Circle K Stores v. City of
Buenaventura
Filed 7/3/13 Circle K Stores v. City of San Buenaventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
CIRCLE K STORES, INC.,
Plaintiff and
Appellant,
v.
CITY OF SAN BUENAVENTURA,
Defendant and
Respondent.
2d Civil No.
B243543
(Super. Ct. No.
56-2011-00397075-
CU-WM-VTA)
(Ventura
County)
Circle K Stores, Inc.
(Circle K) appeals the denial of its petition for a
Proc., § 1094.5) seeking to compel the City of San
Buenaventura (the City) to set aside its revocation of
a permit for the sale of alcoholic beverages.
Circle K contends the revocation was in violation of the City's
municipal code and was based on incorrect legal advice given by City staff. We affirm.
FACTS AND PROCEDURAL HISTORY
Circle K owns and
operates four convenience stores in the City, one of which is located at 3506
East Main Street (the store). Since at least July of 1994, Circle K has
been licensed by the California Department of Alcoholic Beverage Control (ABC)
to sell alcoholic beverages at the store.
In January of 2006, the City issued Circle K a "deemed
approved" permit (permit) for the sale of alcoholic beverages. The permit was renewed every year until the
subject revocation in May of 2011.
The permit was issued by
operation of law pursuant to Chapter 24.460 of the San Buenaventura Municipal
Code (SBMC), which was enacted in October 2005.
The law provides that all establishments already operating under a valid
ABC license were entitled to a conditional use permit allowing them to continue
selling alcoholic beverages, subject to certain standards. (SBMC, § 24.460.310.)
establishment operate in strict compliance with the Alcoholic Beverage Control
Act (ABCA) (Bus. & Prof. Code, § 23000 et seq.), and correct any
conditions deemed to be nuisances.
(§ 24.460.410.) The
ordinance also provides that the permit may be revoked or modified for sufficient
cause as provided in section 24.570.100.
On March 11, 2005, July 6, 2007, and May
6, 2010, the Ventura Police Department conducted minor decoy
operations at the store in conjunction with City Alcohol Enforcement Officer
Derek Donswyk. On each occasion, a
Circle K employee sold beer to the minor decoy.
All three employees were cited and later convicted of selling alcohol to
a minor (Bus. & Prof. Code, § 25658, subd. (a).) Officer Donswyk left his business card with
Circle K's store manager after each incident and urged management to contact
him to discuss the actions it might take to avoid any further violations. No one from Circle K ever contacted the
officer.
On July 21, 2010, the City sent a memorandum letter
notifying Circle K of its intent to revoke the permit based on the minor decoy
operations. The letter notified Circle K
that its "deemed approved status" would be reviewed by the City's
Planning Commission at a public hearing to be held in City Council Chambers on August 31, 2010. The letter further indicated that Circle K's
deemed approved status could be revoked at that time, which would require
Circle K to apply for a new conditional use permit through the planning
commission in order to continue selling alcoholic beverages. Circle K was also notified it could instead
apply for a conditional use permit through the City's planning division.
In the weeks prior to
the scheduled hearing, the parties engaged in extensive written and oral
communication regarding a possible modification of the permit in lieu of
revocation. The City proposed adding
conditions that Circle K refrain from offering any single sales of beer or malt
liquor, place locking devices on the store's beer coolers, and install digital
security cameras.
title="">[2] The City also proposed a requirement that all
store employees undergo ABC training.
Circle K offered a counterproposal of conditions that would apply to all
four of its stores in Ventura. Those conditions did not, however, include
any provisions that Circle K refrain from offering single sales of beer or
installing locks on the store's beer coolers.
When the matter was
called for hearing, a 60-day continuance was granted at the parties' request
based on their representation that they were working toward a resolution. During the continued negotiations, the City informed
Circle K's attorney that City staff could only support a modification of the
permit in lieu of revocation if the conditions included a prohibition on single
sales of both beer and malt liquor and the installation of locking devices on
all beer cooler doors. Circle K offered
that it was prepared to accept the condition that it place locking devices on
the beer cooler doors if the City agreed to accept the less-restrictive
condition that Circle K merely refrain from selling single cans of beer in
containers of 16 ounces or less that are normally sold in multi-package
containers.
There were no further
communications between the parties prior to the continued planning commission
hearing. At that hearing, the parties
reported that they had been unable to agree on a modification of the permit,
specifically with regard to the single sales of beer. In response to questioning from the
commissioners, Officer Donswyk and the City attorney stated that any conditions
included in a modification of the permit would only be enforceable through a
subsequent revocation proceeding.
