HomeMy WebLinkAbout09-18-1995 PC MinutesMINUTES
Planning Commission September 18, 1995
City of Orange Monday - 7:00 p.m.
PRESENT: Commissioners Bosch, Pruett, Romero, Smith
ABSENT: Commissioner Cathcart
STAFF
PRESENT: Joan Walff, Senior Planner;
Stan Soo-Hoo> Assistant City Attomey,
Gary Johnson, City Engineer, and
Sue Devlin, Recording Secretary
PLEDGE OF ALLEGIANCE
IN RE: APPROVAL OF MINUTES FOR THE AUGUST 21 1995 AND SEPTEMBER 6. 1995
PLANNING COMMISSION MEETINGS
Moved by Commissioner Pruett, seconded by Commissioner Romero, to approve the Minutes of
August 21, 1995 and September 6, 1995 as recorded.
AYES: Commissioners Bosch, Pruett, Romero, Smith
NOES: None
ABSENT: Commissioner Cathcart MOTION CARRIED
IN RE: r'ONTINUED HEARING
1 -REVOCATION OF CONDITIONAL USE PERMIT 1998-92 -CLUB REMIXXITHE 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.
NOTE: This project is categorically exempt from California Environmental Quality Act (CEQA)
per State CEQA Guidelines Section 15321.
This item was continued from the August 21, 1995 hearing.)
The public hearing was re-opened.
Chairman Bosch stated the Commission received a copy of the fax from Joshua Kaplan, the attorney for
the applicant, advising them the operator had permanently ceased all operations solely as the result of
adverse economic factors per Mr. Kaplan. And stated that further hearings wdh regard to this permit were
moot and that they denied specifically any wrongdoing or misconduct as alleged with regard to these
proceedings or otherwise, and claimed to voluntarily withdraw from and cease the aforementioned
operations. The Commission also received a copy of a letter that Mr. DeBeny faxed back to Mr. Kaplan.
David DeBerry, Assistant City Attorney, faxed the response to Mr. Kaplan and thanked him for his
advanced notice, noting they would proceed with a presentation to the Commission and recommend
revocation. The CUP runs with the property; not with the tenant. In effect, this tenant could abandon the
use, but a new tenant could subsequently come ~ and run the same type of operation.
Planning Commission Minutes September 18, 1995
might came in under a different name and run the operation. From staff's point of view, they recommend
to go forward with the evidence to be presented and have the Planning Commission make their
recommendation to the City Council.
It was the Planning Commission's concurrence to continue with the public hearing and take action.
Chairman Bosch, for the record, asked if Mr. Kaplan or any of those who are operating the Club
Remixx/The Tunnel were present? The record shows no one was present in response to the request.
Mr. DeBerry had additional evidence for the record. He referred the Commission to Page 35 of the
Minutes, toward the bottom of the page, regarding a discussion that took place between Mr. Kaplan and
his examination of Mr. Brooks. In particular, Mr. Brooks had indicated that Officers Jim Hudson and Alan
Rieckhof had commended him for his security operation and had said he was doing a good job; and that
they had not experienced any problems with security at the facility. Frst off, he introduced Officer
Hudson, who briefly summarized his contacts with the appl'ignt.
Sgt. Jim Hudson, Gang Unit, Orange Police Department, stated over the course of about eight or so
months he had contact with the representative, Mr. Brooks, from The Tunnel approximately five times. It
started initially with some telephone conversations back and forth over a concern Mr. Brooks had
expressed with his officers being there on the premises in looking out for some gang involvement.
Ultimately, he came down and complained to him about the conduct of one of the officers that works for
him. They got that worked out and from that point forward, he kind of felt he had an ear with him. Over the
course of that eight months, he did in fact contact him (Sgt. Hudson) about five times, or he would make
contact with him out in the field. The night particularly Mr. Brooks testified to during the previous hearing,
Officer Rieckhof was present when Detective Thayer and himself drove through in one of their marked
gang poNce cars. They stopped and had general conversation. Officer Rieckhof was in the process of
having a conversation about pepper spray and whether the security people there at The Tunnel actually
were carrying pepper spray. Officer Rieckhof, that night, asked him a question as to a process or
procedure for getting security guards trained in that procedure. He never had any direct contact that
particular night with Mr. Brooks. He has never praised him or his security people over the status of the
security that was being conducted at The Tunnel. In fact, they have taken up quite a bit of his units' time
drawing his investigators away from their duties in the gang areas in Orange, over to an area outside those
particular areas dealing with gang members from other ates that have come into Orange.
Commissioner Pruett asked in Sgt. Hudson's visiting the facility and talking with Mr. Brooks and his staff,
what was his opinion of the training he provided to his people?
Sgt. Hudson did not have enough knowledge to comment on the training. He knew the image they were
portraying was one of a very militaristic, very aggressive security force. Frankly, that concerned him
inasmuch that's not the type of image the Police like to see here in Orange. They had security people out
there with boots and combat fatigues.
