HomeMy WebLinkAboutRes 00-18 CUP 99-8 Restuarant 72-600 Dinah Shore Dr CD
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
I. TO: Honorable Mayor and City Council
II. REQUEST: Consideration of an appeal to a decision of the Planning
Commission denying a request for approval of a conditional use
permit for a 10,000 square foot restaurant and, after 9:00 p.m.,
a bar, lounge and nightclub with dancing including live music and
disc jockeys in the building located at 72-600 Dinah Shore Drive.
III. APPELLANT: Caesar's Emperor
72-600 Dinah Shore Drive
Palm Desert, CA 92260
IV. CASE NO: CUP 99-8
V. DATE: February 10, 2000 continued from January 13, 2000
VI. CONTENTS: MEETING DATE (9-10-OO
A. Staff Recommendation CONTINUED TO e? a
B. Discussion ❑ PASSED TO 2ND READING
C. Draft Resolution No. 00-18
D. Planning Commission Minutes involving ease No. CUP D O
E. Planning Commission Resolution No. 1960
F. Planning Commission Staff Report dated September 21 , October 5 and
November 2, 1999
G. Related maps and/or exhibits
A. STAFF RECOMMENDATION:
That City Council adopt Resolution No. 00-18 granting the appeal and approving CUP
99-8.
B. DISCUSSION:
1 . BACKGROUND:
The building was most recently occupied by Bubba Bears Pizza Theater which
was similar to Chuck E. Cheese. Bubba Bears catered children's parties and
had animated "live" musical theater.
RESOLUTION NO. 00-18
CITY COUNCIL STAFF REPORT
CASE NO. CUP 99-8
JANUARY 13, 2000
Bubba Bears ceased operation in early 1 993 and was eventually replaced with
Caesar's Emperor. The business license for Caesar's Emperor noted that it
would be a "pasta and pizza" establishment. On this basis staff approved the
use permit without a new conditional use permit (i.e., continuation of Bubba
Bears type of operation).
Upon opening of Caesar's Emperor in early 1999 there was a series of public
safety incidents at the business resulting in the death of one patron.
The city obtained a preliminary injunction on the operation and as a result a
settlement was negotiated to allow the business to operate, subject to
conditions. One of the conditions requires that Caesar's Emperor file for
approval of a conditional use permit "to operate a nightclub with dancing."
This application was originally considered at the Planning Commission meeting
of September 21 and October 5, 1999. At the October 5, 1 999 meeting the
matter was effectively left unresolved in that votes to approve the request and
to deny the request resulted in a 2-2 vote with Commissioner Lopez absent.
Upon further reflection, staff felt the matter should have been given one more
opportunity at that point to resolve it one way or the other, hence staff
readvertised the matter for the November 2, 1999 Planning Commission
meeting and put it back on the Planning Commission agenda as a new item.
The matter was continued, at the applicant's request, from November 2, 1999
to November 1 6, 1 999 and to December 7, 1999.
December 7, 1999 a full Planning Commission reconsidered the matter and the
applicant was represented by this attorney, Mr. Charles Koller.
The Planning Commission on a 3-2 vote, with Commissioners Lopez and
Campbell voting nay, denied the request. Essentially those voting to deny felt
that the conditions necessary to make this an acceptable use reflected poorly
on the business and on the city (see Planning Commission minutes of
December 7, 1 999 pages 7, 8 and 9 for complete discussion and Resolution
No. 1960 for specific findings).
a. ZONING OF SITE:
PC-3 Regional Commercial.
2
RESOLUTION NO. 00-18
CITY COUNCIL STAFF REPORT
CASE NO. CUP 99-8
JANUARY 13, 2000
b. ADJACENT ZONING AND LAND USE:
North: PetsMart/PC-3
South: Theaters/Rancho Mirage
East: Taco BeII/PC-3
West: Vacant/PC-3
2. APPLICANT'S REQUEST:
The request at this time is to continue the portion of the operation which was
similar to Bubba Bears (i.e., serve pizza and pasta for lunch and dinner)
although this use would not place an emphasis on attracting small children.
9
The new portion of the permit is to allow a nightclub use with dancing from
9:00 p.m. until 2:00 a.m. daily.
3. ANALYSIS:
The nightclub/dancing use has the potential to disturb residential communities
if it is not appropriately located. This site is not located near any residential
units.
The business is located in a large commercial center in a sea of parking. Most
of the other businesses are not open late in the evening. This business has a
considerable amount of its own on-site parking. If there is an overflow
situation there is ample space for it.
The issue with this late night business is how it was managed and operated.
Over the first few months of its operation the Sheriff's Department had a
series of incidents ranging from attempted homicide, drug use, domestic
battery, vehicle theft, public intoxication and homicide.
Following the death of a patron on June 16, 1999, the city obtained a
preliminary injunction on the operation. The settlement agreement imposed a
series of conditions on the operation (see attached court document). The main
conditions require Caesar's Emperor to employ uniformed security personnel
to the city's satisfaction, two extra duty sheriff's deputies between 9:00 p.m.
and 2:00 a.m. and installation of a metal detector manned by a trained
security guard at the entrance to the business.
3
RESOLUTION NO. 00-18
CITY COUNCIL STAFF REPORT
CASE NO. CUP 99-8
JANUARY 13, 2000
Since the conditions were in place (August 25, 1999) the business has
operated without major incident according to Lt. Kirby of the Sheriff's
Department. There have been a few arrests for public intoxication.
Staff recommended approval of the CUP application to the Planning
Commission subject to imposition of all of the conditions imposed through the
preliminary injunction and settlement agreement.
Staff continues to recommend approval of the request (i.e., that the appeal be
granted) subject to conditions.
During the Planning Commission deliberations the age limit contained in
Condition No. 3 of the settlement document and the draft resolution of
approval came under considerable discussion.
The actual court document originally prescribed a minimum age of 21 years.
During discussions between the attorneys it was agreed to change this to 18
years. This allows a 19 year old to accompany a 21 year old but not imbibe
alcohol. Staff did not feel constrained to only the conditions contained in the
settlement documents and as a result recommended that the age limit after
9:00 p.m. be limited to 21 years and older.
4. CEQA REVIEW:
The requested conditional use permit is a Class 3 categorical exemption for
purposes of CEQA. No further review is necessary.
5. CONCLUSION:
The staff recommendation is opposite the action taken by Planning
Commission. For this reason we have included two draft resolutions, one
granting the appeal and approving the request and a second denying the appeal
and affirming the Planning Commission decision to deny the request.
CITY COUNCIL ION:
Prepared by: - a APPROVED DENIED
Smith
Reviewed and Approved by: AYES: ,.4caN4k
Philip Drell
/tm ABSENT; 01't-°} _
ABSTAIN:_ •4/1-0^1Q- „�,�
VERIFIED BY: ,...,.�,_,,,,....
Or4ginal on File with City lerk' s
RECE1\'ED 74;
'00 FEB 10 FM 9 22
CITY CLERK'S OFFICE 72_ /lea ii4512_ .
.
L.,
.
O
ecrez.eaLsz. ? cr —?
cege_42.0-1 co_t(44)1•AA__ 6 . .c‘t.d1r6i1.4gi,k_cse. ‘
cotte
/ - t!1 ilderae40
a
.
�-r-� / z- -- `
L6.
44
ck 02.2=Q
cac,�
4 1
Lf • k\ aLt r
0/1)6e.
& u ,
de-x_cos
0L_Atz_A_
•1/1 Cs-4444--c0
)
.7;44 am-Jui 7-
1L4.4_.iti
CP44 ,
•
•
Co-4.ft_ e_
if3,- K —4 ltS• JI
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
VII. CONSENT CALENDAR
No items.
VIII. PUBLIC HEARINGS
Anyone who challenges any hearing matter in court may be limited to raising
only those issues he or she or someone else raised at the public hearing
described herein, or in written correspondence delivered to the Planning
Commission at, or prior to, the public hearing.
A. Case No. CUP 99-8 - CAESAR'S EMPEROR, Applicant
(Continued from November 2, 1999 and November 16, 1999)
Request for approval of a conditional use permit for a 10,000 square
foot restaurant and, after 9:00 p.m., a bar, lounge and nightclub with
dancing including live music and disc jockeys in the building located at
72-600 Dinah Shore Drive.
Mr. Smith noted that this item had been continued from November 2 and 16,
1999. Prior to that the matter had originally been before the commission at
their meetings of September 21 and October 5. At the time of the October 5
meeting the matter was effectively left unresolved in that it was left hanging
on a 2-2 vote. Upon further reflection, staff felt the matter should have been
given one more opportunity at that point to resolve it one way the other,
hence staff readvertised the matter for the November 2 hearing and put it back
on the agenda as a new item. The commission had the report from November
2, which was substantially similar to the report the commission had previously.
The staff recommendation on November 2 and today was that the commission
approve the matter, subject to the conditions which were consistent with the
preliminary injunction which the City had obtained on the matter. Staff also
distributed to the commission, pursuant to the Chairman's request, a copy of
City Attorney Phillips' comments on the matter where he outlined possible
findings for denial of the application. The staff recommendation was for
approval but staff included a resolution of denial in the packet. If that was
commission's choice, action could be taken on the matter. He asked for any
questions.
2
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
Commissioner Campbell asked if this proposal complied with the goals,
objectives, and policies of the city's General Plan. Mr. Smith explained that
the zoning of the property was consistent with the General Plan and
consequently the proposed use, if it obtained a conditional use permit, would
be an acceptable use in the zoning. Hence, the use would be deemed to
conform.
Chairperson Jonathan opened the public hearing and asked the applicant to
address the commission.
MR. CHARLES KOLLER, 225 S. Civic Drive in Palm Springs, stated that
he was the attorney for the applicant. He was present to hopefully
change a couple of the commissioners' minds since they last met and
to answer any questions. He stated that he was concerned at the last
meeting because there were comments made that because of the
conditions that were agreed upon between the city staff and his client,
and the preliminary injunction, was not awarded by the court--it was
stipulated to by the parties. They came to an agreement that this
would be sufficient to allow the business to proceed while they
discussed this. There was a concern that those conditions, just the
conditions themselves, reflected badly on the use that was there. For
instance some members took exception to the fact that there were
sheriffs there, by agreement. That there were metal detectors that
would be in place to insure that there wouldn't be a problem. In the
time that they have agreed to comply with the city's requirements on
this, they have had zero law enforcement intervention problems at the
site. Zero. In contrast during that same period of time, if they were to
look at the two other CUP approved uses in the city of the same use,
they would find multiple police intervention situations that have
happened. He didn't believe that the things they were doing were bad.
He believed they were prudent. He also believed that in doing that they
have gone over and above what other people in the same use and
perhaps in even less appropriate locations were doing. So he didn't
think it was quite fair to hold the fact that they were going over and
above what everyone else was doing against them because it sounded
so onerous. He hoped that the members of the commission would have
taken the time to go by Caesar's Emperor and look at the operation and
see what was going on. They would find it was just a family place that
on weekend nights limited the age of people that could come in so that
they could have some dancing and live entertainment. There were no
3
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
police problems there. There were police problems almost a year ago
that were immediately stopped before the city even intervened. He
would ask that the commission not deprive this person their right to
carry on a business that was friendly to the city. It wasn't costing the
city any extra in its law enforcement. In fact, it was less than other
uses that were currently in existence. He invited the commission to ask
him any questions they wanted about how they could help the
commission feel more comfortable with what was going on at Caesar's
Emperor and perhaps they could answer some questions that the
commission didn't know about regarding the operation itself and
whether it fits into this location. In their opinion it was the perfect
location for some use like this. There wasn't a residence within a fairly
large distance. He asked for any questions and asked the commission
to look at the history of showing that this wasn't a bad use for this area
and there were no deleterious effects whatsoever to the city.
Commissioner Lopez said that in listening and reading to previous testimony,
there was an insinuation that the conditions would go away at some certain
point of time. He understood that with the conditions of the CUP, this would
not happen, that they would always be in force as long as the conditional use
permit was in effect. He asked if that was correct. Mr. Hargreaves stated
that the preliminary injunction which at this point imposes the conditions
would lapse as soon as the lawsuit was dismissed. The conditions of approval
go forward with the business as long as that particular CUP was in place and
the applicant could come back at some point and ask that they be changed
based on future circumstances, but they couldn't unilaterally escape any of
those conditions. With a conditional use permit, if other problems develop out
there that the conditions didn't address, they could call the applicant back
before the commission and discuss imposing additional conditions.
Mr. Koller said that even last time they stipulated that they would even
come in for more often reviews than is required under the ordinance if
that was what the commission should desire. They were not trying to
do anything improper at the area. They were trying and had successfully
been doing for almost six months what he would consider to be model
business citizens of this city.
Commissioner Lopez indicated that he hadn't been there and asked for a
description of the activities that take place from 9:00 p.m. on as far as menu
items, etc.
4
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
Mr. Koller said they have expanded their menu items. For a while they
basically served pizza after 9:00 p.m. That was expanded to include
sandwiches and other food off of the menu. The only thing that
changed was that a section of the restaurant had a dance floor that was
cleared to give people the ability to dance and depending on what was
going on that evening, there was either a live band or a disc jockey that
played music so that people could dance. That was the only use of the
restaurant that changed. He said the focus was probably on the
entertainment, but the menu was available after 9:00 p.m., they limited
the age of people coming in to 18 and older just because the city and
the applicant felt that was a fair restriction. The character changed only
because it became more of an entertainment venue than a restaurant
venue, but so did other restaurants in the area, but the menu was
available.
Commissioner Campbell asked if anyone under the age of 18 would have to
leave the restaurant at 9:00 p.m.
Mr. Koller said that was correct.
Commissioner Campbell asked if that was posted.
Mr. Koller said it was posted. Very clearly one of the conditions, many
of the conditions in there, had to be and were physically posted at the
front door of the establishment. They hadn't had any problem with the
public complying with that. It hadn't been an issue.
Commissioner Lopez noted that the new conditions of approval required the
age to be 21 and asked if that was correct.
