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Home My WebLink About2008-09-03; Planning Commission; ; PCD 08-02 - NEWPORT AUDIOLOGY CENTERSThe City of Carlsbad Planning Department A REPORT TO THE PLANNING COMMISSION P.C. AGENDA OF: September 3, 2008 ItemNo. G) Application complete date: NIA Project Planner: Deborah Milam Project Engineer: N/ A SUBJECT: PCD 08-02 -NEWPORT AUDIOLOGY CENTERS -Request denial of the appeal of the Planning Director's determination that the office of Newport Audiology Centers located at 2385 Camino Vida Roble within Local Facilities Management Zone 5 is not a permitted use in the Planned Industrial (P-M) Zone. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution No. 6460, DENYING the appeal of Newport Audiology Centers and upholding the decision of the Planning Director that the business is not a permitted use in the Planned Industrial (P-M) Zone based on the findings contained therein. II. INTRODUCTION Newport Audiology Centers ("Newport") has operated illegally in Carlsbad at its current location for over a year without the benefit of a business license. In March, 2007 and again in March, 2008, the Planning Director recommended denial of a business license renewal for the relocation of Newport from the Industrial (M) zone to the Planned Industrial (P-M) zone of the city to the Finance Department. The recommendations for denial were based on the finding that medical uses serving the general public are not permitted by the Carlsbad Municipal Code in the P-M Zone. On April 8, 2008, Newport appealed the Planning Director's decision to the Planning Commission in the manner required by Section 21.54.140 of the Carlsbad Municipal Code. The purpose of this action is to consider the appeal of the Planning Director's determination of incompatibility with the P-M Zone and recommendation of denial of Newport's business license renewal for the relocation of the business. The Planning Commission Determination is a vehicle to carry forward matters which are independent of planning applications and projects to the Planning Commission. III. PROJECT DESCRIPTION AND BACKGROUND Newport provides consultations for those suffering from hearing loss. It has locations nationwide. In 1997, Newport opened an audiology clinic in Carlsbad at an address in the Industrial (M) zone. The audiology clinic was permitted in the M zone as an allowed medical use. In 2007, Newport relocated the clinic to 2385 Camino Vida Roble in the Planned Industrial (P-M) zone and applied for a change of address for the business license. The Planning Director determined that the business was neither a primary nor an ancillary permitted use in the P-M zone and recommended denial of the business license application to the Finance Department. PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Pae 2 On March 28, 2007, Newport was notified of this denial with a letter. from the Finance Department. The business owners received the letter and responded in a letter to the Planning Director requesting a reconsideration of the incompatibility determination. Neither the Planning Director's determination of incompatibility with the permitted uses in the P-M Zone nor the Finance Department's resulting determination to deny the business license was rescinded. In spite of this denial, Newport continued to conduct business at the Camino Vida Roble location over the following year. The Newport owners again applied for a business license renewal in March of 2008. The Planning Department sent a letter confirming the previous decision of the Planning Director that the Audiology Center was still not a permitted use in the P-M zone and therefore the Finance Department still denied the business license based on his recommendation. Accordingly, the Finance Department requested the opening of a code violation case against Newport for operating a business without a valid business license. On March 31, 2008 the Planning Department again informed Newport in writing of the Planning Director's continued determination of Newport's incompatibility with the permitted uses in the P-M Zone and of their right to appeal this decision within ten days. Newport appealed the decision to the Planning Commission on April 8, 2008. Newport's representative Scott Barber submitted two additional letters containing supplementary information for the appeal after that date. All correspondence between Newport and the City is attached. IV. ANALYSIS Planned Industrial (P-M) Zone Compatibility The intent and purpose of the P-M Zone is as follows: "businesses and light industries engaged primarily in research and/or testing, compatible light manufacturing, business and professional offices when engaged in activities associated with corporate offices or in activities whose primary purpose is not to cater directly to the general public, and certain commercial uses which cater to and are ancillary to the uses allowed in this zone." In addition, it permits businesses engaged in "industrial medicine (workers comp.)" with the further restrictions that they "are not retail in nature, do not cater to the general public, and do not generate walk-in or drive-in traffic, and are incidental to the industrial uses in the vicinity." These further restrictions are placed on the majority of permitted uses in the P-M zone (Table A of Section 21.34.020, attached) and are also listed in the Zone's intent and purpose (Section 21.34.010 (1), also attached). On their national website, the Newport Audiology Centers are described as a group of hearing healthcare centers that provide audiological services to individuals with hearing loss. Newport's website states that there are "over 100 company-owned offices with uniform services" including "hearing aid sales and services." One of the services offered at the Newport clinic in Carlsbad is a worker's compensation program. As stated in Newport's letter from June 3, 2008, worker's compensation comprises PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Pae 3 only an estimated 5-10% and not a majority of the services provided. The remaining 90-95% of their business is not limited to work-related injury. Permitted medical uses in the P-M Zone are restricted to "industrial medicine." Newport does not meet the definition of industrial medicine/worker's compensation; therefore Newport at its current location cannot be considered to meet the intent of the "industrial medicine''. use category permitted in the P-M zone. The business also sells hearing instruments including hearing aids. The letter from Newport dated May 8, 2008 asserts that "Newport is not retail in nature," stating that "Newport maintains no merchandise on hand." However, Newport is considered a retail use because of the noted services available for sale including appointments for fitting hearing aids, "counseling regarding adaptation to the instrument", "monitoring of the patient's progress in adapting to the instrument through check-ups," and other related services. Newport's website states that there is "no prior authorization required" of customers. Although