Mr. DeBerry introduced Officer Alan Rieckhof. He was the other officer implicated as telling Mr. Brooks
that his security was doing an excellent job.
Officer Alan Rieckhof stated on that particular night he was assigned Patrol and had patrolled through the
parking bt. Jason had flagged him down and said hello. His normal procedure is to say hello and to ask 'rf
anything important was going on to find out the activity at The Tunnel. His duties are Patrol and to make
sure he knows what is going on in his beat. That particular night Mr. Brooks asked him several different
questions. One of them included how he could get his security guards pepper spray. Officer Rieckhof
also inquired about one of Mr. Brooks' security guards. On a prior occasion he had gotten stabbed and he
was wondering how he was doing. On no occasion did he ever work with Jason Brooks as a member of
the Police Department to benefit The Tunnel in any way. His primary concem in driving through that area,
was to ensure he knew what was going on in that club that particular night, whether or not it's going to
need his attention or additional officers attention in case they attract the rowdy type of crowds. As far as
his conversation with Mr. Brooks, he had asked him whether or not his security guards were doing a good
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Planning Commission Minutes September 18, 1995
job. Officer Rieckhof commented on prior occasions he had seen them mil about in the parking lot. And,
on that night they were herding the crowds straight into a line rather than letting them consort around in
the parking lot. He commented to the fact that was a good idea; he was glad they were finally doing that.
He also questioned Mr. Brooks about one of his security guards carrying a PR-24 type baton. No other
security guard would be carrying a baton Tike that. One of them would have a radio; the other one would
not have a radio. Some would have security uniforms; others would have just a plain old t-shirt. On one
occasion when driving through there, one of the security guards had an Orange County Jail shirt on. He
thought the person was trying to presets some type of humor, but he didn't see any humor in that as far as
him representing himself as a security guard. He was working the front door at the time. He commented
on the fact that "You guys need to get some type of organization here; otherwise, you're constantly going
to have problems."
Mr. DeBerry handed the Planning Commission a package of documents, which he wanted included in the
record. He asked if Linda Bishop were present? She was not present.
The very first document is a letter from Linda Bishop. She is the mother of a 16 year old in Garden Grove.
She notes in her letter that she had been having trouble with her 16 year old son. She had been hearing
about this club called Club Submission. Her son had been going to the club and finally she told her son
that he couldn't go to this Club Submission any more. At that time, the son ran away. On the floor of her
son's room (refer to Page 4) was a copy of a flyer that she found. It appears to be a picture of a topless
woman, whose legs are bound behind her, and also her arms appear to be tied behind her. It is
advertising live interactive S8~M and B&D performance and training. As you note, the advertisement is for
The Tunnel at 612 North Eckhoff.
Next, starting at Page 5, is a letter from Debbie Tuell. She is a citizen and parent in the City of Orange.
And, on Page 6, is a flyer she found or that her daughter gave her that was on the windshield of her car.
That flyer is again for Club Submission and they are advertising live interactive S8M and 68~D performance
and training. That was for September 13.
If you will refer to Page 7, they called the number that appeared on the flyers (520-8979). This is the
transcript of the tape recording that was taken on August 23. If you will read through that, again it is
advertising Club Submission, no formal dress code, they feature gyrating visuals, submissive go-goes and
backroom fun and fetish. Again, the directions left here are to 612 North Eckhoff.
Page 8, is a phone message that was taped on September 7 -same phone number. Again, basically the
advertisement is the same. Except now, for September 13, they are advertising a live performance by
Idiot Stare. As you may recall, both Jason Brooks and his attorney, Joshua Kaplan, in order to get the
Commission to continue the hearing to this date, promised there would be no live bands during the
continuance. They go on to advertise special backroom bondage performance. Again, the address is to
The Tunnel.
Page 9, they had the City's computer experts (refer back to the flyer on Page 6) -- it appears to be some
intemet code. They had their DRC track that intemet code. These are the advertisements that were
found on the intemet. The first one is on Page 9. It's an advertisement for Club Submission at 612 North
Eckhoff. It says Fullerton, but there is no such address in Fullerton. Here, they are advertising a full bar.
As you know, no alcoholic beverages can be served at the facility. Also, they are advertising adults only.
Again, this was represented to be a teenage nightclub. They're also advertising contact juggling, fire-
eating, caged dancing girls and more.
If you go to Page 10, this was another advertisement for The Tunnel, featuring bands, among them, Hate
Dept. and Kevorkian Death Cycle.
Page 11, the advertisement, again, is for Image, which if you will refer back to Page 10, was the same
advertisement for 612 North Eckhoff. Here, they are advertising a deviance private party. The hours are
10pm to Sam. As you know, the CUP limits the hours of operation to the faality from 7pm to tam. He also
referred their attention to the line which says Industrial Sounds at the same location as Heretic. That
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Planning Commission Minutes September 18, 1995
becomes important on the next page where there is an advertisement for the Heretic, and again the
location is 612 North Eckhoff, the address of The Tunnel. Here again, they are advertising as an adults
only performance.