Mr. Koller said there was a long history of mistakes, but the actual court
order said 18 and there was a mistake, and it was his mistake, of
miscommunication. He believed that the age was 18 as it stood right
now in the injunction and he asked that it remain as part of the city's
conditions.
Mr. Smith informed commission that it was staff's suggestion that the age be
21 .
5
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
Mr. Koller said that in due respect to Mr. Smith, in the original meeting
when they met to determine what the conditions would be, the age was
18. He was not at that meeting. When it was transmitted to him, he
understood it to be 21 so when they went into court with Mr. Phillips,
they changed it to 21 and then he was informed that the city and
applicant had agreed to 1 8, so they actually stipulated and went back
to court and changed it to 18. He was not aware that staff had
changed the recommendation to 21 . As a matter of fact, at the last
court meeting, each side stipulated to age 18.
Commissioner Campbell asked Mr. Koller if the facility was serving only beer
and wine there.
Mr. Koller concurred.
Chairperson Jonathan asked if they were serving alcohol, why the age wasn't
21 .
Mr. Koller explained that a lot of times people over the age of 21 have
dates under the age of 21 . The people under the age of 21 didn't drink
but they could dance and have some entertainment the same way if
they went to Banana's, where they didn't have to be any age and they
could go in and have the entertainment.
Chairperson Jonathan said he thought there were restrictions for entertainment
clubs for minors being in the vicinity of where alcohol was served, although
he wasn't sure.
Mr. Koller explained that was a different class of license. That was for
the hard alcohol license.
Chairperson Jonathan noted that Mr. Koller indicated that there was
comparability between the way his client's establishment was being operated
now and other similar establishments and that in fact other similar
establishments have incidents of law violations.
Mr. Koller said what he meant to represent, and he just happened to
have read it in the paper on two occasions, where there were two
occasions between the last time they met with the commission and
now where clubs in Palm Desert had to have the police called out
6
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
because they had problems there. He wasn't saying the club did
anything in violation of the law, he was saying that perhaps a patron
was drunk and got out of control and because of that the police had to
be called in. They haven't had those issues because they put a
presence right there on the establishment so that it was nipped in the
bud. The mere presence of the uniformed officer had stopped all of the
problems they have had.
Chairperson Jonathan said his question was, of these other problems that Mr.
Koller had become aware of in other establishments, if they would have
included to his knowledge attempted homicide, domestic battery, or an actual
homicide resulting in the death of a patron.
Mr. Koller said the short answer to his question was obviously not. The
long answer to his question was that in the short period of time, way
back almost a year ago, there were some incidents that occurred at the
restaurant that gave even them some concerns and they shut down the
activities that caused that. He said there was a promoted event that
occurs in various places around the Coachella Valley. Unfortunately, his
client said yes to that and that was the Club Aftershock. Club
Aftershock has been held in several venues all over the Coachella
Valley. At the Club Aftershock was when the problems occurred.
When those problems occurred, it was immediately stopped. Club
Aftershock has not set foot in their restaurant since that incident and
they have not had one police problem since that time. They were not
permitted to be there and they would not permit them to be there.
Chairperson Jonathan thanked Mr. Koller and asked if anyone else wished to
speak in FAVOR or OPPOSITION to the proposal. There was no one and
Chairperson Jonathan closed the public hearing and asked for commission
comments.
Commissioner Finerty stated that with regard to Mr. Koller's comments about
some of the commissioners thinking that some of the things that went on
there were so onerous that perhaps they didn't see that as their image for the
City of Palm Desert, she believed that she was one of the commissioners that
he was referring to. She said she wanted to reference Mr. Drell's declaration
which said that as shown on the declarations from various members of the
Riverside County Sheriff's Department, that this location has been the subject
of various incident reports for attempted homicide, possession for the use of
7
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
drugs, speed, domestic battery, possession of stolen property, vehicle theft,
public intoxication, possession of marijuana, and most recently homicide. She
would stand by her comments made on October 5 and she would be opposed
to allowing this type of use to continue.
Commissioner Beaty said he probably had changed his mind. It wasn't
anything that Mr. Koller did. He had given this matter a lot of reflection and
Mr. Koller mentioned that he didn't think the conditions as imposed reflected
badly on the business. He thought they did and that they reflected badly on
the city of Palm Desert and he would not be in favor of continuing the
nightclub operation. He thought there was a wonderful opportunity for a pizza
parlor there and beer and wine were fine, for families and for patrons of the
movies when the movie concluded, but he felt the nightclub has caused
problems and he would like to see it cease.
Commissioner Campbell stated that she felt differently. The business had
problems because of the Club Aftershock and since they were no longer there,
the business was operating under compliance with the preliminary injunction
and since then they haven't had any problems. Also, just because they had
a club like this, that didn't mean that other areas in our city don't have people
leaving the premises that were not intoxicated. This now has police right
there to be able to go ahead and watch them. She didn't think they had the
authority to tell someone how to run their business when they were in
compliance and since this was not under the city's General Plan, she would
vote that they remain there. She knew one of the conditions was for persons
under the age of 21 not to enter the premises, she knew originally it was 18,
and since they only serve beer and wine, she would be in favor of the age
being 18.
Commissioner Lopez said that in reviewing all of the materials and listening to
the previous information, he still struggled with this from a standpoint that
even with the conditions of approval, it seemed very difficult to approve
something that would require such stringent rules and regulations on a
business that were obviously there to protect the public, but they had to be
there to protect the public because of obvious perils that were demonstrated
there. However, the conditions were there and must be abided by. They had
to be reviewed and he thought they needed to be reviewed periodically by
whoever would oversee something along these lines, but he thought the
conditions were so stringent that if in fact they were upheld, he believed the
place would probably be okay. He had a problem with allowing 18 year olds
8
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
going into a nightclub atmosphere. Not a restaurant atmosphere, but a
nightclub atmosphere to listen to bands and dance in what could be a very
crowded condition where they could not possibly be watched as to if they
were consuming alcoholic beverages or not. He would go along with the
conditions of approval, but would require that the age be 21 .
Chairperson Jonathan stated that he did not change his mind from the last
meeting and he really tried hard to bend over backwards and find justification
for granting a conditional use permit. It bothered him that the applicant began
operating a nightclub without apply for a conditional use permit. The existing
permit only allowed a restaurant use, but that was academic at this point.
What weighed heavily in his mind was that the conditions that had been
placed on the applicant in order to operate were so onerous as to make the
business operation undesirable and incompatible with the city's commercial
districts. The proposed use, he believed, would be detrimental to the public
health, safety and welfare and would be materially injurious to properties or
improvements in the vicinity. He also believed that the proposed business if
it were allowed pursuant to the proposed mediations would not comply with
the goals, objectives or policies of the city's General Plan. In a broader view,
he thought this process of approval existed in order to give cities the
opportunity to prevent undesirable businesses from locating and operating
within its borders and this applicant had provided abundant proof of the
undesirability of that particular portion of the application, specifically the
nightclub operation. This was serious and people were dying. He thought it
would be unconscionable for them to allow this to continue. He had no
problem with the first portion of the request which was to continue the portion
of the operation which was similar to Bubba Bear's serving pizza and pasta for
lunch and dinner, but he would be opposed to the new portion of the permit
which was to allow the nightclub use with dancing from 9:00 p.m. to 2:00
a.m. daily.
Commissioner Beaty stated that he would put that into a motion. Mr. Smith
indicated that the findings would also be taken from Chairman Jonathan's
comments.
Action:
It was moved by Commissioner Beaty, seconded by Commissioner Finerty, to
approving the findings as presented by staff. Motion carried 3-2
(Commissioners Campbell and Lopez voted no).
9
MINUTES
PALM DESERT PLANNING COMMISSION
DECEMBER 7, 1999
It was moved by Commissioner Beaty, seconded by Commissioner Finerty, to
adopt Planning Commission Resolution No. 1960, denying CUP 99-8. Motion
carried 3-2 (Commissioner Campbell and Lopez voted no).
B. Case No. CUP 93-7 Amendment No. 2 - KACOON'S OASIS, Applicant
Request for approval of amendments to the existing conditional use
permit to allow it to operate from 9:00 a.m. to 1 1 :00 p.m. daily and to
permit a single, non-amplified acoustical guitar player/singer between
the hours of 11 :00 a.m. and 9:00 p.m.
Mr. Smith stated that the agenda needed to be corrected in that the request
was as stated on the staff report and was somewhat different, so he would
cover that in his report. Commissioner Beaty noted that the discrepancy was
with the amplification. Mr. Smith said that was correct. The request was for
amplified music. Staff's recommendation was not to go with amplified music
and the agenda just referred to non-amplified music. Chairperson Jonathan
noted that the single performer was also deleted. Mr. Smith said that was
correct. Mr. Smith stated, so that everyone was clear, that the applicant was
seeking approval of amendments to the existing conditional use permit to allow
it to operate from 9:00 a.m. to 1 1 :00 p.m. daily. Current hours were 1 1 :00
a.m. until 10:00 p.m. And to permit amplified music set at the designated
volume between the hours of 1 1 :00 a.m. to 10:00 p.m. Mr. Smith explained
that this restaurant was originally approved under CUP 93-7 for the Sandwich
Board back in 1993. In 1996 they reviewed a request to offer live music in
the patio area. At that time the entertainment request was to range from a
single non-amplified acoustical guitar to a four-piece amplified band. During
the city's processing of the 1996 request, they heard from various people that
the volume was excessive with the four-piece band. At that time the
commission approved the request in part in that it was approved as a single
non-amplified acoustical guitar player or singer between the hours of 6:00 p.m.
and 9:00 p.m. Mr. Smith explained that now there were new owners who
were seeking expansion of the business hours. Staff had no problem with
that. They were also seeking the ability to have amplified music on the patio.
He noted that staff included in commission packets letters of opposition and
more were distributed tonight. Staff's position was that they should be
allowed to have the non-amplified music between 1 1 :00 a.m. and 9:00 p.m.,
but that it not be allowed to be amplified, and that they be allowed to open at
9:00 a.m. He said he was asked by two people what opening at 9:00 a.m.
10
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
TO: Planning Commission
DATE: November 2, 1999
CASE NO: CUP 99-8
REQUEST: Approval of a conditional use permit for a 10,000 square foot restaurant
and, after 9:00 p.m., a bar, lounge and nightclub with dancing including
live music and disc jockeys in the building located at 72-600 Dinah
Shore Drive.
APPLICANT: Caesars Emperor
72-600 Dinah Shore Drive
Palm Desert, CA 92260
BACKGROUND:
This application was originally considered at the Planning Commission meeting of
September 21 and October 5, 1999. At the October 5, 1999 meeting the matter
was effectively left unresolved in that votes to approve the request and to deny the
request resulted in a 2-2 vote with Commissioner Lopez absent.
It would have been more appropriate to have continued the October 5, 1999 hearing
to allow one more opportunity for a full commission to consider the request. As well,
certain information discussed in closed session which should have been placed in the
public record was not.
For these reasons staff has re-noticed this application and placed it on your agenda
for consideration anew.
BACKGROUND TO REQUEST:
The building was most recently occupied by Bubba Bears Pizza Theater which was
similar to Chuck E. Cheese. Bubba Bears catered children's parties and had animated
"live" musical theater.
Bubba Bears ceased operation in early 1993 and was eventually replaced with
Caesars Emperor. The business license for Caesars Emperor noted that it would be
a "pasta and pizza" establishment. On this basis staff approved the use permit
without a new conditional use permit (i.e., continuation of Bubba Bears type of
operation).
STAFF REPORT
CASE NO. CUP 99-8
NOVEMBER 2, 1999
Upon opening of Caesars Emperor in early 1999 there were a series of public safety
incidents at the business resulting in the death of one patron.
The city obtained a preliminary injunction on the operation and as a result a
settlement was negotiated to allow the business to operate, subject to conditions.
One of the conditions requires that Caesars Emperor obtain approval of a conditional
use permit "to operate a nightclub with dancing."
A. ZONING OF SITE:
PC-3 Regional Commercial.
B. ADJACENT ZONING AND LAND USE:
North: PetsMart/PC-3
South: Theaters/Rancho Mirage
East: Taco Bell/PC-3
West: Vacant/PC-3
II. CURRENT PROPOSAL:
The request at this time is to continue the portion of the operation which was similar
to Bubba Bears (i.e., serve pizza and pasta for lunch and dinner) although this use
would not place an emphasis on attracting small children. The new portion of the
permit is to allow a nightclub use with dancing from 9:00 p.m. until 2:00 a.m. daily.
III. ANALYSIS:
The nightclub/dancing use has the potential to disturb residential communities if it is
not appropriately located. This site is not located near any residential units.
The business is located in a large commercial center in a sea of parking. Most of the
other businesses are not open late in the evening. This business has a considerable
amount of its own on-site parking. If there is an overflow situation there is ample
space for it.
The issue with this late night business is how it was managed and operated. Over
the first few months of its operation the Sheriff's Department had a series of
incidents ranging from attempted homicide, drug use, domestic battery, vehicle theft,
public intoxication and homicide.
2
STAFF REPORT
CASE NO. CUP 99-8
NOVEMBER 2, 1999
Following the death of a patron on June 16, 1999, the city obtained a preliminary
injunction on the operation. The settlement agreement imposed a series of conditions
on the operation (see attached court document). The main conditions require Caesars
Emperor to employ uniformed security personnel to the city's satisfaction, two extra
duty sheriff's deputies between 9:00 p.m. and 2:00 a.m. and installation of a metal
detector manned by a trained security guard at the entrance to the business.
Since the conditions were in place (August 25, 1999) the business has operated
without major incident according to Lt. Kirby of the Sheriff's Department. There have
been a few arrests for public intoxication.
Staff will recommend approval of the CUP application subject to imposition of all of
the conditions imposed through the preliminary injunction and court order.
IV. CEQA REVIEW:
The requested conditional use permit is a Class 3 categorical exemption for purposes
of CEQA. No further review is necessary.