the number of office visits is relatively low ( clients are referred by doctors and seen on an appointment only basis), Newport is clearly catering directly to the general public. Other services offered include a community outreach department whose goal is to "increase [the] health plan's visibility in the community." A worker's compensation clinic admits patients who are injured on the job. Newport does not keep record of where their customers receive damage to their hearing. Because there are no means to geographically restrict Newport's customer base through a business license, there is no way to ensure that Newport's medical services are incidental to the surrounding industrial uses. Furthermore, while Newport provides services for workers in the P-M zone, the attached letters from Newport indicate they also serve clients residing or working beyond the City's industrial core. As indicated by the restrictions noted above, businesses and professional offices which generate customers from outside the industrial parks have historically been prohibited by the City in the P-M. zone. This is particularly true for "medical" uses. Newport states that its consultations are by appointment only, which does not eliminate the possibility that the majority of its customers may live or work outside of the surrounding area and drive to their appointments. When customers drive to their appointments, they create "drive-in traffic," which is not an intended consequence of businesses and uses in the P-M Zone. Accordingly, Newport is not a permitted use in the P-M zone. V. ENVIRONMENTAL REVIEW This project is exempt from CEQA per Section 15321 of CEQA exemptions (Class 21) which exempts the actions by regulatory agencies to enforce or revoke a lease, permit, license or the enforcement of a law, general rule standard or objective administered or adopted by the regulatory agency. ATTACHMENTS: 1. Planning Commission Resolution No. 6460 2. Location Map 3. March 28, 2007, copy of letter from Finance Department to Newport 4. April 5, 2007, letter from Newport 5. March 17, 2008, letter from Planning Department to Newport PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Page 4 6. March 31, 2008, letter from Planning Department to Newport 7. April 8, 2008, letter from Newport 8. May 8, 2008, letter from Newport 9. June 3, 2008, letter from Newport 10. Relevant sections of Carlsbad Municipal Code Chapter 21.34, P-M Planned Industrial Zone SITE MAP ;/;.""' <ii , '.Po \;~ '0 't l ,\ ) --' • N NOT TO SCALE Newport Audiology Centers PCD 08-02 ;.. March 28, 2007 NEWPORT AUDIOLOGY CENTERS 5970 GREENWOOD PLAZA BLVD STE 210 GREENWOOD VILLAGE CO 80111-4713 COPY BUSINESS LICENSE APPLICATION All new businesses must be approved by our Buildong, Fiire, Planning and Housing & Redevelopment Departments before a license may be issued. Your application has been denied by the following department(s). X Building Department Fire Department Planning Department 602-2700 602-4660 602-4610 Greg Fisher Housing & Redevelopment 434-2810 Enclosed is a _copy of department's comments. To resolv,e this matter, please contact the department(s) indicated above. Sincerely, Della Russell Business License Representative Encl. CITY OF CARLSBAD Administrative Pennit ~~; N~.---• rco· ot: b·t • • • • • • • •••••••••• • April 5, 2007 To: Don Neu Planning Director 1635 Faraday Avenue Carlsbad, CA 92008 From: Laura A Smallen Newport Audiology Centers 5970 Greenwood Plaza Blvd #210 Greenwood Village, CO 80111 RE: Business License Dear Don, CITY OF CARLSBAD Administrative Permit -------------N------------------------· Case No. D 0/,. (J 2. ------------------------------·-······--· Exhibit No.---1..,;· ___ Date 't/3./DJ· I spoke to Greg Fisher Friday afternoon regarding a business license for 2385 Camino Vida Robel. He recommended that I contact you regarding this issue. Recently, we applied for an address change when renewing our current business license. Subsequently, we received a notice stating that our type of business is not allowed within the P-M planned zone. Please note that the services we offer are of a professional /consulting nature. All business is by appointment only, similar to that of a legal practice. All appointments are scheduled for 1 hour in length and are limited to 1 person per hour; therefore the maximum amount of people we see in one day would be six. Again, this is by appointment only. When there are no appointments scheduled, the individual qn site performs general office and administrative work, It is our understanding based on Table A, Section 21.34.020 of the Permitted Uses that this type of business is permitted. We do not deal with the general public, we have no walk in business, nor do we have drive up business. Based on the above stated facts, we respectfully request that you grant Newport Audiology Centers a business license for this location. Thank you for your time and consideration on this matter. Please feel free to call me with any questions or concerns at: 720-385-3714. ex=~~~~~ Laura A Smallen President Newport Audiology Centers Phone: 720-385-3714 Fax: 303-220-3075 Email: las@newaud.com 5970 Greenwood Plaza Blvd., Suite 210 • Greenwood Village, Colorado 80111 (720) 385-3700 • Fax (303) 220-3075 www.newportaudiology.com City of Carlsbad IRF•l•l••li·■•J4·E•ii,,1411 ■ March 17, 2008 Newport Audiology Centers 2385 Camino Vida Roble Suite 201 Carlsbad, CA 92008 Subject: Business License Dear Laura A. Smallen: CITY OF CARLSBAD Administrative Permit Exhibit No._5 ____ Date 4!/~/4 ( This letter is from April 30, 2007. Because you did not receive it then, it is being resent to you. Thank you for your letter regarding your business license request at 2385 Camino Vida Roble. The information describing the business activities was informative and helpful. Unfortunately, staff cannot support the proposed business use (Audiology Center) at this specific location. The proposed business location is located within the City's Planned Industrial Zone (P-M). In the P- M Zone, only the uses specifically listed in Table A of Chapter 21.34 of the Carlsbad Municipal Code shall be permitted. An Audiology Center or similar use is not listed within Table A of Chapter 21.34.020, and this type of service/use is not compatible with the intent and purpose of the underlying Zoning (P-M) and General Plan (Pl) Land Use designations. The intent and purpose of the P-M Zone with regard to office use is to allow business and professional offices engaged in activities associated with corporate offices or in activities whose primary purpose is not to cater directly to the general public. Although the number of proposed office visits is relatively low (clients are referred by doctors and seen on an appointment only basis), the business clearly caters directly to the general public. Businesses and professional offices which generate customers from outside the industrial park area(s) have historically been prohibited by the City in the P-M Zone and are not permissible per Chapter 21.34 of the CMC. The Office (0) and Commercial (C-1, C-2, & C-L) zoned areas are especially appropriate for the following types of uses: doctors, dentists, optometrists, chiropractors, massage therapists, and others practicing the healing arts. The proposed Audiology Center would be appropriately included within these other zones. For further information regarding appropriate zones and locations for your use within the City of Carlsbad, please contact me at (760) 602-4629 Sincerely, l).drr4 f~ DEBORAH MILAM Planning Technician DN:DM:lt c: Scott Donnell Code Enforcement Barbara Brandt File 1635 Faraday Avenue• Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 • www.ci.carlsbad.ca.us @ City of Carlsbad IRFihhhi·■•l4·EiiU,14hM March 31, 2008 CITY_ ~F CARLSBAD Admm,strative Pennit Newport Audiology Centers 5970 Greenwood Plaza Blvd., Ste. 210 Greenwood Village, CO 80111 ~~-e-iv~~ --• --pcii ·o;·.:;,i---------...... . ------- ' E:d1ibit N~-. -6-. -f-----••••• • • • • • • • • • •••••. 