Beginning on Page 13 is a report that was taken by Orange Police. This matter was referred to them by
Janice Grace, the property owner who testified at the last hearing. There was a large amount of graffiti
which was (refer to Page 16) ... it appeared that 1,2,3,4, 5 properties were hit with graffiti, including the
location at 612 North Eckhoff.
He referred to Page 17, a police report dated September 2, 1995. He had Officer Baker present to
provide a summary of what occurred on that night. This, again, was during the continuance period. It was
his understanding there was no live band at the facility at this time.
Officer Brian Baker, Patrol Officer with the City of Orange, was called to The Tunnel probably four or five
times on different calls. He took two assault with a deadly weapon reports, which this ~s one of them. In
this one apparently there was a large fight outside. One of the patrons got hit over the head by one of the
security guards with aflashlight -- a large mag light. It busted his head open pretty good and he had
several stitches in his head. He said the security guards were basically swinging their flashlights into the
crowd wildly. He (Officer Baker) talked to the security guards and Mr. Brooks. They, of course, denied
they were swinging the flashlights. They did say they were holding them and pushing people back. The
injuries on the person's head were consistent with those of a flashlight. The Police have had several
problems there. Other types of fights -- he has been there several times. They had another report; same
type of deal where another patron or several patrons were beating one other patron with steel poles,
kicking and punching him about the head and upper body. They cruised through the parking lot and saw
juveniles drunk, passed out in the parking bt and so forth. He always has a problem with. security because
they expect the Police to go in there and take care of their problems, which they (security) can't take care
of.
1~„„r Moving along to Page 27, this was the second correspondence from the City to Mr. Brooks demanding
payment of the TSIP fee. To Mr. DeBerry's knowledge, no payment has been forthcoming. The total
amount owed on the TSIP fee at this time is $16, 588.00. By City ordinance some arrangement to pay the
TSIP fee was suppose to be made prior to operation of the business.
The last item in the packet is a police report dated September 14, 1995. This is in reference to the flyer on
Page 6 where it was advertised there would be live interactive S8M and B8D performances. They had
police officers attend the facility that night. Officer Clark Smith was present to give a summary of the report
that is contained on Pages 29-31 of the handout.
Detective Clark Smith, assigned to the Narcotics and Vice Unit, was assigned to work The Tunnel on three
occasions. The first occasion they went there was the night the security guard got stabbed. That night
they were taking non-enforcement; just walking the lot. And there was in excess of 100 violations of
drinking in public, juveniles drinking. One car they walked past and talked to the people, the boy couldn't
been 13 years old. It was ridiculous and out of control. They sat by the front door -- they didn't actually go
in that night. There were a lot of skinheads there. A band that played that night came out and quit playing
after one song. They were standing right next to them and he specifically asked the drummer why he only
played one song? He said, "Well, the skinheads started doing their swastikas and yelling out racial slurs
because one of the members of their band was black." So they decided to leave. The police took a break
and when they came back, the stabbing had occurred in the parking lot. The night he was assigned to
work it a couple of weeks ago or last week, which the report refers to, they actually went inside. Every time
he has gone there he has been confronted by security. They expected it on the first night and now they
identify themselves to security and assumed there would be no more problems. He has explained to
them on three different occasions they will walk in and check the place out at their leisure. And, they
cannot stop them from doing that, which they would like to do. It's real obvious. When they went in there
on the S&M night, they followed them around for about five to ten minutes until they got bored and
realized they (the police) were not going to leave; they were there for the show. Once inside, underage
girls were dressed in not much more than underwear, people were connected together by nose rings,
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Planning Commission Minutes September 18, 1995
nipple rings and all kinds of good stuff. Blatantly open homosexual activity, cross dressers danclng -- that
stuff is real blatant. They get up on the stage and they dance. They didn't see any alcohol being served
inside. Then again, security knew they were there. They did leave the inside for about 1 /2 hour to walk
the parking lots to see what was going on. They came across a 27 year old female, passed out in her car,
with the door open, clutching a bottle of wine that was about 3/4's gone. They woke her up and kind of as
a test, they told her to go back inside and get her boyfriend to see if security would let her back in (in her
drunken state). She was staggering pretty bad. And they let her walk right in. The police were amazed by
that. That was done as a test and they failed. The live band started around 12 o'clock. They had been
standing in the back of the room pretty much the whole time they were there just observing everything.