V. CONCLUSION:
Staff continues to recommend approval of the application, however, given the history
of the matter staff is including a resolution of denial so that commission can take an
action on this one way or the other.
VI. RECOMMENDATION:
Approval of CUP 99-8, subject to conditions.
VII. ATTACHMENTS:
A. Draft resolution of approval/draft resolution of denial
B. Staff report and minutes for September 21 and October 5, 1 999
Prepared by _
Steve Smith
/A-1 010---(2---
Reviewed and Approved
Phil Drell
/tm
3
PLA JG COMMISSION RESOLUTION .
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF PALM DESERT, CALIFORNIA, DENYING A REQUEST BY
CAESAR'S EMPEROR FOR A CONDITIONAL USE PERMIT FOR
A RESTAURANT AND, AFTER 9:00 P.M. A BAR, LO
UNGE
NIGHTCLUB, INCLUDING LIVE MUSIC AND DISC JOCKEYS IN
THE BUILDING LOCATED AT 72-600 DINAH SHORE DRIVE, APN
618-590-011 .
CASE NO. CUP 99-8
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 21 st day of September, 1999, hold a duly noticed public hearing to consider the request
of CAESAR'S EMPEROR for approval of a conditional use permit allowing a 10,000 square
foot restaurant and after 9:00 p.m. a bar, lounge and nightclub, including live music and
disc jockeys, in the building located at 72-600 Dinah Shore Drive, APN 618-590-01 1 ; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission
did find the following facts and reasons to exist to justify the denial of said conditional use
permit:
1 . The business has operated for some time pursuant to conditions of approval
imposed under a temporary injunction. While these conditions have reduced
the public safety problems which were prevalent, they are so onerous as to
make the business operation undesirable and incompatible with the city's
commercial districts.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings of
the commission in this case.
2. That approval of Conditional Use Permit 99-8 is hereby denied.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning
Commission, held on this 21st day of September, 1999, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SABBY JONATHAN, Chairperson
ATTEST:
PHILIP DRELL, Secretary
Palm Desert Planning Commission
PLANNING COMMISSION RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF PALM DESERT, CALIFORNIA, APPROVING A CONDITIONAL
USE PERMIT FOR A RESTAURANT AND, AFTER 9:00 P.M., A
BAR, LOUNGE AND NIGHTCLUB, INCLUDING LIVE MUSIC AND
DISC JOCKEYS IN THE BUILDING LOCATED AT 72-600 DINAH
SHORE DRIVE, APN 618-590-011 .
CASE NO. CUP 99-8
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 2nd day of November, 1999, hold a duly noticed public hearing to consider the request
of CAESAR'S EMPEROR for approval of a conditional use permit allowing a 10,000 square
foot restaurant and after 9:00 p.m. a bar, lounge and nightclub, including live music and
disc jockeys, in the building located at 72-600 Dinah Shore Drive, APN 618-590-01 1 ; and
WHEREAS, said application has complied with the requirements of the "City of Palm
Desert Procedure for Implementation of the California Environmental Quality Act, Resolution
No. 97-18," in that the Director of Community Development has determined that the project
is a Class 3 categorical exemption for the purposes of CEQA; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission
did find the following facts and reasons to exist to justify the granting of said conditional
use permit:
1 . That a restaurant and, after 9:00 p.m., a bar, lounge and nightclub, including
live music and disc jockeys, are permitted uses in the PC-3 zone, subject to
issuance of a conditional use permit.
2. The business has operated pursuant to conditions imposed under a temporary
injunction (for some time) and during that time has operated without public
safety incident.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings of
the commission in this case.
2. That approval of Conditional Use Permit 99-8 is hereby granted, subject to the
attached conditions.
PLANNING COMMISSION RESOLUTION NO.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning
Commission, held on this 2nd day of November, 1999, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SABBY JONATHAN, Chairperson
ATTEST:
PHILIP DRELL, Secretary
Palm Desert Planning Commission
2
PLANNING COMMISSION RESOLUTION NO.
CONDITIONS OF APPROVAL
CASE NO. CUP 99-8
Department of Community Development:
1 . That the business operator shall employ as many licensed uniformed security
personnel, trained in crowd control, as the City determines are reasonably necessary
to properly and sufficiently police the premises and the patrons in attendance at the
premises. Such security personnel shall be appropriately licensed, uniformed, and,
if applicable, bonded. Such security personnel shall have the duty to control the
premises and the patrons and to enforce these conditions at all times during the
operation of the business.
2. That the business operator shall employ a minimum of two Extra Duty Deputies with
full access inside the premises and in the parking lot shall be provided by City, said
expense to be paid by owner between the hours of 9:00 p.m. and 2:00 a.m. on any
day in which the business is open for business. The cost of such Extra Duty Deputy
is currently $46.37 per hour per deputy. The number of deputies may be increased
or decreased pursuant to order of the City or by written agreement between the
owner and the City.
3. That the business operator shall not allow any person under the age of,.2-T to attend
any events at the premises or in the parking lot of the premises from and after 9:00
p.m.
4. That the business operator shall not allow persons wearing clothing which allows
visible gang tattoos or clothing with gang writing at any time inside the premises or
on the parking lot of the premises.
5. That the business operator shall immediately eject any persons flashing gang signs
from premises and the parking lot, or by security or the police and such persons shall
be ordered to remain away from the premises and the parking lot at all times during
the business operation.
6. That the business operator shall not allow any person on the premises or in the
parking lot of the premises who possesses a weapon or any instrument which could
be used as a weapon. The entrance or entrances to the premises shall contain a
metal detector operated by the owner which shall be used to screen patrons for
weapons. The metal detector shall be manned by a trained security guard employed
by the owner at the owner's expense.
3
PLANNING COMMISSION RESOLUTION NO.
7. That the business operator shall post these conditions and rules outside the main
entrance to the business so that they are clearly visible to all patrons entering the
business.
8. That business hours of operation shall be from 1 1 :00 a.m. until 2:00 a.m. daily.
9. That the business operator shall cooperate with the Palm Desert Architectural Review
Commission to bring the business identification signs into full compliance within 45
days of this approval.
4
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
TO: Planning Commission
DATE: October 5, 1999 continued from September 21 , 1999
CASE NO: CUP 99-8
REQUEST: Approval of a conditional use permit for a 10,000 square foot restaurant
and, after 9:00 p.m., a bar, lounge and nightclub with dancing including
live music and disc jockeys in the building located at 72-600 Dinah
Shore Drive.
APPLICANT: Caesar's Emperor
72-600 Dinah Shore Drive
Palm Desert, CA 92260
BACKGROUND:
September 21 , 1999 commission continued this matter and directed staff to prepare
a resolution of denial. Staff has prepared the resolution of denial and included the
finding for denial as prescribed by Planning Commission.
Staff continues to recommend that the application be approved subject to the same
conditions as imposed under the temporary injunction. We are including a corrected
version of our original resolution. In condition number 3 we have changed "age of
1 8" to "age of 21 " to be consistent.
We note that staff views some of the conditions to be transitory. The requirement
to have two sheriff deputies on duty could be reduced in the future to one deputy if
the applicant demonstrates that the operation no longer warrants two deputies.
Commission will recall that the applicant was not present at the September 21 , 1999
meeting. Mr. Jiminez, the applicant, read an article in the paper and came and visited
staff Wednesday September 22, 1999. He will be present on October 5, 1999.
Staff will recommend that before commission deals with this item that you go into
closed session.
II. RECOMMENDATION:
Approval of CUP 99-8 subject to conditions.
STAFF REPORT
CASE NO. CUP 99-8
OCTOBER 5, 1999
III. ATTACHMENTS:
A. Draft resolutions
B. September 21 , 1999 staff report with attachments
Prepared by �('e_„4„. ..e.,,
Smith—
Reviewed and Approved by - 6--11.`9.
Phil Drell
/tm
2
PL, JG COMMISSION RESOLUTIO
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF PALM DESERT, CALIFORNIA, DENYING A REQUEST BY
CAESAR'S EMPEROR FOR A CONDITIONAL USE PERMIT FOR
A RESTAURANT AND, AFTER 9:00 P.M., A BAR, LOUNGE AND
NIGHTCLUB, INCLUDING LIVE MUSIC AND DISC JOCKEYS IN
THE BUILDING LOCATED AT 72-600 DINAH SHORE DRIVE, APN
618-590-011 .
CASE NO. CUP 99-8
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 21 st day of September, 1999, hold a duly noticed public hearing to consider the request
of CAESAR'S EMPEROR for approval of a conditional use permit allowing a 10,000 square
foot restaurant and after 9:00 p.m. a bar, lounge and nightclub, including live music and
disc jockeys, in the building located at 72-600 Dinah Shore Drive, APN 61 8-590-01 1 ; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission
did find the following facts and reasons to exist to justify the denial of said conditional use
permit:
1 . The business has operated for some time pursuant to conditions of approval
imposed under a temporary injunction. While these conditions have reduced
the public safety problems which were prevalent, they are so onerous as to
make the business operation undesirable and incompatible with the city's
commercial districts.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings of
the commission in this case.
2. That approval of Conditional Use Permit 99-8 is hereby denied.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning
Commission, held on this 21st day of September, 1999, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SABBY JONATHAN, Chairperson
ATTEST:
PHILIP DRELL, Secretary
Palm Desert Planning Commission
PLANNING COMMISSION RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF PALM DESERT, CALIFORNIA, APPROVING A CONDITIONAL
USE PERMIT FOR A RESTAURANT AND, AFTER 9:00 P.M., A
BAR, LOUNGE AND NIGHTCLUB, INCLUDING LIVE MUSIC AND
DISC JOCKEYS IN THE BUILDING LOCATED AT 72-600 DINAH
SHORE DRIVE, APN 618-590-01 1 .
CASE NO. CUP 99-8
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 21 st day of September, 1999, hold a duly noticed public hearing to consider the request
of CAESAR'S EMPEROR for approval of a conditional use permit allowing a 10,000 square
foot restaurant and after 9:00 p.m. a bar, lounge and nightclub, including live music and
disc jockeys, in the building located at 72-600 Dinah Shore Drive, APN 618-590-011 ; and
WHEREAS, said application has complied with the requirements of the "City of Palm
Desert Procedure for Implementation of the California Environmental Quality Act, Resolution
No. 97-1 8," in that the Director of Community Development has determined that the project
is a Class 3 categorical exemption for the purposes of CEQA; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission
did find the following facts and reasons to exist to justify the granting of said conditional
use permit:
1 . That a restaurant and, after 9:00 p.m., a bar, lounge and nightclub, including
live music and disc jockeys, are permitted uses in the PC-3 zone, subject to
issuance of a conditional use permit.
2. The business has operated pursuant to conditions imposed under a temporary
injunction (for some time) and during that time has operated without public
safety incident.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings of
the commission in this case.
2. That approval of Conditional Use Permit 99-8 is hereby granted, subject to the
attached conditions.
PLANNING COMMISSION RESOLUTION NO.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning
Commission, held on this 21 st day of September, 1999, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SABBY JONATHAN, Chairperson
ATTEST:
PHILIP DRELL, Secretary
Palm Desert Planning Commission
2
PLANNING COMMISSION RESOLUTION NO.
CONDITIONS OF APPROVAL
CASE NO. CUP 99-8
Department of Community Development:
1 . That the business operator shall employ as many licensed uniformed security
personnel, trained in crowd control, as the City determines are reasonably necessary
to properly and sufficiently police the premises and the patrons in attendance at the
premises. Such security personnel shall be appropriately licensed, uniformed, and,
if applicable, bonded. Such security personnel shall have the duty to control the
premises and the patrons and to enforce these conditions at all times during the
operation of the business.
2. That the business operator shall employ a minimum of two Extra Duty Deputies with
full access inside the premises and in the parking lot shall be provided by City, said
expense to be paid by owner between the hours of 9:00 p.m. and 2:00 a.m. on any
day in which the business is open for business. The cost of such Extra Duty Deputy
is currently $46.37 per hour per deputy. The number of deputies may be increased
or decreased pursuant to order of the City or by written agreement between the
owner and the City.
3. That the business operator shall not allow any person under the age of 21 to attend
any events at the premises or in the parking lot of the premises from and after 9:00
p.m.
4. That the business operator shall not allow persons wearing clothing which allows
visible gang tattoos or clothing with gang writing at any time inside the premises or
on the parking lot of the premises.
5. That the business operator shall immediately eject any persons flashing gang signs
from premises and the parking lot, or by security or the police and such persons shall
be ordered to remain away from the premises and the parking lot at all times during
the business operation.
6. That the business operator shall not allow any person on the premises or in the
parking lot of the premises who possesses a weapon or any instrument which could
be used as a weapon. The entrance or entrances to the premises shall contain a
metal detector operated by the owner which shall be used to screen patrons for
weapons. The metal detector shall be manned by a trained security guard employed
by the owner at the owner's expense.
3
PLANNING COMMISSION RESOLUTION NO.
7. That the business operator shall post these conditions and rules outside the main
entrance to the business so that they are clearly visible to all patrons entering the
business.
8. That business hours of operation shall be from 1 1 :00 a.m. until 2:00 a.m. daily.
9. That the business operator shall cooperate with the Palm Desert Architectural Review
Commission to bring the business identification signs into full compliance within 45
days of this approval.
4
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
adopting Resolution No. 1948 approving PP 99-12 for the car wash,
to conditions.
IX. MISCELLANEOUS
A. REQUEST FOR CLOSED SESSION TO CONFER WITH LEGAL ADVISOR
REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT
CODE SECTION 54956.9(A) CITY OF PALM DESERT VERSUS J. M.
MADERA LLC (CAESARS EMPEROR), RIVERSIDE COUNTY SUPERIOR
COURT NO. 12724.