1.. • •• • Date ?ll,lof SUBJECT: BUSINESS LICENSE Dear Lori Thompson: This letter is to inform you about two items: • That the Planning Director has upheld staff's denial of your business license for Newport Audiology Centers at 2385 Camino Vida Roble; and • Your right to appeal the Planning Director's decision. - The Planning Director's determination was made last year on April 30, 2007. The information that supported that determination was elaborated on in a previous written communication from staff dated March 17, 2008. Since notification apparently was not received by Newport Audiology Centers at the time the determination was made, and because neither communication advised of your right to appeal, the ten calendar day time period during which you may appeal the determination begins on the date of this letter, March 31, 2008, and ends April 9, 2008. In order to appeal the decision, please send a written appeal stating the reason or reasons for the appeal and a filing fee of $598.50 to my attention at the Planning Department at 1635 Faraday Ave. Carlsbad, CA 92008. The Planning Commission will hear the appeal. More information on the process for filing and hearing an appeal of a planning director decision may be found in Section 21.54.140 of the Carlsbad Municipal Code, which is attached. If you choose to file an appeal, it will be you responsibility, as the appellant, to thoroughly establish the grounds for the appeal. Please call me at (760) 602-4629 with any questions of for further information. Sincerely, ~ o€MHMILAM Planning Technician c: Scott Donnell Code Enforcement Barbara Brandt File copy 1635 Faraday Avenue• Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 • www.ci.carlsbad.ca.us @ • DI ----~~ ~~ ENJOY HEARING, ENJOY LIVING Date: April 8, 2008 City of Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, CA 92008 Subject: Business License To Whom It May Concern: CITY OF CARLSBAD Administrative Pennit ~~; N~~. -• -,~JJ Of ui" • · · · · · · · ---· ----- This letter is in response to your letter dated March 31, 2008. Thank you for reviewing our letter regarding our business license for the City of Carlsbad. We have been doing business with the City since 1996. We have received your decision not to renew our current business license. As stated in your letter, businesses in this particular planned PM zone are only to do business with others in the same area. Based on a discussion with the planning department it is my understanding this includes zip codes 92008 and 92011. In an effort to remain compliant with this regulation and continue to service our clients in this area, we have elected to do the following: We will agree to service clients residing only in the aforementioned zip codes. All other clients will be referred to our recently opened Oceanside office or the other San Diego locations. We anticipate that it will be easy for us to implement this plan, as our corporate office maintains centralized scheduling program that will enables us to control the referring of clients. All other business we do from this office will be administrative in nature and be directed by our corporate office here in Denver Colorado. I hope the above information is sufficient to substantiate reinstating our business license, as we would love to continue to do business in your fine city. Sincerely, ()~6~ Lori Thompson Director of Program Administration Newport Health Network Inc. Phone:720-385-3776 Fax: 720-385-3777 Email: let@newaud.com • • \tVALTONCiBARBER L L P AT TO R N E Y S AT l-A W Mac~~j CARLSBAD :$ Administrative Permit Via Facsimile & u.s~ Mai~ ·-·········-e···--···--·-------------·-A M4y <ll~ Mr. Don Neu -Plannmg Duec <llbise No. Pct> or--02 ~ UJin_gl) ~ c-fl!JEi!JrJ; City of Carlsbad c~;zo1 • -~/Jl Planning Department '!Jrf ----------------------------·········---· 1635 Faraday Avenue ExhibitNo. f Date '1/~/IJY Carlsbad, CA 92008 Re: SUPPLEMENT TO APPEAL -Business License for Newport Audiology Dear Mr. Neu: This office has been asked to represent Newport Audiology in its appeal of the denial of the renewal of its business license. As is established below, Newport Audiology is a permitted use within the ambit of Section 21.34.020, Table A, and is a use which caters to and is ancillary to the other uses allowed within the zone and does not cater to the general public. As such, Newport Audiology respectfully requests that the Planning Department allow the renewal of their business license. BACKGROUND Newport Audiology ("Newport") is in the business of providing consultations for those suffering from hearing loss. Newport has locations throughout the United States and has six offices in San Diego County including Carlsbad, where Newport has been in business since 1996. Newport's Carlsbad office was originally located at 701 Palomar Airport Road. In 2006, Newport moved its business to the present location, 2385 Camino Vida Roble, Suite 201, Carlsbad, CA 92008 and sought to renew its business license when it expired. On or about April 30, 2007, the City of Carlsbad Planning Department refused to renew Newport's business license. Because Newport has six locations within San Diego County, the Carlsbad office only sees clients from the immediate area. Newport's clients in the Carlsbad office are referred by local companies and organizations for a variety of hearing related issues. Pre-employment testing, routine hearing testing, as well as Workers' Compensation claim testing are just a few examples. Newport assists companies and their employees with hearing prevention programs, as well as rehabilitation programs for those who have already suffered loss. Newport also sees workers who have filed Workers' Compensation claims. Some workers have been injured on the job, other workers need a release in order to go back to work. Some come in after the claim is first started for a preliminary exam to see if further medical treatment is indicated. They would get an audiological evaluation that Walton Barber LLP 5900 La Place Court, Suite 100 Carlsbad, CA 92008 Phone: 760.607.1325 Fax: 760.607.1326 www.WaltonBarber.com • • Mr. Don Neu -Planning Director May 8, 2008 Page 2 