They walked up to the right of the stage and nobody realized they were there. A security guard went up
and contacted the band after they started to play. About a minute after that he stopped the crowd and
said he wanted everyone's attention. The police knew exactly what was coming. He wanted to introduce
the "fucking Orange County Vice Unit in the back of the room". He said, "Fuck you guys" and flipped
them off. And everybody in the crowd turned around and started flipping them off, thinking they were in
the bads of the room, yelling obscenities. And then, the lead singer of the band turned around and
grabbed a roll of toilet paper and said, "Why don't you clean up the shit with this?" and threw a roll of toilet
paper to the back of the room. Then, the whole band started throwing toilet paper to the back of the room.
Everybody still thought they (the police) were there. They kind of joined in with the crowd and said,
Yeah, scxew those guys; get them out of here." They did do the slam dandng; there was a live band;
there ware skinheads there. Everyone is familiar with the slam danclng. They pretty much run around
punching each other with a total disregard for the safety of anyone else in the crowd that they might run
into, or punch, or kick. They sat and observed that for a little while. That's pretty much it in a nutshell.
Chapman Bosch thanked Officer Smith for his discretion under fire.
Mr. DeBerry said that summed up the additional evidence the City had to offer. As Mr. Soo-Hoc has
advised the Planning Commission, their role is as the hearing officer for the City Council. And, to make
findings of fact and conclusions as to whether or not the CUP has been complied with and the extent to
which it has or has not been complied with. And, also to recommend revocation, modification, additional
terms and conditions, or whatever that might be. Mr. DeBerry has put together a proposed set of findings
and he passed them to the Commission for their review.
Chairman Bosch thanked Mr. DeBeny. He wished to also albw the public to make comment on this matter.
Mr. DeBerry said in reviewing all the evidence that has been presented, he believed there is suffident
evidence in the record to find the applicant has violated every single condition of the CUP. He presented
a summary of some of the facts and evidence that have been presented over the last two heanngs and
failed to find one condition which had not been violated. Staff's position is to recommend a revocation of
the CUP and also to make a finding that the operation of the facllity constitutes a public nuisance in that
there has been an on-going threat to health and safety, the patrons that are there, police officers, security
personnel and the general public. Essentially, those conditions have escalated during the proceedings.
Commissioner Romero said the letter from Mr. Kaplan stated that the facility had ceased all operations. Is
that true, in fact, as far as the Orange Police Department is aware that they are no longer open?
Mr. DeBerry responded they didn't know. He got the letter at 11:00 a.m. this date. So this was the first
time they heard of it. To his knowledge, since they have been in operation, they have never been open
on Monday or Tuesday nights. They probably would not know Until Wednesday, but even then, the rumor
is the Club Submission is moving to Anaheim. So, they probably would not know until Friday or Saturday
whether that is true. The property manager, Janice Grace, has indicated the recent rental check from The
Tunnel has bounced and she's giving them a notice to quit.
Commissioner Pruett had a financlal question --the TSIP fee they owe the City -- is that considered to be a
debt to the City at this point?
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Planning Commission Minutes September 18, 1995
r Mr. DeBerry responded yes. In fact, they were discussing that issue earlier. He will be meeting with both
the Finance Director and Public Works Director or representative to determine if it's in the City's interest to
go after that dvil matter.
Public Comments
Carole Wafters, 534 North Shaffer, said she spoke personally to the lady who wrote the letter. She
doesn't live in Orange and she didn't see how they could be in Orange. Her boy was ruined for life and
she was willing to fight so that another child would not be taken like her son. After the letter went out from
her, her son found out and he called the place to notify them to have the security guards watch everyone
that came in so they would know when the police were there because the police were watching them. Did
the police know this kind of stuff was going on before they got the letter? To her, if there were that many
problems, the police should have gone inside and checked it out completely and not wait until a parent
comes forward. Children were allowed to be hurt every night and nothing was done about it because the
hearing was postponed. She would like to hind him, but she can't do that.
Barbara DeNiro, 1118 East Adams, was about to choke with what she heard. There is Casey's, Suedes,
Orchid's and she gets real concerned because she hears stuff that goes on at Cask N' Cleaver. She
hoped the City was monitoring the other three very carefully. If you ever put anything in Cask N' Cleaver,
please don't. It's all on Tustin Avenue next to her and she doesn't like it.
Mr. DeBeny responded to the comments from Carole Walters. The Police had no idea. The flyer from Ms.
Bishop was the first indication that was received that erotic type of performances were taking place. This
was all being done underground. When they received the flyer, the advertising for that flyer had already
passed. Then they received a subsequent flyer from the woman in Orange who had gotten it off of her
daughter's car. And they were there on that night. Four or five undercover officers were present and
Detective Smith testified to that. He saw there was a back room where it appeared they might be
attempting to set up this performance, but with the police officers there, they did not attempt to do that.
He didn't know how tong this has been going on; he wished they had discovered this sooner. Certainly, if
they had known about it, they would have brought it up at the August 21 hearing.
The public hearing was dosed.