Chairperson Jonathan asked if it was the commission's wish to convene into
closed session. Mr. Drell indicated that it was staff's recommendation that
before proceeding with an action on this matter that the commission be fully
informed of the background on this case. Chairperson Jonathan asked if that
was the commission's desire. Commissioner Beaty asked if they should take
care of other issues first and defer this. Mr. Drell explained that there was a
Sheriff present who would speak and staff didn't anticipate a lengthy closed
session--five minutes at the most. Chairperson Jonathan explained that the
commission would withdraw for just a few minutes into closed session and
they would be back out in just a few minutes. Commission concurred. The
Planning Commission went into closed session at 7:45 p.m.
Chairperson Jonathan reconvened the meeting at 8:04 p.m.
B. CASE NO. CUP 99-8 - CAESARS EMPEROR, APPLICANT
Per Planning Commission direction on September 21 , 1999,
presentation of a resolution of denial for a request for approval of
a conditional use permit for a 10,000 square foot restaurant and,
after 9:00 p.m., a bar, lounge and nightclub with dancing
including live music and disc jockeys in the building located at
72-600 Dinah Shore Drive.
Mr. Drell stated that staff was still recommending approval of the CUP with
conditions as outlined. He believed the conditions had been shown to be
effective in addressing the problem and hoped they would not be required in
perpetuity and would invite an amendment that this conditional use permit
would be reviewed within some fixed period of time, perhaps three months,
12
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
just to see if they were still effective or if they were still required or needed to
be modified or made less stringent. There was a problem out there and staff
believed those problems had been cured and the applicant had the opportunity
to demonstrate on a longer term his commitment to being a good member of
the Palm Desert community and staff was therefore recommending approval.
Staff also provided a resolution of denial if that was the commission's pleasure
to adopt.
Chairperson Jonathan asked if the applicant wanted to address the
commission.
MR. CHARLES KOLLER, 225 S. Civic Drive, Suite 1-2 in Palm Springs,
stated that he represented the owners of this project. The owner was
actually an LLC and at the meeting with him was Mr. Jesse Jimenez.
Chairperson Jonathan asked in what capacity Mr. Koller represented the
applicant.
Mr. Koller said he was the attorney. Mr. Jimenez was present if the
commission had any specific questions that Mr. Koller couldn't answer.
First, he wanted to apologize to the commission for not being here at
the last meeting. That was a complete communication mess up and
they did not know that the meeting was being held. It was certainly no
disrespect to this body and they felt it was sufficiently important that
they should have been at the meeting and they were tonight. He asked
the commission to accept their apologies on that. As far as the CUP
itself, they worked long and hard with staff, the Sheriff's Department,
with the city's attorneys to come up with a business and project that
would be a benefit to the city of Palm Desert. They had an inauspicious
beginning that was something even they didn't like. They understood
the concerns the city had and they have done everything the city asked
to make this a better place. He didn't know if the commission had been
told or not, but since implementing the recommendations by staff for
the operation of this facility, there have been next to no problems and
the only problems were those which should have been caught by
anybody doing any kind of business of that kind anywhere and they
were fact taken care of right there on the premises. He thought there
were two public intoxications that were taken care of and if they looked
at that in the context of other establishments of the same type, it was
even less than they have experienced in the same amount of time.
13
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
They thought they had done everything that they needed to do. He also
explained that one of the problems that happened when the
establishment first opened was a thing called Club Aftershock, which
was not the main business of his client's establishment. The
establishment was a pizza and pasta place that on Friday, Saturday and
Sunday nights after 9:00 p.m. had live music and turned into a
nightclub type operation. The Club Aftershock was a very specifically
promoted event that was no longer taking place there. It was in that
context that they had the problems they had. Since they at 9:00 p.m.
kind of let down the restaurant's operation brought up more the music
and dancing so they haven't had the problems they did. They have no
objection to a consistent review by this body or any other body to
determine if they are in compliance with what staff wants. They were
in constant contact with staff and they would like to do what they
needed to do to make sure this was a good operation. Based on that
he was present to answer any questions the commission had regarding
this situation and he understood the commission's concerns about the
last meeting and again apologized for that.
Commissioner Campbell asked what the days of operation were.
Mr. Koller said the restaurant was open seven days a week. The
"nightclub" operation, which he felt was a bit misleading because
nothing changed except there was live music or DJ music and the dance
floor was opened up, but those hours of operation were just Friday,
Saturday and Sunday and they go from 9:00 p.m. to 2:00 a.m.
Commissioner Campbell asked if on the other nights of the week the facility
closed before 2:00 a.m.
MR. JESSE JIMINEZ, 72-600 Dinah Shore Drive, stated that was his
business. He said he appreciated the Sheriff's Department who had
done a great job. He had them there Friday, Saturday and Sunday.
They were there from 9:00 p.m. until 2:00 a.m. He had two sheriffs
there and they had done a great job keeping up with the type of
clientele that neither he nor the commission would want at his place.
They didn't show up there anymore. Right now it was a better
environment. The restaurant hours were Tuesday through Sunday from
1 1 :00 a.m. until 9:00 p.m. Since the Rancho Mirage Theater opened,
he wanted to see if he could be open until 10:00 p.m. since he started
14
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
getting clientele from there for pizza. The nightclub hours, if you could
call it a nightclub, the dancing and entertainment were on Friday,
Saturday and Sunday from 9:00 p.m. until 2:00 a.m.
Mr. Drell asked for clarification that Monday through Thursday the business
would close at 10:00 p.m. and on Friday, Saturday and Sunday the restaurant
would close at 9:00 p.m. and the nightclub would be open from 9:00 p.m.
until 2:00 a.m. Commissioner Campbell asked if they were closed on Monday.
Mr. Jiminez concurred.
Chairperson Jonathan said he had a question and asked if Mr. Jiminez was
familiar conditions of approval that had been placed on this application: using
a deputy, licensed uniformed security personnel, metal detectors, etc., and
asked if in Mr. Jiminez's opinion what would occur if those types of conditions
were removed. If there weren't deputies out there, weren't metal detectors
and so forth.
Mr. Jiminez said that to be honest, with the sheriff's department he
was set for a four-month trial with the sheriff's department and if the
sheriff's department decided not to have any more sheriffs there, he
would like to have at least one there every night that the nightclub was
open because that has helped him a lot. The people that were not
wanted there, when they drive by there and see the patrol car there
they just leave the premises and don't stop there at all. If that was to
happen, if those conditions were to be removed, but he learned his
lesson from the things that happened there. He was trying to be more
secure with his security personnel, but he would like to have the
sheriff's department there, at least one during the four-month trial.
Chairperson Jonathan said that made a difference and it was very likely that
he would say that if the sheriff's presence was not there, if there weren't
metal detectors checking for weapons and so forth, he felt there might be a
reoccurrence of the previous problems.
Mr. Jiminez said it was hard for him to tell. It was not something he
could not predict. In any place where there is not good security or the
sheriff's or police department weren't there at those types of places,
sometimes that will happen and it was a sad thing that happened at his
15
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
place. He said that happened at other places, other nightclubs, and
there were fights mostly every night.
Commissioner Campbell asked for clarification regarding the four-month trial,
because she didn't see that any where in the injunction as far as the sheriffs
being there on a four-month trial basis. She didn't see a time when it was
supposed to end.
Mr. Jiminez said it was the first time he had a meeting with Mr. Drell.
He had that at home, a list. When they went to court, it wasn't put in
there, but he believed it was 1 20 days. He would have to take a look
at it.
Mr. Koller said that he thought that Mr. Jiminez was misunderstanding
the conversation with staff and what they agreed to at court which was
now, even though it was considered a preliminary injunction, it went as
long as the court said it goes. There was no sunset date on that. They
discussed with staff giving it a four-month trial to see how it works and
they incorporated that into the court injunction which makes it as long
as the court says so. There was no sunset on it.
Commissioner Beaty asked if Mr. Jiminez was involved with Club Aftershock.
Mr. Jiminez said no. He said that they used to do that at Chillers in
Palm Springs last year. During the period of time when they were out
of school and on vacation, they used to do it at Chillers.
Commissioner Beaty asked if he meant spring break.
Mr. Jiminez concurred. He said he asked the promoter to give him a
letter from the Palm Springs Police Department as to how they did over
there. He didn't continue to request the letter from him, so the
promoter did it one Wednesday and that was when everything just went
okay and the next Wednesday Alcoholic Beverage Control were there
and it was a good lesson because they kept a check all the time. That
was a lesson he learned and that was no longer there. That type of
clientele didn't go to his place any more.
Mr. Hargreaves said that in the conditions there appeared to be some
confusion with regard to the age restriction. He thought it was a condition
16
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
that was worded 18 and then it was to be changed to 21 . He asked what the
understanding was with respect to the age.
Mr. Koller said that was his fault. The original condition as discussed
in the original meeting which became the original preliminary injunction
was 18. He misunderstood that from his client when they went to
court that in court they had changed it to 21 , then when they discussed
it with the sheriff's department they also understood it to be 18, so
they went back to court again to get it changed back to 18. The
current state of the injunction was 18.
Mr. Drell said that this was a bar after 9:00 p.m. and thought that typically
bars were restricted to age 21 inside the bar itself.
Mr. Jiminez said that at night they also sold pizzas, during the dancing
hours mostly. But it wasn't a bar. When he applied for a conditional
use permit, he applied as a restaurant with dancing and entertainment.
Mr. Drell asked if his ABC license required age 21 restriction after 9:00 p.m.
Mr. Koller said no, not if he continues to sell food. Once he continues
to sell food, then it was open to the general public and there were no
restricted areas.
Commissioner Beaty asked if it was a full bar or just beer and wine.
Mr. Jiminez said beer and wine.
Mr. Drell clarified that it should be age 18.
Mr. Koller said that was what they were requesting.
Mr. Drell said that the condition, if it was so approved, the age would be 18,
not 21 .
Mr. Jiminez commented that the reason he picked that area was
because it was away from residential houses. It was more or less in the
right spot because that way it wouldn't be a public nuisance since there
were no residential homes in that area. He really wanted to thank the
17
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
commission if they approved it and he thanked the Sheriff's Department
for doing a great job at his place.
Chairperson Jonathan asked staff for clarification that condition number 3 was
changing from age of 21 to age of 18. Mr. Drell concurred. Chairperson
Jonathan asked if the commission wanted to reverse its motion to deny, if
they would have to go back to a public hearing. Mr. Hargreaves said no. Mr.
Drell noted that both resolutions were in front of the commission: one for
approval and one for denial. Chairperson Jonathan asked for commission
comments.
Commissioner Campbell said that she go with the court order for the three
years and since Club Aftershock was no longer there and they had a new
insight as to the days of operation and the club was only operating Friday,
Saturday, and Sunday from 9:00 p.m. until 2:00 a.m. and the restaurant from
11 :00 a.m. until 9:00 or 10:00 p.m. and as the sheriff informed commission,
there haven't been any problems so far and she would be in favor of granting
them their conditional use permit and having a six-month review. If a problem
occurs, the CUP could come back for review and they could issue new
conditions on it.
Commissioner Finerty stated that because of the problems that have taken
place her perspective as a Planning Commissioner for what she wanted the
image of Palm Desert to be did not include the type of activities that have
taken place at this facility. She was really concerned for the safety of our
citizens and when they had to have two sheriffs, metal detectors, security
personnel on staff to operate an establishment in our city, she felt that
something was fundamentally wrong. She didn't know in her heart if two
months was long enough for the applicant to have demonstrated compliance
and a total turnaround. She would think that just having been issued the
injunction, they could expect perfect behavior, but in her mind two months
wasn't long enough. Therefore, she would be uncomfortable with going along
with the conditional use permit.
Commissioner Beaty said he didn't think he understood. They weren't
proposing to release or relieve any of the court conditions.
Commissioner Finerty acknowledged that.
18
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
Commissioner Beaty said he wholeheartedly agreed with Commissioner
Finerty's feelings that they weren't interested in having those types of clients
in our city for any reason. Maybe some of them live here, but he would like
them to go somewhere else and cause problems. But he was swayed by the
deputy's report that since the court conditions were imposed, there haven't
been any problems. He would be in favor of granting the conditional use
permit with a structured review.
Chairperson Jonathan said that the last time he as a commissioner dealt with
this parcel it was a Bubba Bear's. A little kid's restaurant. Somewhere along
the line it went from a Bubba Bear's to a nightclub that stays open until 2:00
- a.m. and serves alcohol and has had problems. He didn't remember approving
that use. He thought that use had proven to be a problem and, therefore, his
conclusion was that what the commission approved originally, which was a
restaurant use, was fine for that parcel. Anything else was not appropriate.
He thought on the basis of land usage, he didn't have a problem with the
restaurant aspect of the operation and he would be willing to approve that.
With restaurant use hours would be 1 1 :00 a.m. to 10:00 p.m. seven days a
week. He thought that was fine. They could serve pizza and that was close
enough to what was there before. He didn't see that was a problem. He did
see that anything beyond that would be a problem, so as the application is
before them, he was not prepared to give approval.
Action:
It was moved by Commissioner Beaty, seconded by Commissioner Campbell,
approving the findings as presented by staff to approve the project. Motion
failed on a 2-2 vote (Chairperson Jonathan and Commissioner Finerty voted
no).
Mr. Drell explained that basically this was a no action, therefore, they would
refer this directly back to the City Council. Mr. Hargreaves said that was right
because technically in order to deny it they would have to have findings and
denial. Given the 2-2 split that probably wasn't going to be possible either, so
it should be referred onto the City Council. Chairperson Jonathan asked if
they had to formally do that, or if it would happen automatically. Mr.
Hargreaves said that in order to deny it, the commission would have to adopt
findings in support of it. Chairperson Jonathan said he meant for this to go to
City Council if it would happen automatically. Mr. Hargreaves concurred.
Chairperson Jonathan asked if they needed further action. Mr. Drell asked if
they needed to try an alternative motion. Chairperson Jonathan pointed out
19
MINUTES
PALM DESERT PLANNING COMMISSION
OCTOBER 5, 1999
that they have before them the resolution of denial. He asked if they wanted
a motion to approve the resolution of denial just to be on record. Mr.