The planning commission
ultimately adopted a resolution revoking Circle K's permit. The planning commission found that Circle K
had failed to operate the store in strict compliance with the ABCA by selling
alcohol to minors in violation of section 25658, subdivision (a) of the
Business and Professions Code. The
planning commission further found that "Circle K requires a
disproportionate amount of police resources in order to mitigate incidents
requiring a law enforcement response -- over the 12 month period ending July,
2010, the Ventura Police Department responded to 48 calls for service to Circle
K; of those 48 calls, 19 were thefts of beer ('beer runs') and 29 were
disturbances involving intoxicated subjects, panhandlers and fights. This is detrimental to the public safety and
constitutes a nuisance."
In its appeal to the
City Council, Circle K contended among other things that the City and planning
commission had acted in violation of Circle K's due process rights. Circle K asked the City Council to reverse the
decision and permit modification of the permit with several additional
conditions, none of which would have required Circle K to refrain from selling
single cans of beer in any size or to keep the beer cooler doors locked at all
times. Prior to the scheduled
evidentiary hearing, Circle K offered that it was willing to lock the store's
beer coolers from 2:00 a.m. to 6:00 a.m.
Following an evidentiary
hearing, the City Council adopted a resolution revoking the permit. In independently deciding whether to revoke
the permit rather than modify it, the City Council found "there is little
factual basis for believing Circle K's representations that it will change its
business practices to eliminate the sale of alcohol to minors, and the City
Council expressly finds that Circle K's testimony and evidence in this regard
are not credible. Circle K has
repeatedly demonstrated that it is neither willing nor capable of responsibly
managing alcohol sales at its 3506 E. Main Street location. This track record provides ample factual
support for the City Council's decision to revoke rather than modify the
deemed-approved permit. The City Council
recognizes that Circle K may ultimately develop and propose management systems
to address the problems specific to this location, and accordingly this finding
and conclusion is without prejudice to Circle K's ability to apply for an
appropriately conditioned new alcoholic beverage establishment conditional use
permit pursuant to the City's municipal code."
In rejecting Circle K's
claim that it was denied a fair hearing, the City Council found no merit in the
argument that the City was required to issue a "notice of violation"
as referenced in section 24.460.660. The
City Council further found that Circle K was in any event provided sufficient
notice of the revocation proceedings.
The City Council also rejected the claim that the planning commission's
decision was based on erroneous legal advice that the permit could not be
modified because the City attorney corrected planning staff's remarks to that
effect and "any prejudice was mitigated by virtue of the appeal to the
City Council, and the clear acknowledgment by the City Council of its authority
to modify the deemed approved permit should it so desire."
Circle K then filed a
petition for a writ of mandate under Code of Civil Procedure section
1094.5. Circle K also applied for a stay
to prevent the City from enforcing the resolution to revoke the permit. Following a hearing, the application was
denied on the court's findings that (1) any further stay of the resolution
would be against the public interest; and (2) Circle K had failed to establish
a probability of prevailing on the merits of its writ petition.
After Circle K filed an
amended petition, the court proceeded to hear the matter on the merits based on
the parties' briefing and the administrative record. In its ruling, the court declined to decide
whether the City was required to issue a formal "notice of violation"
because "[e]ven accepting Circle K's interpretation, the court finds that
the police department's actions substantially complied with the requirements of
SBMC section 24.460.640."
In rejecting Circle K's
claim that it did not receive a fair hearing because City staff gave the
planning commission incorrect legal
advice regarding the enforceability of the conditions of a modified permit,
the court reasoned: "While it may
be true that an erroneous interpretation of the ordinance was advanced on
behalf of the City at the hearing before the Planning Commission, Circle K
appealed the Planning Commission's determination to the City Council. The City Council's determination superceded [
misled. Circle K alerted the City
Council to its objection to the disputed advice, and the City Council
acknowledged Circle K's contention in its resolution revoking the use permit. .
. . The resolution contains the City
Council's 'clear acknowledgment . . . of its authority to modify the deemed
approved permit should it so desire.'
[Citation.] However, it did not. It expressly considered whether a
modification of the permit terms was warranted, and found it was not because
Circle K had engaged in the illegal sale of an alcoholic beverage to an
underage person and, further, that Circle K had a 'history of repeat violations
and the maintenance of nuisance conditions.'
[Citation.] Thus, the City
Council conducted its de novo review
with a full awareness of the bad advice given to the Planning Commission and a
correct understanding of its authority."
The court proceeded to deny the petition for a writ of mandate, and
judgment was entered accordingly.