Commissioner Pruett agreed with the proposed findings. He thought there were other issues which he
would try and articulate because they were a concern to him. Obviously, what they have heard tonight is
absolutely terrible. And what they heard at the last meeting brought some real c~ncem as well. He was in
favor of revoking the conditional use permit and they needed to move forward with it. One of the things
he was really concerned about is that some of the issues surrounding some of the findings...ln other
words, what he would like to articulate is some of the things he saw or heard in the previous hearing and
also heard at this hearing. That is, he thought there was a real failure...things were out of control. The
applicant or individual running the club, in his view, had no written guidelines for his people, his staff,
security people, to where there was very little guidance, any direction in terms of how they managed
themselves and managed the people they have responsibility to manage. Those people were children.
They were people who were under 18. They indicated their club was to operate for kids that were 15 on
up. To him, that takes a special responsibility. tt was incumbent upon him to have some written
procedures that outlined not only how he was going to operate his club, but how he wanted his staff to
make sure that club did operate in that fashion. He didn't think he had that...well, he stated he didn't have
it. And, as a result, there were inconsistendes in temrs of how that club was managed to contribute to that
thing being out of control. Examples are when he was asked about the count going into the club -the in
and out count. He indicated the person that was doing that had gone away from the door. He had to go
chase him down to get that. He lost count; he didn't know what he had in the club. That's part of the
management. Then there was a variety of other issues he could go into that attributed to the irresponsible
management that was taking place in that dub. The security people themselves in terms of how they were
trained, and how they were given direction was totally lacking. He didn't think he hired security people; he
hired bodies. And he hired people who probably were physical in nature and probably prone to violence.
Therefore, he was really putting together a dub that would not be something that he could manage
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Planning Commission Minutes September 18, 1995
without proper direction. Also, he thought it was very important to look at the site. Is this an appropriate
location for this type of facility? He thought some of the things that contributed to the problems that were
there was the site itself. The lighting is very inefficient on that south side of the building. There are four
lights along that side of the building. He (Mr. Brooks) testified there were 15 lights. The lighting is so poor
along that building, that it is only there to illuminate the doors to provide security to the doors. It is not
illuminating the parking because it is not a facility that really is designed to operate on an around the clock
basis to where you are providing security for parking. Just the nature of the building itself, the nature of
the lighting, the nature of the way the parking lot is set up -- it's not conduave to this type of club or this
type of operation. He thought it was very important to look at that context. The reason he thinks it's
important to do that is because he didn't think this was appropriate for any other type of Gub similar in
operation. He's not talking about similar in operation from the standpoint of for the use, but just a club of
this nature that is going to have dancing and a variety of things regardless of what the age or activity is; it's
an activity that is an inappropriate use for the location. The parking problem is another issue that
contributed to a major inability to control and manage the situation, and that the parking was up and down
the street. He did not believe the events at the Anaheim Stadium spilled that far over and down the street
to create parking problems for him. His parking problems were created by the nature of the operation.
And in visiting the site out there, one of the things he observed were the sidewalks on only one side of
the street. So the other side of the street does not have sidewalks; it puts people into the street and
creates a hazard for young people who are basically trying to get in transverse from their car to the faality.
That created a safety issue and something that is of much concern. It is not something that should be
attributed to a site of this nature. The noise is another factor in terms of the adjoining tenant and that's an
issue as welt. There were some complaints the noise was operating outside the requirements of the
conditional use permit. He thought that was an important issue as well. He could go on with a variety of
other issues that were important to him, but he thought they were captured in the proposed findings and
they really grasp the issue. He thought it was important to not lose sight of the use of the property and is
that an appropriate use for that center or that industrial complex? He didnY think this is an appropriate use.
He thought the club proved that in the way it was managed and the way it operated, and that contributed
to it as well. He would not support a similar use in this type of location. That's the point he wanted to make.
Commissioner Smith was in favor of the revocation of the conditional use permit. Just to add, she
believed the operation jeopardized the health and safety of minors and adults. That the management
exhibited extremely poor management of the business by failure to pay the required fees and to hold
liability insurance. That the site, as they have heard in testimony, has been a dangerous magnet site for
crime, which seems to have increased over time. The tenants and type of use not only affected the
customers of the business, but this business was "bad neighbors". They negatively affected the
surrounding tenants with trash, property damage and probably most important a pervasive sense of
intimidation which was in the testimony last time. She believed it was a poor land use for this type of permit
because the area is too isolated from public view and therefore, contributed to the underground nature of
the business. She agreed with all the conditions proposed and proposed findings. She added her
comments to further reinforce her feelings that the CUP should be revoked and the use should not be
continued on the site.
Commissioner Romero agreed with the other Commissioners. The numerous violations of the conditional
use permit and the degree of the violations warrant a revocation. Specifically, a commentlquestion to the
City Attorney -- Is it possible, because you do know that potentially it would be moving to Anaheim, to copy
all of the data for Anaheim to let them see what they are now going to be dealing with?