includes pure tone tests for ear and bone conduction, and word recognition testing to determine hearing loss and the degree of that loss. Patients who work in environments with high noise levels (such as Palomar Airport and the various manufacturers in the surrounding area such as Calloway and TaylorMade) can be fit with custom ear filters to protect their hearing. Routine monitoring of these workers is required, and Newport provides that testing on a yearly basis, unless the individual's hearing test results indicate a need for more frequency. For many workers Newport takes impressions and dispenses custom ear filters/plugs. Newport also has industrial workers come in because of tinnitus, a condition which causes a constant ringing in the ear. This is very common in people who work in high noise environments, and is often associated with hearing loss. In some cases these patients can be fitted with masking devices, and even hearing aids. These patients also need counseling on adapting to their tinnitus, and further testing to make sure there are not other underlying conditions. In other cases workers need hearing rehabilitation, which can take the form of testing and dispensing hearing aids, counseling, adaptation to the aids and their loss, and assisted listening devices. After the initial audiological evaluation, when hearing aids are indicated by Jhe results, impressions for custom ear molds are taken. The patient then returns in 10 days to 2 weeks for delivery and fitting of the instrument. Newport ·also does testing for area companies that require hearing testing per the company guidelines as the employees work in a facility where they are constantly working in an area with high noise levels. This usually is required once a year by the company to monitor whether the employee's hearing sensitivity has changed from the prev10us year. Finally, Newport also holds meetings with the various industries to inform the employees of precautions they can take to prevent hearing loss and other hearing impairments. This is usually done outside the office, at the local company itself. BASIS FOR APPEAL Newport's request was denied its license because, "[a]n Audiology Center or similar use is not listed within Table A of Chapter 21.34.020 , and this type of service/use is not compatible with the intent and purpose of the underlying Zoning (P-M) and General Plan (PI) Land Use designations." The denial letter also noted, "the business clearly caters directly to the general public." • Mr. Don Neu -Planning Director May 8, 2008 Page 3 Newport's Use Is Permitted Under 21.34.020-Table A As stated above, Newport provides testing and fitment for hearing aids and hearing protection. Newport's clients are sourced from local businesses, health management organizations (HMO's), and from Workers' Compensation claims. Many of Newport's clients' hearing loss is due to industrial injury, i.e. their hearing loss is due to work-related noise, whether they actually present through the Workers' C9mpensation system or privately. Table A "Permitted Uses" to 21.34.020 lists "Industrial medical (workers comp.)" as a permitted use. Further, 2 l .34.020(C) states, "A use similar to those listed in Table A may be permitted if the planning director determines such similar use falls within the intent and purposes of the zone, and is substantially similar to the specified permitted uses." It is Newport's position that their use is so "substantially similar" to Industrial medical that it should be a permitted use and falls within the intent and purposes of the zone. As described above, Newport sees patients both on referral from Workers' Compensation and as a preventative measure for employees who work in high noise areas. Obviously, Palomar Airport and a number of manufacturing companies are located in the immed_iate area and have employees who are exposed to high levels of noise on a daily basis. Those companies can, and do, refer employees to Newport for hearing tests, fitment of specialized hearing protection and, in the case of employees who have already suffered hearing loss, for treatment. Newport's Purpose Caters To Other Uses Within The Zone As is set forth in 21.34.010, the intent and purpose of the P-M zone is accomplished by allowing businesses listed in Table A "Q! in activities whose primary purpose is not to cater to the general public, and certain commercial uses which cater to and are ancillary to the uses allowed in this zone." Thus, even if the Planning Department feels that an Audiology Center is not a permitted use listed under Table A, Newport most certainly caters to and is ancillary to the uses allowed within the zone. Given the high number of manufacturers within the P- M zone, not to mention persons employed at Palomar Airport, the P-M zone presents a concentration of persons who work in environments which threaten their hearing and who require hearing tests, specialized and customized hearing protection and treatment via the fitment of hearing aids. • • Mr. Don Neu -Planning Director May 8, 2008 Page 4 Newport Does Not Cater To The General Public Note 1 to Table A specifies that the permitted uses within the P-M zone are those "[b ]usiness and professional offices which are not retail in nature, do not cater to the general public, and do not generate walk-in or drive-in traffic, and are incidental to the industrial uses in the vicinity." As set forth above, Newport's use is incidental to the industrial uses in the vicinity as they provide hearing loss prevention, treatment and education to the many businesses within the P-M zone where the employees are at high-risk for hearing loss. Such businesses, again, include the many manufacturers and employees of the airport. Newport is not retail in nature. Newport maintains no merchandise on hand. All hearing aids and ear protection are custom made for the individual users. Contrary to the assertions in the denial letter, Newport does not cater to the general public. Newport only sees clients on a by-appointment-only basis. Furthermore, an individual cannot simply stop by or call to set up a hearing test, etc. They must be referred by a company or insurance and come from a specific geographic area. To be seen at Newport's Carlsbad office the individual must either reside in the immediate geographic ar_ea or be employed in the immediate geographic area. Finally, Newport does not generate walk-in or drive-in traffic. There are no signs outside the building advertising their services which would cause a casual passer-by to come in to the center. Even if a passer-by did for some reason happen to stop in, they would not be seen by the audiologist because, as was stated above, consultations are by appointment only. CONCLUSION As can be seen from the foregoing, Newport's use is a permitted use, Industrial medical, listed within Table A to section21.34.020, as Newport sees clients as a result of Workers' Compensation referrals and industrial injuries. Additionally, Newport's purpose is also consistent with the P-M zone in that Newport's use caters to and is