DISCUSSION
Circle K contends its
petition for a writ of mandate should have been granted because the City
revoked its permit in violation of Circle K's rights to due process and a fair
hearing. Circle K claims the City
violated its own municipal code by failing to issue a "notice of
violation" under section 24.460.660.
Circle K further argues it was denied a fair hearing because the
revocation was based on erroneous legal advice given by City staff. Neither claim has merit.
"A trial court may
issue a writ of administrative mandate where an agency has (1) acted in excess
of its jurisdiction, (2) deprived the petitioner of a fair hearing, or (3)
committed a prejudicial abuse of discretion.
(Code Civ. Proc., § 1094.5, subd. (b).) 'Abuse of discretion is established if the
[agency] has not proceeded in a manner required by law, the order or decision
is not supported by the findings, or the findings are not supported by the
evidence.' (Ibid.)" (
Cal.App.4th 1152, 1169 (Clark).)
The question whether
Circle K was deprived of a fair hearing "is one of law, which we review de
novo: '"There might be foundational
matters of fact with respect to which the trial court's findings would be
conclusive on appeal if supported by substantial evidence. However, the ultimate questions, whether the
agency's decision was . . . unlawful or procedurally unfair, are essentially
questions of law. With respect to these
questions the trial and appellate courts perform essentially the same function,
and the conclusions of the trial court are not conclusive on appeal." . .
. The review of procedural issues, whether presented in mandamus proceedings
brought under Code of Civil Procedure section 1085 or 1094.5, should be the
same. That is, foundational factual
findings must be sustained if supported by substantial evidence; however, the
ultimate determination of whether the administrative proceedings were
fundamentally fair is a question of law to be decided on appeal.' [Citations.]
The trial court's 'fair hearing finding was a conclusion of law, not a
finding of fact, and requires a de novo review of the administrative
record.' [Citation.]" (Clark,
supra, 48 Cal.App.4th at pp. 1169-1170, fn. omitted.)
Circle K asserts that
the City was required to issue a "notice of violation" under section
24.460.660,
title="">[3] prior to initiating revocation
proceedings. The City Council concluded
that section 24.460.660 does not apply where, as here, the City is
contemplating revocation of a permit to sell alcoholic beverages under section
24.460.640. Rather, such actions are
governed by section 24.570.100, which provides that a permit may be revoked
upon a finding (1) "That one or more of the conditions imposed on the
granting of such permit have not been complied with;" or (2) "That
the use or development for which the permit was granted is being conducted,
operated, or maintained in a manner detrimental to the public health or safety
or in a manner that otherwise constitutes a nuisance." The City Council further found that Circle K
had in any event been provided sufficient notice of the revocation proceedings.
There was no error in
these findings. We must give
"considerable deference" to the City's interpretation of its own
ordinances, particularly those involving issues of notice. (TG
Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1371;
Environmental Development v. City of San Diego (2010) 184 Cal.App.4th 1032,
1047.) Even if the City was required to
issue a "notice of violation" under section 24.460.660, we agree with
the trial court that the City effectively provided such notice here. Circle K was informed that it had violated
the conditions of its permit by selling alcohol to a minor. Moreover, Circle K was offered a solution
that would have avoided revocation proceedings altogether. Circle K, however, chose to reject that
solution. Under the circumstances,
Circle K cannot be heard to complain that it did not receive a formal
"notice of violation" under section 24.460.660.
Circle K also fails to
demonstrate the decision to revoke the permit was based on an error of
law. Even if City staff erred in
advising the planning commission that the conditions of a modified permit would
be unenforceable absent new revocation proceedings, the planning commission's
decision to revoke the permit rather than modify it was superseded by the City
Council's de novo review.
(§ 24.565.060.) Whether the
City Council relied on the same erroneous advice is of no moment because it is
apparent that the advice played no part in its decision to revoke rather than
modify the permit. Rather, the City
Council expressly relied on a finding that Circle K was "neither willing
nor
capable of responsibly managing alcohol sales at its 3506 E. Main Street
location." Circle K's claim that it
was denied a fair hearing accordingly
fails.
The judgment is
affirmed. Costs are awarded to the City.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Mark
S. Borrell, Judge
Superior
Court County of Ventura
______________________________
Solomon, Saltsman &
Jamieson, R. Bruce Evans, Ryan M. Kroll, D. Andrew Quigley for Appellant.
Ariel Pierre Calonne,
City Attorney, Jennifer Lee, Assistant City Attorney, for Respondent.
name="_ftn1" title="">[1] All further undesignated code references are
to the SBMC.
were prompted by evidence indicating that a highly disproportionate amount of
police resources were expended in responding to service calls from the store
regarding thefts of beer and disturbances involving intoxicated
individuals.