Mr. DeBerry told the City Attorney, Robert Frank, he would be sending the entire record over to the City
Attorney's office in Anaheim to let them know they are coming. He will try and track down that location
because they may go under a different name, but Anaheim will have the information Orange has.
Chairman Bosch stated the conditional use permit definitely needs to be revoked. He has never seen
such a flagrant disregard with forethought to one condition, let alone every single condition that attached
itself to a conditional use pemlit. It's clear from the club operator's testimony at the continued hearing that
he knew very well when he entered into his lease and opened this for business what the conditions were.
He understood there was a TSIP fee; he understood their hours of operation; restrictions on type of
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Planning Commission Minutes September 18, 1995
operation. He knew what building and fire code requirements would be relative to other life safety
elements of the City ordinance and state ordinances for that matter (the California Administrative Code).
And yet, after repeated requests and assurances from the operator that he would comply with all
necessary parts of all the ordinances and laws, he continued to disregard them to renege on assurances
that he would conform, including the night of the last hearing when they agreed to not have live music and
yet continued forward to do that. Clearly, a won ton disregard for public safety and welfare and a flagrant
violation of every aspect of the conditional use permit. They're kind of held captive in a civilized society, if
they are still one, with regard to the laws and ordinances that puts the element of good faith in dealing with
proper citizens and everything they do so that they are not runrnng a sodety so restricted with rules that
none of them can have a free will, free enterprise to go akmg with that. We`re stuck more and more with
the definition of the first amendment rule with regard to types of conduct, whether it be in music or dress
code, or language that goes on. But, without regard to all of that, taking away any other aspect of it, the
basic violation of all the legal requirements that goes with this is the key thing that they first have to dwell
on in order to demonstrate through the testimony of the very words of the operator of the facility that he
knowingly disregarded those laws. That's the basis for revocation. Even if he claimed at a later time to
want to fulfill portions of it. He thought they needed to look at the long range too. The site was originally
approved for the Buenos Aires or Argentinean Social Club, which was a worthwhile enterprise. But
unfortunately apparently under state law a conditional use permit goes with the property; not with the
applicant. He thought it behooves them as a society aril through their small voice as the City of Orange
and through the League of Cities, to look into state law aspects of conditional use permits with regard to
uses that are conditional; that represent granting a privilege rather than a right that goes with the property,
to see what additional restrictions or review periods or types of operational controls they could put into the
ordinance to help assure this kind of thing is less likely to happen in the future. They can't make people
obey the law, even when they agree to do it, until after they have done the violation. That's why they are
in this spot. He was concerned that it gives a bad name to anyone who wants to undertake a nightclub or
an entertainment activity in the C'rty. It's particularly hurtful in that the last revision of the. conditional use
permit was on behalf of a teenage Christian non-smokirg, non-alcoholic nightclub, which was an asset
everyone felt would be great for the City. Look how far it went the other way. How do we keep from
shutting out something that looks good and serves our people, our citizens and in particular, our youth
without getting caught in this dilemma in the future? There is no question that given this type of operation
can occur, that they have to look more carefully at this kind of site in the future because operators will
change hands; they may be stuck with something similar again. He thought some of Commissioner
Pruett's comments with regard to training security guards, which relate to conditions they routinely apply
to nightclubs or after dark entertainment, need to be broadened as they are written. And future
considerations with training, certification and insurance, source of hiring, type of licensing for security
guards, as well as being sure through other City departments that any requisite fees and specific
compliance with life and safety codes and ordinances be certified to having occurred prior to opening
night -- prior to anything happening at all. We just don't have the grace to do something that may kill
people out there.
Commissioner Pruett thought too that in future considerations of uses similar to this for conditional use
permits that it would be appropriate for written procedures to be required as well that would be submitted
to the Police Department and others that might have an interest in those procedures in terms of how they
intend to manage that kind of thing.
Commissioner Pruett read the proposed findings into the record for the public:
A. THE APPLICANT HAS FAILED TO COMPLY WITH THE FOLLOWING CONDITIONS OF
CONDITIONAL USE PERMIT 1998-92:
Condition #1: No alcoholic beverages will be consumed on the premises.
While there was no eyewitness testimony that alcohols beverages are being sold or consumed inside
applicant's facility, Orange police officers testified that alcoholic beverages are being consumed in large
quantities both in applicant's parking lot and on surrounding streets, often by patrons under the age of 21.
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Planning Commission Minutes September 18, 1995
Further, Orange police officers testified that they witnessed applicant's security guards failing to take any
action to prevent either alcohol or drug consumption in the parking lot or on neighboring streets.
Condition #2: The dub operator shall provide a minimum of eight security persons at all times when the
facility is opened for public group activities.
Based on the testimony of Orange police officers, it does not appear that applicant always complied
with this condition, although applicant may have had eight or more security officers present at some
events.