Hargreaves concurred.
Action:
It was moved by Commissioner Finerty, seconded by Chairperson Jonathan,
approving the findings to deny the project. Motion failed on a 2-2 vote
(Commissioners Beaty and Campbell voted no.)
C. REQUEST BY RENEE BARIBEAU FOR PLANNING COMMISSION TO
INITIATE A ZONING ORDINANCE AMENDMENT TO PERMIT CATERING
KITCHENS IN THE O.P. ZONE
Mr. Drell said this was initiated by specific request by a potential caterer. The
request was to list it as a conditional use in the O.P. zone. The commission
had before them the minutes from the Zoning Ordinance Review Committee
which took up this item. Part of the confusion resulted from the applicant's
description of the worst case potential for the business which described it as
serving up to 100 meals per day. He thought the perception and potential
impacts of that, dinner houses didn't do 100 dinners per day, kind of scared
off the Zoning Ordinance Review Committee and influenced the staff
recommendation that something that was potentially that intense in terms of
food preparation might not be compatible in the O.P. zone. Subsequently the
applicant said that she probably wouldn't want to do 100 meals per day and
if she did, she probably wouldn't want to be at that location either, so one of
the advantages of having it as a conditional use was that a caterer could
arrange for four parties a month up to 100 meals per day. In any particular
location, some locations might be deemed by commission to be unacceptable
for any sort of catering activity. Others might be acceptable for the four or six
or one party per week. Others might be acceptable for a higher intensity use
and that might be something the commission would deal with on a case-by-
case basis when applications came in. He thought that there were probably
some people who do catering in their homes right now as a home occupation
that they didn't even know about. By listing it as a conditional use they
weren't committing to any particular application. Based on the merits of each
particular request, the commission would have the ability to approve, deny,
modify, or limit. If the commission felt that inherently at any intensity the use
was unacceptable, then the commission would act not to initiate. All they
were doing here was initiating the amendment process. Members of the public
20
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
TO: Planning Commission
DATE: September 21 , 1999
CASE NO: CUP 99-8
REQUEST: Approval of a conditional use permit for a 10,000 square foot restaurant
and, after 9:00 p.m., a bar, lounge and nightclub with dancing including
live music and disc jockeys in the building located at 72-600 Dinah
Shore Drive.
APPLICANT: Caesars Emperor
72-600 Dinah Shore Drive
Palm Desert, CA 92260
BACKGROUND:
The building was most recently occupied by Bubba Bears Pizza Theater which was
similar to Chuck E. Cheese. Bubba Bears catered children's parties and had animated
"live" musical theater.
Bubba Bears ceased operation in early 1993 and was eventually replaced with
Caesars Emperor. The business license for Caesars Emperor noted that it would be
a "pasta and pizza" establishment. On this basis staff approved the use permit
without a new conditional use permit (i.e., continuation of Bubba Bears type of
operation).
Upon opening of Caesars Emperor in early 1 999 there were a series of public safety
incidents at the business resulting in the death of one patron.
The city obtained a preliminary injunction on the operation and as a result a
settlement was negotiated to allow the business to operate, subject to conditions.
One of the conditions requires that Caesars Emperor obtain approval of a conditional
use permit "to operate a nightclub with dancing."
A. ZONING OF SITE:
PC-3 Regional Commercial.
B. ADJACENT ZONING AND LAND USE:
North: PetsMart/PC-3
STAFF REPORT
CASE NO. CUP 99-8
SEPTEMBER 21, 1999
South: Theaters/Rancho Mirage
East: Taco Bell/PC-3
West: Vacant/PC-3
II. CURRENT PROPOSAL:
The request at this time is to continue the portion of the operation which was similar
to Bubba Bears (i.e., serve pizza and pasta for lunch and dinner) although this use
would not place an emphasis on attracting small children. The new portion of the
permit is to allow a nightclub use with dancing from 9:00 p.m. until 2:00 a.m. daily.
III. ANALYSIS:
The nightclub/dancing use has the potential to disturb residential communities if it is
not appropriately located. This site is not located near any residential units.
The business is located in a large commercial center in a sea of parking. Most of the
other businesses are not open late in the evening. This business has a considerable
amount of its own on-site parking. If there is an overflow situation there is ample
space for it.
The issue with this late night business is how it was managed and operated. Over
the first few months of its operation the Sheriff's Department had a series of
incidents ranging from attempted homicide, drug use, domestic battery, vehicle theft,
public intoxication and homicide.
Following the death of a patron on June 16, 1999, the city obtained a preliminary
injunction on the operation. The settlement agreement imposed a series of conditions
on the operation (see attached court document). The main conditions require Caesars
Emperor to employ uniformed security personnel to the city's satisfaction, two extra
duty sheriff's deputies between 9:00 p.m. and 2:00 a.m. and installation of a metal
detector manned by a trained security guard at the entrance to the business.
Since the conditions were in place (August 25, 1999) the business has operated
without major incident according to Lt. Kirby of the Sheriff's Department. There have
been a few arrests for public intoxication.
Staff will recommend approval of the CUP application subject to imposition of all of
the conditions imposed through the preliminary injunction and court order.
2
STAFF REPORT
CASE NO. CUP 99-8
SEPTEMBER 21 , 1999
IV. RECOMMENDATION:
Approval of CUP 99-8 subject to conditions.
V. ATTACHMENTS:
A. Draft resolution
B. Legal notice
C. Comments from city departments and other agencies
D. Plans and exhibits
Prepared by (/'' � r1
Steve Smith
Reviewed and Approved by
1)t?l-if--
Phil Drell
/tm
3
PLANNING COMMISSION RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF PALM DESERT, CALIFORNIA, APPROVING A CONDITIONAL
USE PERMIT FOR A RESTAURANT AND, AFTER 9:00 P.M., A
BAR, LOUNGE AND NIGHTCLUB, INCLUDING LIVE MUSIC AND
DISC JOCKEYS IN THE BUILDING LOCATED AT 72-600 DINAH
SHORE DRIVE, APN 618-590-011 .
CASE NO. CUP 99-8
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 21 st day of September, 1999, hold a duly noticed public hearing to consider the request
of CAESAR'S EMPEROR for approval of a conditional use permit allowing a 10,000 square
foot restaurant and after 9:00 p.m. a bar, lounge and nightclub, including live music and
disc jockeys, in the building located at 72-600 Dinah Shore Drive, APN 618-590-011 ; and
WHEREAS, said application has complied with the requirements of the "City of Palm
Desert Procedure for Implementation of the California Environmental Quality Act, Resolution
No. 97-18," in that the Director of Community Development has determined that the project
is a Class 3 categorical exemption for the purposes of CEQA; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission
did find the following facts and reasons to exist to justify the granting of said conditional
use permit:
1 . That a restaurant and, after 9:00 p.m., a bar, lounge and nightclub, including
live music and disc jockeys, are permitted uses in the PC-3 zone, subject to
issuance of a conditional use permit.
2. The business has operated pursuant to conditions imposed under a temporary
injunction (for some time) and during that time has operated without public
safety incident.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings of
the commission in this case.
2. That approval of Conditional Use Permit 99-8 is hereby granted, subject to the
attached conditions.
PLANNING COMMISSION RESOLUTION NO.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning
Commission, held on this 21st day of September, 1999, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SABBY JONATHAN, Chairperson
ATTEST:
PHILIP DRELL, Secretary
Palm Desert Planning Commission
2
PLANNING COMMISSION RESOLUTION NO.
CONDITIONS OF APPROVAL
CASE NO. CUP 99-8
Department of Community Development:
1 . That the business operator shall employ as many licensed uniformed security
personnel, trained in crowd control, as the City determines are reasonably necessary
to properly and sufficiently police the premises and the patrons in attendance at the
premises. Such security personnel shall be appropriately licensed, uniformed, and,
if applicable, bonded. Such security personnel shall have the duty to control the
premises and the patrons and to enforce these conditions at all times during the
operation of the business.
2. That the business operator shall employ a minimum of two Extra Duty Deputies with
full access inside the premises and in the parking lot shall be provided by City, said
expense to be paid by owner between the hours of 9:00 p.m. and 2:00 a.m. on any
day in which the business is open for business. The cost of such Extra Duty Deputy
is currently $46.37 per hour per deputy. The number of deputies may be increased
or decreased pursuant to order of the City or by written agreement between the
owner and the City.
3. That the business operator shall not allow any person under the age of 18 to attend
any events at the premises or in the parking lot of the premises from and after 9:00
p.m.
4. That the business operator shall not allow persons wearing clothing which allows
visible gang tattoos or clothing with gang writing at any time inside the premises or
on the parking lot of the premises.
5. That the business operator shall immediately eject any persons flashing gang signs
from premises and the parking lot, or by security or the police and such persons shall
be ordered to remain away from the premises and the parking lot at all times during
the business operation.
6. That the business operator shall not allow any person on the premises or in the
parking lot of the premises who possesses a weapon or any instrument which could
be used as a weapon. The entrance or entrances to the premises shall contain a
metal detector operated by the owner which shall be used to screen patrons for
weapons. The metal detector shall be manned by a trained security guard employed
by the owner at the owner's expense.
3
PLANNING COMMISSION RESOLUTION NO.
7. That the business operator shall post these conditions and rules outside the main
entrance to the business so that they are clearly visible to all patrons entering the
business.
8. That business hours of operation shall be from 1 1 :00 a.m. until 2:00 a.m. daily.
9. That the business operator shall cooperate with the Palm Desert Architectural Review
Commission to bring the business identification signs into full compliance within 45
days of this approval.
4
Sep-07-99 14:41 From-BEST, P`" ' KRIEGER 760-340-6698 T-318 P.02/05 F-117
Douglas S. Phillips, 074906
LAW OFFICES OF MDN( JO COUP
2 BEST BEST&KRIEGER LLP �DPpRRwERSIDE CVNN
397001308 HOPE A8.1VF,SUM 312 5 1999
3 POST OFFICB BOX 1555 AUG
RANCHO MIRAGE,CALIFORNIA 92270
4 TELEPHONE (7601568-2611 Jf►r1'WAA '
TELfCOPIER (760)340-66911 BY 147,14,04--
Attorneys for Plaintiff
6 City of Palm Desert
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF RIVERSIDE
10 INDIO BRANCH
11 CITY OF PALM DESERT, a charter Case No. INC 012724
city.
12 STIPULATION FOR ENTRY OF
Plaintiff, PRELIMINARY INJUNCTION AND
13 ORDER THEREON
v.
14
J. M. MADERA, LLC, a limited
15 liability corporation; JESSE Date: August 25, 1999
JIMENEZ, individually and dba Time: 8 :30 a.m.
16 CAESAR EMPEROR aka CLUB AFTER Dept. : 2H
SHOCK; JOSE MONTENEGRO, Judge Christopher J. Sheldon
17 individually and dba CAESAR Complaint Filed June 22, 1999
EMPEROR aka CLUB AFTER SHOCK: No Trial Date
18 DOES 1 THROUGH 100, inclusive,
19 Defendants.
20
21
22
23
24
25
26
27
28
gapua.xcn 1551 c3 Srspularion for F.Nry of Prciuninary Iryunnian,Choy 7turrwa
Sep-0T-99 14:41 From-BEST, P`" ' KRIEGER T60-340-6698 T-318 P.03/05 F-117
1 IT IS HEREBY STIPULATED BY THE PARTIES HERETO through their
2 respective counsel that :
3 (1) Defendants, and each of them, their agents, servants,
4 employees and representatives, during the pendency of this action,
5 shall :
, 6 (a) Employ as many licensed uniformed security
7 personnel, trained in crowd control, as the City
8 determines are reasonably necessaryto properly and
9 sufficiently police the premises and the patrons in
10 attendance at the premises. Such security personnel
11 shall be appropriately licensed, uniformed, and, if
12 applicable, bonded. Such security personnel shall have
13 the duty to control the premises and the patrons and to
14 enforce these conditions at all times during the
15 operation of the business;
16 (b) Employ a minimum of two Extra Duty Deputies
17 with full access inside the premises and in the parking
18 lot shall be provided by City, said expense to be paid by
19 owner between the hours of 9 :00 p.m. and 2 : 00 a.m. on any
20 day in which the business is open for business. The cost
21 of such Extra Duty Deputy is currently $46.37 per hour
22 per deputy. The number of deputies may be increased or
23 decreased pursuant to order of the City or by written
24 agreement between the owner and the City;
25 (c) Not allow any person under the age of la to
14
26 attend any events at the premises or in the parking lot
27 of the premises from and after 9:00 p.m. ;
28 (d) Not allow clothing which allows visible gang
-2-
Rmpud'RGs\:ss1 b, >opulauau for Envy of Preilmtn.ry hywxu' order Thema)
Sep-07-99 14:41 From-BEST, Eu" • KRIEGER 760-340-6698 T-318 P.04/05 F-117
1 tatoos or clothing with gang writing shall be permitted
2 at any time inside the premises or on the parking lot of
3 the premises;
4 (e) Immediately eject any persons flashing gang
5 signs from premises and the parking lot, or by security
6 or the police and such persons shall be ordered to remain
7 away from the premises and the parking lot at all times
8 during the business operation;
9 (f) Not allow any person on the premises or in the
10 parking lot of the premises who possesses a weapon or any
11 instrument which could be used as a weapon. The entrance
12 or entrances co the premises shall contain a metal
13 detector operated by the owner which shall be used to
14 screen patrons for weapons. The metal detector shall be
15 manned by a trained security guard employed by the owner
16 at owner's expense;
17 (g) Post these conditions and rules outside the
18 main entrance to the business so that they are clearly
19 visible to all patrons entering the business;
20 (h) No later than Friday, September 3, 1999, apply
t actions reasonablynecessary
for and thereafter cake all
22 to obtain a Conditional use Permit to operate a nightclub
23 with dancing at 72-200 Dinah Shore Drive or 72-600 Dinah
24 Shore Drive (caesar's Emperor) within the City of Palm
25 Desert,
26 (2) If defendants fail to file with the City a completed
27 application for a Conditional Use Permit (including all fees) by
28 September 3, 1999, the City shall, on Tuesday, September 7, 1999,
.3.