ancillary to other permitted uses as they provide hearing testing for pre-employment screening, hearing protection for employees engaged in high noise jobs such as manufacturing or airport personnel, and provide hearing loss prevention education to local businesses. Finally, Newport is not a retail business and does not cater to the general public. Newport sees clients only by appointment and they do not sell any products other than custom made hearing protection and hearing aids. Moreover, Newport only sees clients who are within a specific geographic area, the P-M zone. • Mr. Don Neu -Planning Director May 8, 2008 Page 5 As such, Newport Audiology respectfully requests the Planning Department reconsider their request for a renewal of their business license and re-issue their license, enabling them to continue serving the hearing protection needs of their local community. DSB:krh cc: Lori Thompson -Newport Audiology Respectfully submitted, WALTON BARBER LLP ?il5~L-- D. Scott Barber • • WALTONCiBARBER L L P ATTORNEYS AT LAW Via Email & U.S. Mail Mr. Don Neu -Planning Director City of Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, CA 92008 June 3, 2008 CITY OF CARLSBAD Administrative Permit ···········1,··················---------· Case No.CD ot • 0 Z. --------------------------·-------------· Exhibit No.,_1 _____ Date ~/~/o8 Re: SUPPLEMENT TO APPEAL-Business License for Newport Audiology Dear Mr. Neu:· This letter is in response to Deborah Millam's email correspondence of May 27, 2008 wherein she requested information regarding the percentage of Newport Audiology's business which is referred by local businesses and/or Workers' Compensation and the types of work that Newport Audiology performs. As ·set forth more specifically below, between 65% to 80% of Newport Audiology's business comes from Workers' Compensation and/or referrals from local businesses. By Newport Audiology's calculations, the business at the Carlsbad location breaks down as follows: -Workers' Compensation -Referrals from local businesses -Testing or treatment for hearing damage related to workplace causes -Pre-employment screening -Referrals from HMO's 5%-10% 30-35% 25-30% 10% 20-25% It is important to note that for most of the pre-employment screening and some of the testing and treatment related to workplace injuries, Newport Audiology does not know the name of the employer or potential employer and thus cannot conclusively determine whether they are local referrals or not. However, as we have noted before, all business that comes into the Carlsbad location is local as patients are referred to various centers based upon their zip code. It is thus our belief that the vast majority of the clients/patients seen at Newport Audiology's Carlsbad location are referrals from local businesses. We can state with certainty, that every patient seen has represented to Newport Audiology that they either work or reside within the local area. Walton Barber LLP 5900 La Place Court. Sl,ite 1 00 Carlsbad. CA 92008 Phone: 760.607.1325 Fax: 760.607.1326 www.WaltonBarber.com • • Mr. Don Neu -Planning Director June 3, 2008 Page 2 Newport Audiology performs the following types of testing at the Carlsbad location: o Spontaneous Nystagmus Test, including gaze and fixation Nystagmus, with recording o Positional Nystagmus Test, minimum of four positions, with recording e Caloric Vistibular Test, each irrigation (binaural), biothemml stimulation constitutes four tests, with recording o Optokinetic Nystagmus Test, bidirectional, foveal or peripheral stimulation, with recording o Oscillating Tracking Test, with recording e Sinusoidal Vertical Axis rotating testing with electrodes o Audiometry e Typanometry o Acoustic reflex test threshold o Acoustic reflex test decay o Screening test, pure tone, air only o Pure Tone, Air and Bone Testing o Tone Decay Test o Auditory Evoked Potentials for evoked response audiometry and or testing of the central nervous system (ABR) o Evoked Otoacoustic Emissions; limited o Evoked Otoacoustic Emissions; comprehensive or diagnostic evaluation Newport Audiology's Carlsbad location also performs fitment of specialized hearing protections. An impression is made of the inner ear. Custom earplugs are then made for the employees to wear. This process is about a 30-60 minute appointment. Newport Audiology also has appointments for patients wherein they dispense hearing aids. These appointments typically take about 60 minutes and are to make sure the person is comfortable and knows how to take care of and manage the instruments. Lastly, Newport Audiology is contracted with the California telephone access program. Hearing impaired citizens can come in for a test, and if they qualify the state will send them an amplified phone. Th.is can be for private citizens as well as an accommodation for a disabled employee. Mr. Don Neu -Planning Director June 3, 2008 Page 3 If you need additional infom1ation beyond that submitted above please let me know and I will be happy to obtain it for you. Otherwise, I will look forward to hearing back from you in the very near future. DSB:krh cc: Lori Thompson -Newport Audiology Respectfully submitted, WAL TON BARBER LLP D. Scott Barber I ! j 21.34.010 Chapter 21.34 P-M PLANNED INDUSTRIAL ZONE* Sections: 21.34.010 21.34.020 21 .. 34.035 21.34.050 21.34.060 21.34.070 21.34.080 21.34.090 21.34.110 21.34.120 21.34.130 21.34.140 21.34.150 21.34.160 Intent and purpose. Permitted uses. Incidental outdoor dining areas permitted by administrative permit. Planned industrial permit. Industrial subdivisions. Development standards. Design criteria. Performance standards. Amendments. Final map. Final planned industrial development plan. Certification of occupancy. Maintenance. Failure to maintain. * Prior history: Ords. 1256, 12_61, 9060, 9216 and 9674. 21.34.010 Intent and purpose. The intent and purpose of this chapter is to ac- complish the following: ( 1) • Allow the location of business and light in- dustries engaged primarily in research and/or testing, compatible light manufacturing, business and profes- sional offices when engaged in activities associated with corporate offices or in activities whose primary purpose is not to cater directly to the general public, and certain commercial uses which cater to and are ancillary to the uses allowed in this zone; (2) Promote an attractive and high-quality design in developments which upgrades the city's natural environment and identity; (3) Provide for the phasing of development which is coordinated with the development of public improvements and services; (4) Encourage reduced energy consumption by building design and by allowing, in certain cases, (Carlsbad Supp. No. 16, 5-06) 636 compatible \residential development which provides housing for employees of this zone; (5) Provide for alternative transportation modes for employees of_this zone by a combination of bus facilities, ride-share programs, and pedestrian and bicycle circulation systems. (Ord. 9693 § I (part), 1983) 21.34.020 Permitted uses. A. In a P-M zone, notwithstanding any other