Condition #3: Weekday public group activities shall not begin before 7 p.m. or extend beyond 2 a.m.
Although there was no eyewitness evidence that the applicant's facility was operated beyond 2 a.m.,
evidence was presented that applicant was advertising prnrate parties lasting until 5 a.m.
Condition #4: The police department will monitor the fadlity to determine if calls for police service
increases due to dub activity. If they determine that the applicant is unable to control the need for police
service then. the CUP shall be brought back for review and possible initiation of revocation proceedings.
Statistics submitted by City staff show that for a comparable period between January 1, 1995, and
March 31, 1995, applicant's fadlity had at least 50 percent more calls for police services (15) than three
adult nightclubs (10, 8 and 3, respectively) which the police department has identified as trouble spots
and which also serve alcohol. During this same period, 15 businesses located adjacent to or near the
applicant's facility had a total of 19 calls, none more than four calls. In contrast to calls to adjoining
businesses, calls to applicant's fadlity involved several serious acts of violence, large brawls. gangs and
drugs. The Planning Commission also received evidence that the applicant has told security personnel to
not cooperate with Orange police officers.
Condition #5: The applicant shall demonstrate that the fadlity is in compliance with all Uniform Building
and Fre Code requirements pertaining to the proposed building use, prior to operation of the business.
The building occupancy limit is 299 and the applicant has been notified orally and in writing of this limit.
Orange police oficcers testified that the applicant has violated this limit on more than one occasion. In one
incident, Orange police officers testified they counted at least 450 people leaving the building.
Condition #6: Prior to building occupancy, the applicant shall record a hold harmless agreement with
the City and obtain lability insurance naming the City as addit'bnal insured.
By applicant's own admission neither of these items were taken care of until May of 1995 at the
earliest.
c
Condition #7: Payment of a TSIP fee as required by City ordinance.
The City's ordinance requires payment of the TSIP fee prior to occupancy. Although the applicant
testified that he did not occupy the facility until September of 1994, police records evidence calls from the
applicant to the factlity as early as May of 1994. Although there was some initial discussions and a request
by the applicant to make monthly installments beginning in October of 1994, the applicant has not paid
any amount towards the TSIP fee. The City has made written demand for payment in full, but the applicant
has refused.
The above conditions, other than use of the subject CUP, are all of the conditions imposed by CUP
1998-92. Even in using the CUP, the applicant has been advertising sexually erotic performances for
adults only, which is not permitted under the subject CUP. The applicant has not complied with a single
condition of CUP 1998-92.
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Planning Commission Minutes September 18, 1995
B. THE OPERATION OF APPLICANTS FACILITY CONSTITUTES A PUBLIC NUISANCE FOR THE
FOLLOWING REASONS:
1. Both the extent and severity of the crimes has significantly increased in the area due to applicant's
operation.
2. Litter and graffiti have signirficantly increased in the area due to applicant's operation.
3. Because the applicant is unwilling or unable to make a good faith effort to comply with present
conditions of the CUP, imposing additional conditions on the applicant's operation would be of no benefit
and would only further involve City involvement in applicant's operation. In addition, based on past
history, the applicant would violate those conditions. At the August 21, 1995, Planning Commission
hearing, the applicant told the Planning Commission he would have no live bands in exchange for a
lengthy continuance which the applicant received. However, Orange police officers testified that the
applicant did have a live band during the continuance.
4. During applicant's operation there have been numerous serious assaults, one by applicant's own
security guard and continued operation poses a threat to the health and safety of the patrons, employees
of the facility, members of the public and Orange police officers.
5. The applicant has shown no ability to control the ongoing serious violence at the facility and the
violence appears to be escalating.
6. TF'ie applicant's nightclub has become a magnet for pervasive illegal alcohol and drug consumption
and it appears that the applicant is permitting underage people to consume alcoholic beverages and use
illegal drugs on and around the outside of the premises. The operation of the nightclub is contributing to
the delinquency of minors.
7. Continued operation of the facility may cause adjoining tenants to move, creating vacancies in the
area.
C. RECOMMENDATION.
Based on the above, the Planning Commission recommends the revocation of Conditional Use
Permit 1998-92.
It was noted the project was categorically exempt from CEQA review.
Moved by Commissioner Pruett, seconded by Commissioner Romero, to recommend to the City Council
to revoke Conditional Use Permit 1998-92.
AYES: Commissioners Bosch, Pruett, Romero, Smith
NOES: None
ABSENT: Commissioner Cathcart MOTION CARRIED
Moved by Commissioner Pruett, seconded by Commissioner Smith, to recommend to the City Council for
the City to vigorously pursue the TSIP fees pertaining to Conditional Use Permit 1998-92.
AYES: Commissioners Bosch, Pruett, Romero, Smith
NOES: None
ABSENT: Commissioner Cathcart MOTION CARRIED
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Planning Commission Minutes September 18, 1995
IN RE: ORAL PRESENTATIONS
Carole Walters stated it wasn't the Planning Commission's fault the facility was allowed to remain open.