RmPUB‘RGS\155163PilloSauu fur retry of ft.ton aty 4 on.�T Thotton
Sep-07-99 14:41 From-BEST, "" ° KRIEGER 760-340-6698 T-318 P 05/05 F-117
1 apply for an order to close the business known Caesar Emperor aka
2 Club After Shock, located at 72-200 Dinah Shore Drive or 72-600
3 Dinah Shore Drive, Palm Desert, California.
4 (3) Plaintiffs motion for attorneys fees and costs shall be
5 heard on October 8, 1999, at 8 :30 a.m. , in Department 2H,
6 Defendants may file and fax serve an opposition no later than 5 : 00
7 p.m. on September 23 , 1999 . Plaintiff may file and fax serve any
8 reply, including any declarations as to attorneys fees incurred to
9 date, by 5 :00 p.m. on October 1, 1999.
10
11 Dated: 11.7.0r1117 CHARLES E. KOLLER
12
By_
13 Timo y Ewan s
Attorney for Defendants Jesse
14 Jimenez and Jose Montenegro
15 (� �rL
16 Dated: 11VA Zit OAR BEST BEST EL KRIEGER, LLP
17
By I ,
18 Dougla' S. Phillips
Deputy City Attorney
19 Attorneys for Plaintiff City of
Palm Desert
20
21
ORDER
22
IT IS SO ORDERED_
23 AUG 2 5195i CriristcphefJ. Shefwn
24 Dated:
Judge of the Superior Court
25
26
27
28
-4-
Rf7PUa\RC5.1 5 51 G 3 Supalauon for Entry of Prelarturary Injtncuon;Order Tkaoon
Sep-10-99 16:59 From-BEST, 117 ' KRIEGER 760-340-6698 T-398 P.02/05 F-290
Douglas S Phillips, 074906
LAW OFFICES OF - _
2 BEST BEST KRIEGER LLP a 0
39700 Boa HOPE DRIVE,SLIM 312 arDL}
3 POST Ot-FICE BOX 1555 OF E--- S OE OUN OUR
RANC110 MIIRAGE,C 3L4FORNIn 92270
4 rELEPHONE.(76U)56 -261 I J U N 9 9 1999
TF.LECOPIER.(760)340-6698
5
Attorneys for Plaintiff .G. HER
6 City of Palm Desert
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF RIVERSIDE
10 INDIO BRANCH
11 CITY OF PALM DESERT, a charter Case No. INC 012724
city,
12
Plaintiff, DECLARATION OF PHIL DRELL,
13 DIRECTOR OF COMMUNITY
v. DEVELOPMENT, IN SUPPORT OF EX
14 PARTE APPLICATION FOR
J. M. MADERA, LLC, a limited TEMPORARY RESTRAINING ORDER
15 liability corporation; JESSE AND ORDER TO SHOW CAUSE RE
JIMENEZ, individually and dba PRELIMINARY INJUNCTION
16 CAESAR EMPEROR aka CLUB AFTER
SHOCK; JOSE MONTENEGRO, Dace: June 24, 1999
17 individually and dba CAESAR Time: 8 :30 a.m.
EMPEROR aka CLUB AFTER SHOCK; Dept _ ; 2H
18 DOES 1 THROUGH 100, inclusive, Judge Christopher J. Sheldon
Complaint Filed June 23, 1999
19 Defendants. No Trial Dace
20
21
22
23
24
25
26
27
28
esizsi\spv.gndwm
ry' Rq ,o uettnmt
-e-
go adAa eta •uot2pot awls aua at Susxnpasaa xoxadm3 assas3 xoI gZ
men 3o aapo u Taxao p pansst (auamaxsdaa butuUsTd aua) zuawzxt?daa LE
auaurdotanad AatunmmcQ auz '866t 'E aagmaoeU up •9 9Z
-aau.zado oZ past'a° pup ssautsnq go 1no 5z
auaM xaaEagy t'zztd s ,apag sgt{ng 'E66t 'st Aatnut?,(• .xaa3y 'S VZ
aoua.za;ax £Z
sTga Aq ;oaxag axed E apses pus fit.. a-tgTgxa sE oaaxaq pagoaasa st zZ
asn aupxnpasax log asuaotj ssautsnq apga ;o Adoo v • E udpxbp.xpd tZ
uT pagtsosap st ssm asn ausanpasax aua anq 'asn „aupanrasa.z„ oZ
=o; c66t 'ST AitralEr uo pansst stm asuaoTT ssautsnq E 6t
'xaapagy pzztd s ,arag Eggng go aspo aua ui -pupdxa io abUEgo zou 81
n
swop asn aga sE buot os 'sasn paaatmxad sp aasxado oa anutauoo oa Lt ° om
0
sassauisnq 6uTastxa stwxad 01 st 'Aaz3 aua oa paxauup aas gzTTM 91 m
o r1
sassauTsnq 6UTastxa oa aoadsa.z uamm 'Aat1od s ,AaTD auy • � ST P°�°
-a.xasaga Tpotsrrm „mitt„ paapwTup up ppq pup 'saTuard tt o
0Uv,�
s ,uaxpTtuo paxaato s ,xpag Pggng •uaspTtga bunoA xog atgsa*ns FI Nv t
samsb appals snoxawnu p us 's utx o � �
P u P x _ p a�os 'Poo; pan.xas s,xEag et � ^
A
pggng 'uaTPtztia bunoA o2 butxamsn ati+pxnulsa.z asaa140 ti
oa :ET-turps ]up.xntasaa t? SEM uotgM 'xaapauy szztd s ,xpag pggng Aq Ot
patdnaoo stm Aaxadoxd aaacgns aqa mina aua apt ' Z66t 'IZ .zagwaaa6 6
uo a.xasar wtpd ;o AaTD aga 02 paxauup spM 'ptuxo;TTp- 'a.xasaQ 8
m1pd an'tx� aaogS upuTU OOZZG p paspaot Auxadoxd au/ ' E L
•Naotts gnIJ butpxsbax uoTaounCut 9
AapuTmITaxd pup xapxo butuTpxasax Aataodwaa p at); uoT2tottdds 5
s,AaTD aua go a.zoddns uT uotapat'Toap stga a3(pw I ' Z b
986t gaups os uaaq ansq pup axasa6 mT' d ;o E
AuTJ aua xog auatudoTanaa Aatunmmoo go 1ozoaaTa aqa We I t Z
sMoflo; st aasTaap •r1atc ttud 'I t
08Z-d SO/EO d 06E-1 8699-01E-091 2135310 9 '1S38_wold 00:11 66-01-d*S
Sep-10-99 1T:00 From-BEST, Er" • KRIEGER T60-340-6698 T-398 P.04/05 F-290
1 products and services provided is described as "pasta and pizza" .
2 The certificate of use also indicates that live music and a disc
3 jockey will be offered. On December 24, 1998, a business license
4 was issued for a "restaurant" .
5 7. Defendants advised me and it was my understanding that
6 the City was simply continuing the Bubba Bear' s Pizza Theater
7 restaurant use as an Italian family restaurant, with music and
8 entertainment, which under City policy means that at least 50% of
9 the total sales is from food.
10 8. Bubba Bear' s permitted children on the premises during
11 all operating hours. Caesar Emperor restaurant is open to
n 12 children only until 9 :00 p.m. After 9 :00 p.m. only persons aged
4
r.
• �t,pa 13 21 years and older are permitted on the premises.
• 14 9. Caesar Emperor is a restaurant until 9:00 p.m. and is
=ou 15 open to children. However, after 9:00 p.m. , the restaurant use
101m- ' 16 changes to a nightclub use. Food is no longer available and
N a -
tolo i 17 persons under age 21 are no longer permitted to enter the
• 18 premises. In fact, as of 9 :00 p.m. , the premises becomes a full
19 blown nightclub and dance bar serving beer and wine . This is a
20 "recreational establishment" that also requires a conditional use
21 permit under Palm Desert Municipal Code 525 . 030 . 020 (E) .
22 Defendants have no conditional use permit for an amusement or
23 recreational establishment.
24 10. As shown on the declarations from various members of
25 the Riverside County Sheriff Department, this location has been
26 the subject of various incident reports for attempted homicide,
27 possession for use of drugs (speed) , domestic battery, possession
28 of stolen property, vehicle theft, public intoxication,
-3-
_ linidon of Phil Dr—cr —"
RMPUB\RCS'152158
Smp-10-99 17:00 From-BEST, B KRIEGER T60-340-6698 T-398 P.05/05 F-290
1 possession of marijuana, and most recently, homicide. Following
2 an incident on June 16, 1999, a patron died. This incident is
3 currently being investigated as a homicide by the Riverside
4 County Sheriff Department.
5 11. The City never intended that Subba Sear's restaurant
6 would become what is now Caesar's Emperor/the After Shock. The
7 City Municipal code Section 25 .30 .020 (B) only permits an
8 amusement and recreational establishment use only upon precise
9 plan or conditional use permit approval_
10 12 . Given the Incident Reports which have been generated at
11 the location since February 1999, the need for additional City
Y
a ; 12 regulation by way of a precise plan approval or conditional use
^
iCnry 13 permit is clear. The City should be permitted to regulate the
DaA
XMow
14 hours of operation, require additional security and other safety
72
o ___Q 15 measures to ensure that patrons are not injured and to further
q Z `
nmg-< 16 ensure that the neighborhood is not "blighted" by this use.
of
o °z 17 I declare under the penalty of perjury under the laws of the
18 State of California that the foregoing is true and correct, and
19 if called upon as a witness, I could and would competently
20 testify to the facts set forth herein, which facts are of my own
21 personal knowledge.
22 Executed this 22nd day of June, 1999 in Palm Desert,
23 California.
24
25
Phil Drell
26
27
28
-4-
Dccuratioa cif?hiCDro�
RHPu9\RG3\1b4150
__ 1_—. - _
\\;:r_eia
o du as _
• 0.
--�
o ` 0ea , 0 a A
• 0
�� �~ i/lit%d1 �'���,o 0 �I c �,
® DANc� l p aO c E \��
0 c Lou R o0 a ®o - 0 o F LOnQ, a i .
O ,
a \�` a p ate° • , VI 0 or
a 0 006 Q 1 d D 0 d
O 0 a cs 0 0 , .......r. fo, 5 az-
,w,.,...__ ;.j. . , ,...„..
.---- .__, 4._ , , „_.___
0 K 0,,,,, ,, 000 •rra.L_ 0 b\ w
0 0 0 0
e,,o ,0:4:.
1
,,/� b 0 0 / o /0 0 / 0 v j u„o
.6 „ tt4. 4 .141 $` '
",
_ ,,
g t 1 . VIDEO G RN S
v)
0
•J
cc
7
co IKIXCN-1EO
et POOL ROOT\
l
s `
E -
I
a
444
•
I `1 I V 11► r(
THIS MICROPIIN COPYRIGHTED
n _ '�' T ? 1995 B? SECURITY (IlIIQI TIT[, ui;.
. ,t' r 7 C�G,
��. �+ y L ,(, j I J IxsmrncE vaHPAtt�r
i ell• •♦ MICROGRAPHICS DIVISiQI
.-
•
—� ! \.
1-1- -,,--
:j
YiA `a
t.
___ _._________,,_
si......
,1,141, ,dEFO•lip AII,A ri: t
---:i[ -, •••••En 0.1...1
s P, ,wcn. 0 o.►
1 s_ •
r ,,,.. ( i
i� / u+0. H-----if--`--f0 i I .T
1
J /
li�f J 1 11
n..c•i, I 1fn0 II
l 1 T j
1V
<I �IVAfil
N •Lt:7 -74'VC.I
•
I
6.
....� CH 141 =�` •
•
In
(TOTAL/ M.7„
���iiiNi i/ tAICA) MIM
I4+1 ---I---I k—•1- -fl ► E • f..n
IMO
l •/) f�A Xf11 .I ..nay SITE PLAN
. . a s t. 1w g�"'Y—i..�
I
i A — 11l—
—'T -I 1---•4—II
n i. <.
�1 .f-111 .nut .n Hm lu Ill -u -
.rr
L' 113=i...
RIVERSIDE COUNTY
s-.- \., -fie•
-
LARRY D. SMITH, SHERIFF 1� �' A Ay
9
h
A«1„ ,
;. N t'e
4 - sh If
73-520 FRED WARING DRIVE • PALM DESERT, CA 92260 • (760) 836-1600
PROUDLY SERVING AS THE PALM DESERT POLICE DEPARTMENT
RECEIVED
September 1 , 1999 SEP 16 1999
COMMUNITY DEVELOPMENT DEPARTMENT
CITY OF PALM DESERT
City of Palm Desert
Planning Department
73-510 Fred Waring Drive
Palm Desert, Cal. 92260
Attention Phil Drell
Re: Conditional Use Permit 99-08
Caesars Emperor (As stipulated in INC 012724)
Dear Mr. Drell
The Sheriff's Department has no objections to the proposed Conditional Use Permit
on the Caesars Emperor. All conditions as stipulated by Indio Superior Court in
docket number INC 012724 must be complied with by Caesars Emperor prior to
business.
We appreciate the opportunity to comment on the project from a law enforcement
point of view.
Sincerely,
Larry D. Smith, Sheriff
I/ 7/
D ille , aptain
Palm Desert Station Commander
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21 , 1999
Mr. Smith noted that the plan was on the wall to commission right and a copy
of the map was given to commission in their packets. As indicated the
proposal was to split off a 26,900 square foot parcel from the remaining 11 .3
acre site. Currently on the site there was a Residence Inn and Courtyard
Hotel. He indicated that commission would recall when they processed the
hotel development, they were assured that there would be a restaurant on the
corner and this was the first step toward that. The commission would have
the opportunity to review the conditional use permit on the actual restaurant
user when that is received. They did not at this time have that application.