provision of tll.is title, only the uses listed in Table A, below, shall be permitted, subject to the requirements and development standards specified by this chapter, and subject to the provisions of Chapter 21.44 of this title governing off-street parking requirements. B. The uses pennitted by conditional use per- mit, as indicated in Table A, shall be subject to the provisions of Chapter 21.42 of this title. C. A use similar to those listed in Table A may be permitted if the planning director determines such similar use falls within the intent and purposes of the zone, and is substantially similar to the specified per- mitted uses. D. A use category may be general in nature, where more than one particular use fits into the gen- eral category ( ex. in some commercial zones "of- fices" is a general use category that applies to various office uses). However, if a particular use is permitted by conditional use permit in another zone, the use . shall not be permitted in this P-M zone ( even under a general use category) unless it is specifically listed in Table A of this chapter as permitted or conditionally permitted. CITY OF CARLSBAD Administrative Permit ••••••••••••9~•••••D••••••••••••••••mm••• Exhibit No_ /tJ Date 1,1-1/0 8 Table A Permitted Uses 21.34.020 ~ l • In the table, below, subject to all applicable permitting and development requirements of the municipal code: "P" indicates use is permitted. "CUP" indicates use is permitted with approval of a conditional use permit. I = Administrative hearing process 2 = Planning commission hearing process 3 = City council hearing process "Ace" indicates use is permitted as an accessory use. Use Accessory uses and structures where related and incidental to a permitted use Accountants (see note 1 below) Administrative offices associated with and accessory to a permitted use Administrative offices (see note 1 below) Advertising agencies (see note 1 below) Advertising-direct mail (see note I below) Agricultural consultants (see note 1 below) Agricultural farm worker housing (temporary) (subject to Section 21.42.140(B)(2)) Air courier service (see note 1 below) Airlines offices, general offices (see note I below) Airports Alcoholic treatment centers Answering bureaus (see note 1 below) Appraisers (see note 1 below) Aquaculture ( defined: Section 21.04.036) Arbitrators (see note l below) Architect design and planners (see note 1 below) Athletic clubs, gymnasiums, health clubs, and physical conditioning businesses Attorney (no legal clinics) (see note 1 below) Attorney services (see note 1 below) Audio-visual services (see note l below) Auto storage/impound yards (i.e., overnightproduct storage) Auto wrecking yards (defined: Section 21.04.040) Billing service (see note l below) Biological habitat preserve (subject to Section 2l.42.l40(B)(30)) ( defined: Section 21.04.048) Blueprinters (see note l below) 637 p X X X X X X X X X X X X X ... X X X X CUP Ace X 3 3 2 2 2 2 2 2 (Carlsbad Supp. No. 16. 5-06) 21.34.020 Use ! • p CUP Ace Book printing and publishing X Bookbinding X Bookkeeping service (see note l below) X Building designers (see note l below) X Building inspection service (see note l below) X Burglar alann systems (see note 1 below) X Business consultants (see note 1 below) X Business offices for professional and labor organizations X (see note l below) Campsites (overnight) (subject to Section 21.42.140(8)(40)) 2 Cemeteries 3 Child day care center (subject to Chapter 21.83) 2 ( defined: Section 21.04.086) Churches, synagogues, temples, convents, monasteries, and other 2 places of worship Civil engineers (see note l below) X Collection agencies (see note l below) X Columbariums, crematories, and mausoleums (not within a 2 cemetery) Commercial artists (see note 1 below) X Commodity brokers (see note 1 below) X Communications consultants (see note 1 below) X Computer programmers (see note l below) X Computer service (time-sharing) X Computer systems (see note l below) X Construction manager (see note 1 below) X Corporate headquarters office (see note 1 below) X Corporate travel agencies and bureaus (see note l below) X Credit rating service (see note 1 below) X Data communication service (see note 1 below) X Data processing service (see note l below) X Data systems consultants (see note l below) X Delicatessen ( defined: Section 21.04.106) l Diamond and gold brokers (see note l below) X ' Display designers (see note 1 below) X Display services (see note 1 below) X Drafting services (see note l below) X Drive-thru facilities (not restaurants) 2 Economics research (see note l below) X Educational consultants (see note l below) X Educational institutions or schools, public/private 2 (defined: Section 21.04.140) (Carlsbad Supp. No. I 6, 5-06) 638 21.34.020 Use \ -p CUP Ace Educational research (see note 1 below) X Electric contractors (sales and administrative offices only) X (see note 1 below) Electronics consultants (see note 1 below) X Energy management consultants (see note I below) X - Engineering offices (see note I below) X - Environmental services (see note 1 below) X Escrow service (see note 1 below) X Estimators (see note 1 below) . -· X Executive recruiting consultants (see note 1 below) X Executive search office (see note 1 below) X Executive training consultants (see note 1 below) X Export consultants (see note 1 below) X Fairgrounds 3 Financial planners and consultants (see note 1 below) X Fire protection consultants (see note 1 below) X Foreclosure assistance (see note 1 below) X Foundation-educational research (see note 1 below) X Franchise services (see note 1 below) X Fund-raising counselors (see note 1 below) X Gas stations (subject to Section 21.42.140(8)(65)) 2 Gemologists (see note 1 below) X General contractors (no equipment storage permitted) X (see note 1 below) Geophysicists (see note 1 below) X Golf courses 2 Government contract consultants (see note l below) X Government facilities and offices X Governmental agencies (general and administrative offices only) X (see note 1 below) Graphics designers (see note l below) X Greenhouses >2,000 square feet (subject to 1 Section 21.42.140(8)(70)) Hazardous waste facility (subject to Section 21.42.140(8)(75)) " 3 ( defined: Section 21.04.167) Hospitals ( defined: Section 21.04.170) 2 Hospitals (mental) (defined: Section 21.04.175) 2 Hotels and motels (subject to Section 21.42.140(8)(80)) 2 Human factors research and development (see note I below) X Human services organization (administrative offices only) X (see note 1 below) Importers (see note l below) X 638-1 (Carlsbad Supp. No. I 6, 5-06) 21.34.020 -Use l· p CUP Ace Incorporating agency C-see note I below) x Industrial medical (workers comp.) (see note l below) X Information bureaus (see note 1 below) X Insurance companies (administrative offices only) X (see note I below) Interior decorators and designers (no merchandise storage permitted) X (see note I below) Investigators (see note l below) X Investment advisory (see note 1 below) X Investment securities X Kennels 2 Labor relations consultants (see note I below) X