UPDATE: Hearing on long-awaited alcohol ordinance postponed

A notice went out that the Planning Commission will not consider Thursday a draft ordinance that could potentially give the city a new legal mechanism to close down any bar causing a nuisance and threatening public health and safety.

The commission was scheduled to consider proposed amendments and additions to Walnut Creek’s municipal code at its regular meeting. The notice said consideration of this matter has been continued to April 12, due to a technical error in the hearing notice. 

The city has been mulling some kind of move to enhance its tools to address its problem bars for several years. A series of weekend fights in and around bars in late 2011 and early 2012 prompted the City Council to ask staff to speed up work on the ordinance, a city staff report says.

The draft ordinance provides a legal structure requiring all businesses serving alcohol to adhere to performance standards. If a bar keeps out of trouble, it shouldn’t have any trouble staying open. City Attorney Bryan Wenter has said previously that the ordinance would not roll back anyone’s hours of alcohol service, reported Walnut Creek Patch. 

But if Walnut Creek police have to repeatedly go to a certain business to break up fights, arrest drug dealers, respond to noise complaints or to drunks urinating in public, the city can issue a notice, telling the bar to clean up its act, according to a staff report for Thursday’s meeting.  If the bar fails, the city can order the bar to cease operations.

Up until now, the city’s authority over alcohol-dispensing businesses has been uneven, much to everyone’s frustration, including bar owners. 

The challenge has in part come from a framework established by the state’s constitution; it gives the state’s Alcoholic Beverage Control authority over businesses that sell alcohol. This agency is responsible for issuing, enforcing and revoking liquor licenses.

Since 2003, Walnut Creek, like other California municipalities, has used land use laws to assert some control over alcohol sales. In Walnut Creek, the city can regulate ancillary operations of bars and restaurants, such as closing times. However, these land-use regulations, in the form of conditional use permits, only applied to businesses established after these regulations went into effect. Businesses open prior to 2003 have been able to operate without a conditional use permit and stay open as long as state ABC regulations allow, which is 2 a.m.

There are currently 103 alcohol-serving establishments in Walnut Creek — 57 that operate without a conditional use permit.

Bar owners saddled with  the conditional use permit provisions have decried the uneven “playing field,” especially when they have asked the city for permission to extend their hours to match “grandfathered” competitors that stay open until 2 a.m

Since 2009, a subcommittee, made up of city representatives, bar owners and other “stakeholders” have been studying existing policies, while problems associated with the city’s nightlife have increased.

The proposed ordinance creates a new “deemed approved status” that applies to all alcohol-serving establishments. It says s businesses can maintain this status so long as it doesn’t allow activities that jeopardize health and safety. Such activities also include gambling, prostitution, loitering, illegal parking, traffic problems and anything the prompts police to detain or arrest people.

To go after a business, the city must compile a report, noting violations, then serve a notice that gives the business a chance to take corrective actions. There is an administrative process for a business to appeal a notice or order to close.

Bar owners have threatened to file a lawsuit if the ordinance threatens their legal rights. Wenter told Walnut Creek Patch that the city is on “strong legal grounds” in setting up nuisance abatement regulations. The city aimed to craft an ordinance with language similar to nuisance laws in Rohnert Park, Santa Rosa and Santa Cruz. The city staff report indicates that California courts have upheld the deemed approved status approach of imposing nuisance-based performances on grandfathered establishments.

Thursday’s meeting takes place 7 p.m. at City Hall.

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