 regarding a settlement proposal; Exhibit F is a letter dated July 27, 1995 following upon that settlement proposal; and Exhibit G is a letter dated August 18, 1995 wRh an additional settlement proposal.Chairman Bosch thanked Mr. Kaplan and stated the Commission had previously received copies of same.Mr. Kaplan proposed to have Mr. Jason Brooks testify and he would prefer to do it by question and answer because it will go a lot faster than having him narrate, unless someone has some strange objection.Jason Brooks, 27353 Paseo Placentia, San Juan Capistrano, responded to Mr. Kaplan's questions: You have an ownership interest in The Tunnel? (Yes, he's the coowner.) When did it start operating? ( It opened to the public on September 15, 1994.) Could you tell him, does The Tunnel provide a venue that otters live music? (Yes, it does.) Does k also otter dancing? (Yes, it does.) Does it also otter entertainment in the nature of singers? (Yes, it does.} Staged entertainment of that nature? (Yes, it does.) Does it also otter recorded music? (Yes sir.) To your knowledge, since the inception of operations at The Tunnel, have you ever advised any of your security staff not to cooperate with law enforcement?Never.) Havs you ever advised any of your security staff not to report misconduct on the premises to law enforcement? (Never.) Are you familiar with a Mr. Mike DeGrout? (Yes, he was.) Does he work for you any longer? (No he doesn't.) Was he terminated? (Actually he disappeared and R was later found out he moved away, so he was never spediically terminated. But he no longer works for him.) Did you come to find out after the fad that Mr. DeGrout was an abuser of controlled substances? (Yes, he did.) Did you ever instruct Mr. DeGrout to signal with a flashlight or in some other means if law enforcement was approaching so that you could keep the dub open after hours? (No.) Did you ever keep the dub open after hours? (No, sir.) How long did you know Mr. DeGrout? (He knew him for about three months during the period that he worked for The Tunnel.) Based on that contact with him, and what he found out after he disappeared, did Mr. Brooks have an opinion as to his credibility? (He was very hurt to find out the spedfirs of his lifestyle and the credibilHy - he would say it was not very credible. That, on numerous occasions he was known not to speak the tMh about many situations.) And, if he had not disappeared, would you have terminated him? (Most definitely.) With regard to the TSIP issue, Mr. Kaplan had a document he would like to label Exhibit H, which is a two page document. One is a memo dated July 21, 1995 and one is a letter dated August 16, 1995. Showing you Exhibit H, can you recognize the first document (July 21, 1995 memo)? (Yes.) What is it? (This is a letter that Mr. Brooks wrote and faxed to Chuck Glass in the Traitic Department and specific subject is the TSIP fee.) Do you recognize the second document, dated August 16, 1995T (Yes, this was his response to the letter he received written on August 3, from Harry Thomas. This was his reply to that letter.) And, are the contents of the two documents true and correct to the best of your knowledge? (Yes they are.) May he safely assume they can dispense with having them read since they are part of the record? (Chairman Bosch replied yes.) Do you recall contacting the City of Orange on or about September 4 regarding payment of a TSIP tee? (Yes.) And what was the result of that contact? (The result of that conversation over the counter was that an agreement was going to be drawn up by the City and he was going to be contacted on the payment arrangements.) Were you ever contacted thereafter in writing by the City? (No, sir, not until he actually 33