When she called Commissioner Smith, she didn't realize how bad it really was. But why didn't the police
discover this on the many visits they made to the site? Is there a way the Planning Commission and City
Council can have a study session to discuss the CUP process? Something has to be done.
Chairman Bosch responded the Commission has requested that of staff. They understand there are
certain state law restrictions, but that means they should be changed. If there are, in fact, methods they
could apply through the ordinances or other avenues of state law, in addition to the basic land use one of
a conditional use permit, everyone needs to know. If they're not there, or are not workable, then they
need to do what can be done through the legislative body to assure proper bills are introduced in the next
session and enacted into law.
Ms. Walters asked if all of the paperwork could be copied and sent to all the cities?
Commissioner Romero thought that would be quite cumbersome and involved. If the Police Department
could help with acxess into the Internet, that could be one way of achieving notification without going to
the expense and time involved with mailings.
Commissioner Pruett also thought the Police Department could communicate with other police
departments and sharing of the particular site with them would give them a lot of information in terms of
what is happening and what is out there. He thought the City should also continue to monitor too,
because it would be a good source of information. That's where the underground is taking place in terms
of a lot of the communication, in addition to the flyers.
Barbara DeNiro thought it was interesting how people come to Carole Walters and she has to bring it to the
City's attention. At least there is one person in the community that people feel free to come to and will do
something. At City Council they have talked about this before, how people come in and have an
operation under one guise; then they come back and want to change that use. That's a big problem. She
wanted to ask about Casey's. Are there any major problems over there? She realizes it's a different kind of
operation; however, she sees some things she's suspicious about and it's during the middle of the day.
Sgt. Bany Weinstein, Vice-Sgt. with the Orange Police Department, addressed Carole Walter's concerns.
It's important to know that in the beginning The Tunnel was not there. It was a religious group for church-
going people and the concept was very commendable. Then, unknown to anyone, in the beginning it
changed. How did it change? Because it was a very underground operation; very sophisticated. There
was a bt of money involved. Over the past year, when the Poise Department did find out what was going
on -- it was very small at first. They would get calls at The Tunnel. They pursued it aggressively and
vigorously. They've made several arrests out there. They have gone to the aid of the youth out there.
They had in the very beginning tried to resolve this within the guise of the law (within the rules) by talking
to management and by doing what they could to get it resolved as they would any business. Because
they didnY want to have the City of Orange sued and loose a lot of money for all the citizens. So they
worked within the law. After several arrests were made and after it was very apparent to them this was, in
fact, a business that needed to be removed from the City of Orange, the Police Department went to Mr.
DeBerry with the information and requested revocation proceedings. Mr. DeBerry said they had to be
careful because Costa Mesa was unable to do the same thing that was done tonight. This is an all-time first
in the City of Orange, to his knowledge. Mr. DeBerry guided them and the Police Department brought
forth all the facts and information and put this together legally to have the business revoked. They tried
other means; there was no legal way to get rid of this business. This was the legal way to handle it and
that's how they did it. The City of Orange will not be sued for this - -there will be no money loss. They did
take care of the problem out there.
Casey's, for the last 11 months, has had no major problem. Any time you see a police car there, it's
because they are checking on the place. The police checks all of their businesses regularly, but
particularly the ones that have alcohol and have had problems in the past. They are very conscious of
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Planning Commission Minutes September 18, 1995
those. These businesses are complying and have had no serious problems. That's why he was able to
use those businesses for his testimony to compare them to The Tunnel, which was no comparison.
D
Mr. DeBerry explained a similar revocation proceeding did take place in Costa Mesa. They were having
some of the same problems with a tavern. It went up to the appellant court three times and the city of
Costa Mesa lost every time. The main reason was the court found there was not enough due process
given. This is why this procedure was very lengthy and why the City was patient in allowing them to
present evidence and cross examine witnesses. In reviewing those court decisions, these were the very
failings of Costa Mesa -- not that they didn't have a good argument that the place should be closed; it was
just that due process was not given.
Commissioner Smith clarified the action taken at this hearing was a recommendation to the City Council.
So the revocation has not actually been put into effect by the Commission's action. The City Council will
take the Commission's recommendation and hopefully will revoke the CUP.
Mr. SoaHoo believed the hearing on this matter was being set for the City Council meeting of September
26, 1995, at 7:00 p.m.
IN RE: ADJOURNMENT
Moved by Commissioner Pruett, seconded by Commissioner Smith, to adjourn to a study session to
discuss the adopted zoning ordinance on October 2, 1995 at 5:30 p.m. in the Weimer Room.
AYES: Commissioners Bosch, Pruett, Romero, Smith
NOES: None
ABSENT: Commissioner Cathcart
The meeting adjourned at 8:15 p.m.
sld
MOTION CARRIED
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