Staff recommended approval of the parcel map. The findings were outlined
on pages 1 and 2 of the staff report. The matter was reviewed as part of the
environmental review for the hotel development and the North Sphere Specific
Plan so staff's recommendation was that commission approve it, subject to
the conditions in the report.
Chairperson Jonathan asked if at this point Mr. Smith's opinion was that there
was no indication from the applicant of any change in intended use for that
property. Mr. Smith concurred.
Chairperson Jonathan opened the public hearing and asked the applicant to
address the commission. He asked if the applicant was present. There was
no response.
Chairperson Jonathan asked if anyone wished to speak in FAVOR or
OPPOSITION. There was no one and the public hearing was closed.
Action:
It was moved by Commissioner Finerty, seconded by Commissioner Lopez,
approving the findings as presented by staff. Motion carried 5-0.
It was moved by Commissioner Finerty, seconded by Commissioner Lopez,
adopting Planning Commission Resolution No. 1940, approving PM 29465,
subject to conditions. Motion carried 5-0.
D. Case No. CUP 99-8 - CAESAR'S EMPEROR, Applicant
Request for approval of a conditional use permit for a 10,000
square foot restaurant and, after 9:00 p.m., a bar, lounge and
6
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21 , 1999
nightclub with dancing including live music and disc jockeys in
the building located at 72-600 Dinah Shore Drive.
Mr. Smith stated that the existing building was most recently used by Caesar's
Emperor. Prior to that it was Bubba Bear's Pizza Theater. The application for
the Caesar's Emperor use, when they applied for their city business license,
described their use in terms different than what it effectively became. As a
result there had been some ongoing problems at the site and the city obtained
a temporary injunction on the operation. As part of the settlement of that
injunction the court required that the applicant obtain a conditional use permit
on the actual use itself. Their task was to evaluate that situation. Staff's
recommendation was that basically it was an appropriate location for this use
if it is operated properly. As a result of the injunction settlement, the business
has for some time been operating under conditions imposed in that settlement,
which commission received a copy of in their packets. It required amongst
other things that the applicant employ two off duty sheriff's deputies during
the operation of the business between 9:00 p.m. and 2:00 a.m., that they
have uniformed security personnel on the site, and that they have a metal
detector at the entrance. Staff's recommendation was that commission
approve the conditional use permit subject to all of the conditions imposed as
part of the settlement agreement between the parties. He asked for questions.
Commissioner Lopez noted that on item three of the conditions of approval,
there was a time frame indicated for the parking lot "from and after 9:00
p.m." and asked if he was reading that right. Mr. Smith said that was right.
In the past they had operated parties in the parking lot and offered car washes
and that type of thing. The idea was that they wanted to keep the under age
folks out of that area after 9:00 p.m.
Commissioner Finerty asked for clarification on the age--if it was 18 or 21 .
Mr. Smith said to enter the premises after 9:00 p.m. they had to be 21 .
Commissioner Beaty said that wasn't clear on the court document. It looked
like 28. Mr. Smith said it was 21 . Commissioner Beaty said it looked like
someone changed it and initialed it and asked if Mr. Smith did that. Mr. Smith
said no.
Chairperson Jonathan opened the public hearing and asked the applicant to
address the commission. There was no response. Chairperson Jonathan
7
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21 , 1999
asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal.
There was no one and the public hearing was closed.
Chairperson Jonathan said that before the commission got into discussion, he
had a question that impacted the litigation aspect of this item. He asked if it
would be appropriate to convene into closed session briefly. Mr. Hargreaves
requested that Chairperson Jonathan ask him the question in "side bar" and
then they could decide if they needed to go into closed session. They did so.
Chairperson Jonathan said that it appeared that the issue before the
commission did in fact have a potential impact on the prior litigation that has
occurred and, therefore, the commission would need to go into closed session.
It would only take a brief time, but in consideration of the people present for
other items, the commission would table this item until the end of the agenda
if that was acceptable to the commission. Commission concurred.
E. Case No. GPA 99-2 - CITY OF PALM DESERT, Applicant
Request for approval of a Negative Declaration of Environmental
Impact and a general plan amendment from medium density
residential to office professional for 26 properties located along
the Portola Avenue corridor as illustrated on Exhibit "A".
Mr. Alvarez stated that on July 6, 1999 Planning Commission directed staff
to initiate a general plan amendment along the Portola Corridor which initially
ranged from Fred Waring to Alessandro, or near Alessandro to the south.
There was a modification before the commission now as illustrated on Exhibit
A. Staff analyzed impacts to the Portola Avenue Corridor based on anticipated
widening and existing traffic levels. These properties were designated medium
density residential in the city's general plan. The proposed modified general
plan designation would modify these properties to an office professional
designation in the general plan. Staff analyzed not only the roadway
widening, which was described in detail in the staff report, but they've looked
at the potential impacts to these properties which have become less desirable
as residential uses based on noise, traffic, and now the anticipated widening
of Portola Avenue. Specific impacts to these properties were illustrated in the
staff report. He indicated he would talk about a couple of them. Reduction
in setbacks due to the ultimate 100 foot right-of-way along Portola which
includes a 50 foot half street right-of-way. Increase in noise and the
8
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21, 1999
Chairperson Jonathan asked if the commission would like to continue this matter.
Commissioner Finerty stated that she would like to know what his issues were.
Chairperson Jonathan said they would have to go into closed session to address it.
Mr. Hargreaves said he wasn't terribly concerned if Chairperson Jonathan wanted to
bring up his concern, but he needed to talk with Mr. Phillips about any ramification
to the litigation.
D. Continued Case No. CUP 99-8 - CAESAR'S EMPEROR, Applicant
Request for approval of a conditional use permit for a 10,000
square foot restaurant and, after 9:00 p.m., a bar, lounge and
nightclub with dancing including live music and disc jockeys in
the building located at 72-600 Dinah Shore Drive.
Chairperson Jonathan formally moved back to Public Hearing Item No. D,
Caesar's Emperor. He wanted to express his concern before listening to any
other input. He said he was inclined to decline the application for a CUP on
the basis of the historical experience that has occurred there and the fact that
from his standpoint it was undesirable to have a facility that has armed guards
and metal detectors in our city. He understood that if it ended up in a denial
of the CUP because it was part of a settlement, it might jeopardize the City's
legal position with regards to this litigation. He didn't want to do that if it was
inappropriate. Commissioner Finerty said she said the same thing to Mr. Smith
on the phone. She didn't understand why they even agreed to this because
they certainly didn't want this element in our city and if what it took was
having to get an injunction to set up all of these restrictions in order to make
this successful, she wondered what they were doing this for and asked why
they would even want it in the city. She certainly did not. Chairperson
Jonathan asked if they were committed. Mr. Drell said his recollection of the
process was they went into court to keep them closed. He thought the sense
of the City Attorney was that we might not be successful. When shutting
down a business or preventing someone from operating a business, there was
a great burden placed on the city and he thought the City Attorney's sense
was that that request to the judge was going to be denied. Therefore, in lieu
of that the City said if we were going to approve this, which we were not in
favor of and our position was to keep them closed, then we want all these
conditions imposed. That was what was approved by the court and
subsequent to all those conditions being imposed, there hasn't been a problem
there. He thought that was kind of how it happened. When shutting down
70
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21, 1999
a business, there was a due process of what the business could do to correct
the problem. The Sheriff made a recommendation as to what was necessary
to correct the problem and that was implemented and had been successful.
To a certain degree, he wasn't sure how successful the business was going
to be. The business called Club Aftershock, which was the source of the
problem, was a subcontract. It was an outside group that had an arrangement
with Caesar's Emperor to use their facility one day a week and that
relationship was terminated as part of the deal. Club Aftershock, which was
where all the violence occurred, was no longer associated with the restaurant
any more and didn't have those dance contests that they used to run. The
direct offending organization was no longer associated with the property.
Commissioner Finerty asked if the owners remained the same. Mr. Drell said
the owner of the restaurant remained the same, but Club AfterShock was a
different organization which arranged with the owner to stage this event once
a week. Chairperson Jonathan asked what would happen if staff wasn't
successful in persuading commission that a CUP was appropriate and they
denied it. Mr. Drell said that it would require a finding based on land use, that
this was an inappropriate location for a nightclub. Chairperson Jonathan
suggested doing that. Commissioner Campbell asked where the appropriate
location would be for a nightclub. She thought for a nightclub that would be
the best location. Mr. Drell said if this wasn't one, he couldn't imagine a more
appropriate location given its isolation. Chairperson Jonathan asked if the
commission as a body determined that it wasn't appropriate, what would
happen. Mr. Drell indicated that the decision could be appealed to the City
Council and the Council would then review it. Chairperson Jonathan asked if
Mr. Drell was telling him that if he voted against the CUP, based on whatever
rationale he had, that he wasn't putting the City in jeopardy. Mr. Hargreaves
said that in terms of the possibility of further litigation, what happened in the
litigation was they went in for a temporary restraining order and a preliminary
injunction and at that status of the litigation, the idea of the court was to
maintain the status quo as long as the status quo was somewhat reasonable.
That was why the commission received the agreement to impose the
conditions. It was kind of the least onerous thing they could do to the
property and still bring it within some kind of reasonable compliance. It wasn't
intended to set the status of that particular business forever and that was why
part of the process was to come back for a CUP where they could actually
address all of the land use issues and make some kind of definitive decision.
He talked briefly to Mr. Phillips today about it and his assumption was that
there wouldn't be any problem with the CUP and so they didn't really address
71
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21, 1999
what would happen if the CUP was an issue. He needed to talk with Mr.
Phillips before this decision was made, so he was going to request that the
matter be continued so that he could talk to him, but his sense was that it
would come back to the commission for a land use decision. What happened
before was obviously part of the evidence that would be before the
commission, the problems that the business had and the way the problems
were addressed, but it needed to be addressed as any other CUP application
would be. There needed to be findings within a land use context and there
very well could be an appeal and there could be a legal challenge as to the
sufficiency of the findings. That didn't necessarily have to impact the current
litigation. Commissioner Lopez said that the issue he had, the perception he
had, was that these owners felt like they had a slam dunk because of the legal
aspects of this so they didn't show up. Right or wrong or whatever, for him
he really needed to have these people in front of him and look them in the eye
and understand what they were saying and what their whole aspect of this
club would be because it just bothered him that they could just assume that
this was a slam dunk because of the legal part of it and he was having a real
problem with that. It bothered him that the applicant wasn't here. As a
member of this body, he didn't approve of a business that has that type of an
organization associated with it or metal detectors and he has been to a lot of
places around town and didn't think he'd been to one that had them. He
thought about all the theaters across the street and all those people over there.
Chairperson Jonathan said he wasn't assuming that they had a majority vote
to deny, but he asked why they would need to continue it. Why didn't they
just open up the public testimony, have some discussion, and see what the
commission wanted to do. Commissioner Finerty stated that she would be in
favor of denying it. She just thought that they were stuck because of the
court order. Mr. Drell said that commission would have to tell staff what the
findings were as to a land use position as to why this use was inappropriate.
Chairperson Jonathan asked if the very purpose of the conditional use permit
was so that if there was some kind of egregious violation or problem that the
permit could be revoked. He asked if this was what this was all about. They
didn't have some God given right to operate a nightclub there. They were
operating under a CUP and there have been extreme problems and to him that
justified a revocation of the CUP. Mr. Hargreaves said that typically what
happened was they would call the owner in and discuss the problems, come
up with conditions to alleviate the problems and find out what kind of
response they got. Chairperson Jonathan said they gave the applicant the
opportunity. The meeting was publicly noticed and he had been invited to the
72
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21, 1999
meeting. Mr. Drell said that typically there was a cure provision in any sort of
a violation. He thought they had to give the applicant an opportunity to
correct the situation and that was what they have done. What the
commission was saying was that the conditions themselves were outrageous.
If those conditions were actually necessary to regulate the use, then somehow
there was something inherently wrong with this use. The applicant was
saying that he didn't really need those things. They were imposed by the
court. Chairperson Jonathan pointed out that history had proven that he did
need those conditions. Commissioner Finerty noted that the applicant lied to
them in the beginning. He wasn't truthful about what it was that he was
going to use this facility for. Chairperson Jonathan pointed out that the
applicant could appeal the decision and go to the City Council. Mr. Drell said
staff could prepare a resolution of denial for the next meeting.
Chairperson Jonathan opened the public hearing and asked if the applicant
wished to address the commission. The applicant wasn't present and
Chairperson Jonathan asked if anyone wished to speak in FAVOR or
OPPOSITION to the proposal. There was no one and the public hearing was
closed. Chairperson Jonathan asked for commission comments.
Commissioner Campbell said she Mr. Hargreaves said he wanted some time.
Mr. Hargreaves clarified that he would prefer to have some time and thought
it would be helpful to have the applicant here and actually develop the record
more fully. He wasn't particularly concerned about going forward, particularly
if the Planning Commission felt they had sufficient evidence at this time to
make the determination that needed to be made. If the commission felt that
they have seen enough of this from the record before them, that was fine.
Commissioner Finerty noted that Mr. Hargreaves would have the chance to
develop it if the applicant appealed the decision to City Council. Mr.
Hargreaves concurred. Commission pointed out that it was the applicant's
choice not to be here. Mr. Hargreaves said that before the commission made
a decision, the commission should feel comfortable that the record before
them was developed as fully as it could be to aid them in making a decision.
If that was the way the commission felt tonight, he wasn't going to insist that
they take more evidence, but he would not make the decision tonight with the
thought in mind that they could go to the city council to develop the evidence.
If the commission felt they have seen enough based on what was before them
now to make a decision on this particular use, particularly given the fact that
73
MINUTES
PALM DESERT PLANNING COMMISSION
SEPTEMBER 21, 1999
the applicant wasn't present, he didn't have any particular problem with
moving forward.
Commissioner Campbell said that the commission could still go ahead and
revoke the CUP at the next meeting, even if the applicant was present. To
her, she didn't have any problem.