Leasing services (see note I below) X Lecture bureaus (see note I below) X Literary agents (see_ note l below) X Magazine subscription agents (see note 1 below) X Mailing list service (see note l below) X Management consultants (see note l below) X Manufacturers agents (see note I below) X Manufacturing and processing facilities X Marketing research and analysis (see note l below) X Message receiving service (see note I below) X Mini-warehouses/self storage 2, Mobile buildings (subject to Section 2 l .42.140(B)(90)) 2 ( defined: Section 21.04.265) Mutual funds (see note l below) X Newspaper/periodical printing and publishing 2 Oil and gas facilities (on-shore) (subject to Section 21.42.140(B)(95)) 3 On-site recreational facilities intended for the use of employees of X the planned industrial zone Packing/sorting sheds >600 square feet (subject to l Section 2 l.42.140(B)(70)) Parking facilities (primary use) (i.e., day use, short-term, l nonstorage) " Patent searchers (see note l below) X Pension and profit sharing plans (see note l below) X Personal service bureau (see note 1 below) X Photo~phic (industrial and commercial only) (see note 1 below) X Printing services (see note l below) X Product development and marketing (see note I below) X Public relations services (see note l below) X Public utility companies (see note l below) X (Carlsbad Supp. No. 16, 5-06) 638-2 21.34.020 Use !-p CUP Ace Public/quasi-public buildings and facilities and accessory utility 2 buildings/facilities ( defined: Section 21.04.297) Publicity services (see note I below) X Publishers representatives (see note l below) X Racetracks 2 - Radio communications (see note l below) X - Radio/television/microwave/broadcast station/tower 2 Real estate brokers (commercial and industrial only) X (see note 1 below) Real estate developers (see note 1 below) X Recording service (see note 1 below) X Recreation facilities 2 Recreational vehicle storage ( subject to Section 21.4 2 .l 40(B )(12 0)) I ( defined: Section 21.04.299) Recycling collection facilities, small (subject to Chapter 21.105 of 1 this title) ( defined: Section 2 l. 105 .0 I 5) Recycling collection facilities, large (subject to Chapter 21.105 of 2 this title) (defined: Section 21.105.015) Recycling process/transfer facility 2 Relocation service ( see note 1 below) X Repossessing service (see note 1 below) X Research and testing facilities X Research labs (see note 1 below) X Residential uses in P-M Zone (subject to Section 21.42.140(B)(135)) 3 Restaurants (bona fide public eating establishment -defined: 2 Section 21.04.056) Retail uses 2 Retirement planning consultants (see note I below) X Safety consultants (see note l below) X Sales training and counseling (see note 1 below) X Satellite antennae (>l per use) (defined: Section 21.04.302) 1 Satellite television antennae (subject to Section 21.53.130) X Searchers of records (see note 1 below) X Securities systems (see note 1 below) X '- Security firms (see note 1 below) X Sims (subject to Chapter 21.41) X Sound system consultants (see note 1 below) X Space planning consultants (see note 1 below) X Space research and developments (see note 1 below) X Stadiums ,., .) Stock and bond brokers (see note l below) X Storage, wholesale and distribution facilities X 638-3 (Carlsbad Supp. No. 16, 5-06) 2L34.020 Use !· p CUP Ace Surveyors (see note 1 below) X Tax service and consultants (no consumer-oriented uses) X (see note 1 below) Telephone cable companies (see note 1 below) X Telephone systems (see note 1 below) X Title companies (see note l below) X Tour operators (see note 1 below) X Trademark consultants (see note 1 below) X Transit passenger terminals (bus and train) 2 Translators and interpreters (see note 1 below) X Trust companies (see note 1 below) X Veterinary clinic/animal hospital (small animals) 1 ( defined: Section 21.04.3 78) Windmills ( exceeding height limit of zone) 2 (subject to Section 21.42.140(B)(160)) Wireless communications facilities (subject to 1/2 Section 21.42.140(B)(l65)) (defined: Section 21.04.379) Zoos (private) (subject to Section 21.42.140(B)(l 70)) 2 ( defined: Section 21.04.400) Note: I, Business and professional offices which are not retail in nature, do not cater to the general public, and do not generate walk-in or drive-in traffic, and are incidental to the industrial uses in the vicinity. (Ord. NS-791 § 26 (part), 2006: Ord. NS-675 § 76 (part), 2003; Ord. NS-87 § 5, 1989; Ord. 9804 § 6 (part), 1986; Ord. 9785 § 21, 1986; Ord. 9693 § I (part), 1983) 21.34.035 Incidental outdoor dining areas permitted by adm_inistrative permit. Subject to the development standards set forth in Section 21.26.013( c) an incidental outdoor dining area may be approved by administrative permit pur- suant to Section 21.26.0l3(a). (Ord. NS-492 § 11, 1999) 21.34.050 Planned industrial permit. (a) Planning Director Approval. No develop- ment of a permitted use pursuant to Section 21.34.020, change of use of building modifications in excess of twenty-five percent of the building valua- tion of the existing development shall be done with- out first obtaining a planned industrial permit from the planning director. In his review of a planned in- dustrial development, the planning director ~hall as- certain all facts pertinent to the proposed develop-- ment and shall approve, conditionally approve, dis- approve or give notice of referral to the planning commission, together with the findings and reasons for such action. (b) Application. Application for a planned indus- trial permit shaU be made in acco,rdance with the pro- cedures set forth in this subsecaon: ( l) An application for a planned industrial per- mit may be made by the record owner or owners of the property affected or the authorized agent of the owner or owners. The application shall be filed with the planning director upon forms prov_ided him. The application shall be accompanied by adequate plans which allow for detailed review pursuant to this chapter, a legal description of the property and all other (Carlsbad Supp. No. 16, 5-06) 638-4 1, Item #3 Newport Audiology Centers REBUTTAL TO THE CITY OF CARLSBAD PLANNING DEPARTMENT'S REPORT TO THE PLANNING COMMISSION P.C. Agenda Of: September 3, 2008 Re: PCD-08-02 -NEWPORT AUDIOLOGY CENTERS Request granting of the appeal of the Planning Director's determination that the office of Newport Audiology Centers, located at 2385 Camino Vida Roble, within Local Facilities Management Zone 5 is not a permitted use in the Planned Industrial (PM) Zone. I. INTRODUCTION Contrary to the Planning Department's report, Newport Audiology Centers ("Newport") has not been illegally operating at its current location. Since learning that it's request for reconsideration of the Planning Director's decision not to allow the renewal of its business license, Newport has been diligently pursuing an appeal of the determination. In short, Newport contends that its business is a permitted "Use" within the PM zone. Newport sees patients for fitment of hearing aids and hearing protection as well as conducting pre and during-employment