DEEMED APPROVED ORDINANCE
A Viable Solution to the Downtown Late Night Bar Scene
SEPTEMBER 27, 2013 As a member of the Downtown (Public Safety and Residential Quality of Life) Task Force, Kim Kramer, President of the HBDRA has submitted the following memo to his fellow Task Force members for their consideration.
Date: September 27, 2013
From: Kim Kramer
To: Downtown Task Force
Subject: Deemed Approved Ordinance (DAO)
In an attempt to deal with downtown public safety and residential quality of life, we face a serious road block in the form of entitlements that are granted in perpetuum. I am referring to alcohol licenses issued by the State and CUP’s issued by the City. Both are granted forever, and to worsen the situation, both are granted to the physical location and not the business in question.
Because of this, we have new businesses Downtown taking over failed businesses and being grandfathered into their ABC license and their CUP. As conditions change and time marches on, the City is all but helpless to modify either of these entitlements as might be necessary to deal with a changing culture Downtown or any other condition that might warrant an ABC or CUP modification.
The inability of our City to regulate grandfathered alcohol selling establishments Downtown is one of the most significant obstacles to affecting positive changes in public safety and residential quality of life. This needs to be fixed if the Task Force is going to be successful in its mission.
There is a solution. Since the State of California controls the licensing of all alcohol selling establishments throughout the state, the City of Oakland, California was prompted to enact the first ever Deemed Approved Ordinance in 1993. This ordinance authorizes local municipal authority over alcohol selling establishments by issuing Deemed Approved Permits and establishing Public Nuisance Standards that pre-existing retailers must abide by in order to maintain their permit.
The standards are monitored by the City through an enforcement and education program which is paid for by a fee on the deemed approved outlets. The standards do not directly regulate the sale of alcohol, but rather address land use and public safety issues associated with alcohol sales, such as disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, illegal parking, excessive loud noises (especially in the late night or early morning hours), traffic violations, curfew violations, lewd conduct, and police detentions and arrests.
The litany of Public Nuisance Standards described above are not my words. They are the official language of the Deemed Approved Ordinance, yet they describe precisely and exactly the conditions we face as downtown residents every Tuesday, Thursday, Friday, Saturday and Sunday as a direct result of the excessive Late Night Bar Scene in the Downtown Entertainment District.
The State holds ABC licensees accountable for the actions of their patrons while they are inside the business premises and uses the license revocation as a tool to affect positive changes in business and patron behavior.
In the same way, the Deemed Approved Ordinance holds the alcohol selling establishments accountable for the actions of their patrons while they are outside the business premises and uses the permit revocation as a tool to affect positive changes in business and patron behavior, including the issuance of a modified CUP for the business in question.
There are currently 19 cities in California using a Deemed Approved Ordinance including Oakland, San Francisco, San Leandro, Ventura and San Bernardino.
I am not suggesting that the City use the Deemed Approved Ordinance to come down hard on the late night bars as the City can structure and implement the Deemed Approved Ordinance in any manner that is appropriate. I am suggesting, however, that the City be given all the tools it needs to do its job to fulfill its single most important and core responsibility to all of its citizens, and that is to ensure the public safety, peace and tranquility of the community.
I recommend the Task Force consider a Deemed Approved Ordinance for Downtown, DTSP District 1, and ask staff to provide information how this might be accomplished.
Downtown Task Force Member
“Reducing Community Alcohol Problems Associated with Alcohol Sales: The Case of Deemed Approved Ordinances in California” CLICK HERE.
“Conditional Use Permit – Deemed Approved Alcoholic Beverage Sales Regulations Ordinance” developed by The Institute for Public Strategies funded by the City of San Bernardino. CLICK HERE.
Oakland alcohol retailers challenged the Deemed Approved Ordinance in court on two grounds: (1) The ordinance constituted regulation of the sale of alcohol and was therefore preempted by the State Constitution; and (2) The fee was in fact a tax, also prohibited under State law.
The California Court of Appeal rejected these claims and the California Supreme Court allowed it to stand without further review. As such, the Oakland Deemed Approved Ordinance has now become the model for other cities in California and today there are 19 California cities enacting some form of a Deemed Approved Ordinance.
Some of the information in this memo was taken directly from the report attached, “Reducing Community Alcohol Problems Associated with Alcohol Sales: The Case of Deemed Approved Ordinances in California” by Alcohol Policy Consultations. One of the authors, James Mosher, is considered to be the leading authority on Deemed Approved Ordinances and, if we are to move forward with this action, I suggest we invite Mr. Moser to make a presentation to the Task Force at the earliest convenience.