Chairperson Jonathan asked for a motion. He noted that the reasons for
denying the CUP as stated earlier was the mitigations required were egregious
and unacceptable and make the case that the real problem was incurable or
unacceptable. That use has proven itself to be inappropriate for that location.
Mr. Drell said it was the particular nature of the nightclub use. Commissioner
Campbell felt that was still the best location for a nightclub. Chairperson
Jonathan said they were just speaking to this application. He thought that
reasoning was sufficient and if the city attorney looked it over and thought
otherwise, then he could modify the wording. Commissioner Campbell asked
about a previous case that was on El Paseo. Mr. Smith said the use was
closed because the operator didn't have a permit. Mr. Smith asked if the
commission would like staff to urge the applicant to be here before they act
on the resolution at the next meeting. Chairperson Jonathan and
Commissioner Finerty said no. Chairperson Jonathan felt they were ready to
deny it and asked if staff or the City Attorney wanted to word it in a more
appropriate way. He thought the mitigations called for under the settlement
were unacceptable.
Action:
It was moved by Commissioner Beaty, seconded by Commissioner Finerty,
directing staff to prepare a resolution of denial for adoption at the next
meeting, October 5, 1999. Motion carried 5-0.
IX. MISCELLANEOUS
Chairperson Jonathan noted that the commission was requested to participate
in a city tour. There was a choice of November 5, 1 2, or 19 which were all
Fridays. The time would be approximately 1 1 :00 a.m. to 2:00 p.m., including
lunch. All commissioners were available for all dates, so the date would be up
to the council.
74
MEMORANDUM ATTORNEY-CLIENT
PRIVILEGED
To: Honorable Chairman and Members of the Planning Commission, an?R F C F I V F D
Philip Drell, Planning Director, City of Palm Desert
FROM: Douglas S. Phillips, Deputy City Attorney'&P NOV i 0 1999
DATE: November 8, 1999 COMMUNITY DEVELOPMENT DEPARTMENT
CITY OF PALM DESERT
RE: Conditions of Denial; CUP99-8
I have reviewed the Minutes of the Planning Commission of October 5, 1999, and I
believe the attached findings are consistent with the Planning Commission's decision.
1. The business has operated for some time pursuant to seven conditions
imposed by the Superior Court under two temporary restraining
orders and a preliminary injunction. While these conditions have
reduced the public safety problems which were prevalent, they are so
onerous as to make the business operation undesirable and
incompatible with the city's commercial districts.
2. At the Planning Commission meeting of October 5, 1999, the
applicant advised the Planning Commission that ifthe seven conditions
which require, among other things, two armed deputy sheriff on
patrol,licensed uniformed security personnel and metal detectors was
removed,the violent conditions could recur. As a result,the proposed
location of the business that would be allowed as a conditional use
and the conditions under which the business use will be operated or
maintained will in fact be detrimental to the public health, safety or
welfare and will be materially injurious to properties or improvements
in the vicinity. Thus, the required finding under Palm Desert
Municipal Code § 25.72.070(b) cannot be made.
3. The proposed business allowed pursuant to the conditional use permit
does not comply with the goals, objectives, and policies of the city's
general plan; the City of Palm Desert does not and should not allow
or encourage the type of activities that have taken place at this
proposed facility. The Commission is concerned for the safety of the
citizens of Palm Desert. When a use requires two sheriffs, metal
detectors, and security personnel on staff to operate an establishment
in the City of Palm Desert,the proposed use does not comply with the
RMPUB\DSP\158450
goals objectives and policies of the city's general plan. Thus, the
finding required under Palm Desert Municipal Code § 25.72.070(d)
cannot be made.
If the applicant appeals the Planning Commission's findings and decision to the City Council and if
the findings and decision are upheld by the Council, the applicant may bring an action in Superior
Court. If that happenes,the findings and decision will be reviewed by the Superior Court under CCP
§ 1094.5. In order to be upheld by the court on review, the Resolution denying the conditional use
permit must be supported by findings and the findings must be supported by the evidence. Topanga
Association for a Scenic Community v. County of Los Angeles(1974) 11 Ca1.3d 506, 514-515. The
agency which renders the challenged decision must set forth findings to bridge the analytic gap
between the raw evidence and ultimate decision or order.
The three findings in this memorandum accurately trace the analytic route that the
Planning Commission traveled from evidence to action; if the Planning Commission ultimately
determines to deny this conditional use permit I recommend the three findings be made.'
DSP:slz
Attachments
'This document is created by the City of Palm Desert for its own use in anticipation of
litigation. This is not a public record subject to disclosure. Government Code § 6254(b); Roberts
v. City of Palmdale (1993) 5 Cal.4th 363, 372-373.
RMPUB\DSP\158450 - 2 -
LAW OFFICES OF
BEST BEST & KRIEGER
December 16, 1999
MEMORANDUM
?" F S FJ V FJ)
TO: Phil Drell, City of Palm Desert 1 7 1999
Dave Erwin, City Attorney
EEC'.LOPMENT DEPARTMENT
Robert Hargreaves, Assistant City Attorney CITY Cyr PALM DESERT
FROM: Douglas S. Phillip?
RE: Appeal to City Council - Caesar's Emporer Application for CUP Denied by
Planning Commission
Gentlemen,
Enclosed is the appeal filed by Chuck Koller. The appeal appears to be timely and is
reasonably in compliance with the City Code. I have called Tonya and she is alerting Phil and putting
the matter on the agenda for the next City Council meeting for public hearing.
DSP:kc
Enclosure
RMPUB\DSPU60086
12-13-1999 03:49PM FROM KOLLER LAW OFFICE TO 9340E698 P.22
LAB F O FICES OF
Charles E. Koller CHARLES E. KOLLER
Timothy L. Ewanyshyn
225 S. Civic, Suite 1-2
Palm Springs,n s California 92264
(760)864-1838
' ' FAX(760)864-1841
December 13, 1999
VIA FACSIMILE / 340-6698
Douglas S. Phillips, Esq.
Best Best & Krieger LLP
39000 Bob Hope Dr., Ste. 312
Rancho Mirage, CA 92270
Re: Caesar's Emperor
Dear Doug:
This letter is to notify you that our client desires to appeal the decision of the
Planning Commission of the City of Palm Desert denying its application for a
Conditiu fal Use Permit. The Planning Commission arrived at its decision by
considering improper and inappropriate information by attaching negative weight to
conditions that are beneficial, not detrimental, to the City, and the denial of the C.U.P.
is a manifestation of discriminatory enforcement and application of minicipal
ordinances, codes, and regulations.
If you have any
y questions, please do not hesitate to call or write.
Very truly yours,
LAW OFFICES OF CHARLES E. KOLLER
.1
CHARLES E. KOLLER
CEK/dhv
f
MINUTES
PALM DESERT PLANNING COMMISSION
NOVEMBER 2, 1999
VI. ORAL COMMUNICATIONS
None.
VII. CONSENT CALENDAR
A. Case No. PMW 99-6 - PEARL DEVELOPMENT LTD, Applicant
Request for approval of a parcel map waiver to adjust lot lines
between two lots north of Fred Waring Drive, west of Fairhaven.
Action:
It was moved by Commissioner Campbell, seconded by Commissioner Beaty,
approving the Consent Calendar by minute motion. Motion carried 5-0.
VIII. PUBLIC HEARINGS
Anyone who challenges any hearing matter in court may be limited to raising
only those issues he/she or someone else raised at the public hearing described
herein, or in written correspondence delivered to the Planning Commission at,
or prior to, the public hearing.
A. Case No. CUP 99-8 - CAESAR'S EMPEROR, Applicant
Request for approval of a conditional use permit for a 10,000
square foot restaurant and, after 9:00 p.m., a bar, lounge and
nightclub with dancing including live music and disc jockeys in
the building located at 72-600 Dinah Shore Drive.
Mr. Drell informed commission that staff had been contacted by the
applicant's attorney who stated that the applicant's Father was seriously ill
and he was not able to attend this meeting and was therefore requesting a
continuance for two weeks.
Commissioner Finerty requested clarification on the age. If it was 18 or 21
and if the commission had the authority to go to age 21 in condition number
three of the staff report. Mr. Drell stated that theoretically the commission
could impose any condition. Apparently Caesar's Emperor didn't have a hard
liquor license. They served beer and wine which allowed age 18 not 21 . They
2
MINUTES
PALM DESERT PLANNING COMMISSION
NOVEMBER 2, 1999
weren't required by ABC to be 21 , but as a commission he thought they could
apply conditions in excess, technically, of the conditions supplied by the court.
Commissioner Finerty asked if they could determine if they in fact serve pizza
until 2:00 a.m. Mr. Drell said that was a question that would have to be asked
of the applicant. Mr. Hargreaves said that on the age issue there would be an
issue of preemption of the State law that he would have to look into. He
asked Mr. Drell if the agreement was that it would be age 18 or 21 . Mr. Drell
said the agreement turned out to be 18 and the confusion had to do with
whether he had a full liquor license and when they realized he didn't, it got
changed to 18 and it looked like 28. In talking to Doug Phillips, he said the
proper number was 18, at least that was the understanding amongst the
parties in the court.
Chairperson Jonathan opened the public hearing and asked if anyone wished
to speak in FAVOR or OPPOSITION. There was no one and the public hearing
was left open. Chairperson Jonathan asked for a motion.
Action:
It was moved by Commissioner Beaty, seconded by Commissioner Campbell,
continuing CUP 99-8 to November 16, 1999 by minute motion. Motion
carried 5-0.
B. Case No. CUP 99-14 - RV'S OF MERRITT, Applicant
Request for approval of a conditional use permit to allow outdoor
sales and display of recreational vehicles within an existing
shopping center parking lot located at 72-300 Dinah Shore.
Mr. Alvarez stated that he included Exhibit A in the commission staff reports
while illustrated the proposed location for RV's of Merritt's request to display
and sell recreational vehicles in the parking lot area directly north of Petsmart.
He pointed out that it was separated by the Costco shopping area and parking
lot and the former Home Base store and parking lot area by the main drive
access coming off from Dinah Shore. The applicant was requesting approval
to conduct outdoor sales of 25 vehicles. The area had 72 parking spaces
which throughout the week of October 25 were completely vacant on all site
visits. The hours of operation would be 9:00 a.m. to 5:30 p.m. seven days
a week. As background he explained that the property is zoned PC-3 which
would allow outdoor sales with approval of a conditional use permit. This
3
MINUTES
PALM DESERT PLANNING COMMISSION
NOVEMBER 16, 1999
VI. ORAL COMMUNICATIONS
None.
VII. CONSENT CALENDAR
None.
VIII. PUBLIC HEARINGS
Anyone who cha►lenges any hearing matter in court may be limited to raising
only those issues he/she or someone else raised at the public hearing described
herein, or in written correspondence delivered to the Planning Commission at,
or prior to, the public hearing.
A. Case No. CUP 99-8 - CAESAR'S EMPEROR, Applicant
(Continued from November 2, 1999)
Request for approval of a conditional use permit for a 10,000
square foot restaurant and, after 9:00 p.m., a bar, lounge and
nightclub with dancing including live music and disc jockeys in
the building located at 72-600 Dinah Shore Drive.
Mr. Drell informed commission that there was a request from the applicant's
attorney who fell ill today and requested a postponement to December 7,
1999, the next meeting. Mr. Drell said there wasn't a problem with the
continuance from staff's point of view and recommended the continuance.
Chairperson Jonathan asked if any commission members would be absent.
Everyone indicated they would be there. Commissioner Beaty asked staff how
many times this item could be continued. Mr. Drell said he would expect that
this was the last time. Commissioner Beaty felt that needed to be
communicated to the applicant. If Mr. Koller could not be present, he needed
to send a representative. Mr. Drell said he understood. Chairperson Jonathan
said it appeared that all commissioners were expected to be at the meeting.
Chairperson Jonathan opened the public hearing and asked if anyone wished
to speak in FAVOR or OPPOSITION. There was no one. Chairperson Jonathan
left the public hearing open and asked for a motion.
2
MINUTES
PALM DESERT PLANNING COMMISSION
NOVEMBER 16, 1999
Action:
It was moved by Commissioner Beaty, seconded by Commissioner Campbell,
continuing CUP 99-8 to December 7, 1999 by minute motion. Motion carried
5-0.
B. Case Nos. GPA 99-3, C/Z 99-2, PP/CUP 99-7 and DA 99-3 - PEARL
INDUSTRIES INC., Applicant
(Continued from November 2, 1999)
Request for approval of a general plan amendment to add senior
overlay, approval of a change of zone from PR-7 (planned
residential 7 units per acre) to PR-7 S.O. (planned residential
senior overlay), precise plan of design/conditional use permit
(including a height exception for the three (3) story portion,
development agreement and a negative declaration of
environmental impact as it relates to a proposed 250 unit
continuing care retirement community and a community center
building on 10.3 acres north of Fairhaven Drive south of
Parkview Drive at 72-755 Parkview Drive.
Mr. Smith stated that the acreage in question is 10.3 acres. He indicated that
the commission received two reports dated November 16, 1999. One as
recently as this morning and the commission received a revised resolution and
draft development in the commission packets. As well, they received all of the
material they received previously and all of any additional written
correspondence previously received. Mr. Smith informed commission that it
was not his intention to go over the entire project again. He did not that they
were now dealing with a 250-unit continuing care facility on 10.3 acres. The
most recent renderings and elevations of the buildings were on display. He
pointed out the rendering which was presented to the Architectural Review
Commission last Tuesday. At that time ARC granted preliminary approval
subject to the finished elevations reflecting the detail shown in that rendering.
When it was here on November 2, the commission continued the matter
because the neighbors asked for additional time to review the revised proposal.
He stated that the revised included the additional detailing on the rendering.
It also included deletion of surface parking in the area along Fairhaven Drive,
where 32 spaces were removed in favor of landscaping, and at the entry from
Parkview Drive the most recent plan deleted 31 parking spaces and replaced
that area with landscape area. The landscape areas along Fairhaven and
3