hearing screenings. Newport's patients only come from the surrounding area (i.e. within the PM zone) and Newport does not see patients on a walk-up or drive-up basis. As such, Newport's use of the premises is completely consistent with the PM zoning. II. BACKGROUND Newport Audiology ("Newport") is in the business of providing consultations for those suffering from hearing loss. Newport has locations throughout the United States and has six offices in San Diego County including Carlsbad, where Newport has been in business since 1996. Newport's Carlsbad office was originally located at 701 Palomar Airport Road. In 2006, Newport moved its business to the present location, 2385 Camino Vida Roble, Suite 201, Carlsbad, CA 92008 and sought to renew its business license when it expired. On or about April 30, 2007, the City of Carlsbad Planning Department refused to renew Newport's business license. This appeal ensued. PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Pae 2 Because Newport has six locations within San Diego County, the Carlsbad office only sees clients from the immediate area. To be seen at by Newport, potential patients either visit Newport's website or call their 1-800 number. Either way, referrals are made strictly on the basis of zip-code, with the patient being referred to the location nearest their home or place of work. Thus a patient from, say, the 92117 zip-code would be referred to the Mission Valley office. Newport's six San Diego County locations are: Mission Valley, El Cajon, Rancho Bernardo, Chula Vista, Escondido and Carlsbad. Newport's clients in the Carlsbad office are referred by local companies and organizations for a variety of hearing related issues. Pre-employment testing, routine hearing testing, as well as Workers' Compensation claim testing and treatment are just a few examples. Newport assists companies and their employees with hearing prevention programs, as well as rehabilitation programs for those who have already suffered loss. As noted by the Planning Department, Newport sees workers who have filed Workers' Compensation claims. Some workers have been injured on the job, other workers need a release in order to go back to work. Some come in after the claim is first started for a preliminary exam to see if further medical treatment is indicated. They would get an audiological evaluation that includes pure tone tests for ear and bone conduction, and word recognition testing to determine hearing loss and the degree of that loss. Patients who work in environments with high noise levels (such as Palomar Airport and the various manufacturers in the surrounding area such as Calloway and TaylorMade) can be fit with custom ear filters to protect their hearing. Routine monitoring of these workers is required, and Newport provides that testing on a yearly basis, unless the individual's hearing test results indicate a need for more frequency. For many workers, Newport takes impressions and dispenses custom ear filters/plugs. Newport also has industrial workers come in because of tinnitus, a condition which causes a constant ringing in the ear. This is very common in people who work in high noise environments, and is often associated with hearing loss. In some cases these patients can be fitted with masking devices, and even hearing aids. These patients also need counseling on adapting to their tinnitus, and further testing to make sure there are not other underlying conditions. In other cases workers need hearing rehabilitation, which can take the form of testing and dispensing hearing aids, counseling, adaptation to the aids and their loss, and assisted listening devices. After the initial audiological evaluation, when hearing aids are indicated by the results, impressions for custom ear molds are taken. The patient then returns in 10 days to 2 weeks for delivery and fitting of the instrument. Newport also does testing for area companies that require hearing testing per the company guidelines as the employees work in a facility where they are constantly working in an area with high noise levels. This usually is required once a year by the PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Pa e 3 company to monitor whether the employee's hearing sensitivity has changed from the previous year. This is also a pre-employment requirement for hiring with many local government agencies. Finally, Newport also holds meetings with the various industries to inform the employees of precautions they can take to prevent hearing loss and other hearing impairments. This is usually done outside the office, at the local company itself. III. ANALYSIS Newport's request was denied its license because, "(a]n Audiology Center or similar use is not listed within Table A of Chapter 21.34.020 , and this type of service/use is not compatible with the intent and purpose of the underlying Zoning (P-M) and General Plan (Pl) Land Use designations." The denial letter also noted, "the business clearly caters directly to the general public." Newport's Use Is Permitted Under 21.34.020-Table A As stated above, Newport provides testing and fitment for hearing aids and hearing protection. Newport's clients are sourced from Workers' Compensation claims, local businesses, and from health management organizations (HMO's). Many of Newport's clients' hearing loss is due to industrial injury, i.e. their hearing loss is due to work-related noise, whether they actually present through the Workers' Compensation system or privately. Many of Newport's patients are also seen to prevent hearing loss due to their employment in high-noise jobs. Table A "Permitted Uses" to 21.34.020 lists "Industrial medical (workers comp.)" as a permitted use. Further, 21.34.020(C) states, "A use similar to those listed in Table A may be permitted if the planning director determines such similar use falls within the intent and purposes of the zone, and is substantially similar to the specified permitted uses." The Planning Department has asserted that Newport's use "does not meet the definition of industrial medicine/worker's compensation." The Planning Department has not offered a definition of "industrial medicine." We were also unable to locate a definition of "industrial medicine" with the Carlsbad Municipal Code. A quick on-lien search revealed the following definition of "industrial medicine" from Encyclopedia Britannica.com: Branch of medicine dealing with workers' health and the prevention and treatment of diseases and injuries in the workplace. Workplace hazards include exposure to dangerous materials including asbestos and coal dust, PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Pa e4 radiation exposure, and machinery capable of causing injuries ranging from minor to life-threatening. Industrial medical programs mandate protective devices around machines' moving parts, proper ventilation of work areas, use of less toxic materials, containment of production processes, and protective equipment and clothing. Good industrial medical programs improve labor-management relations, increase workers' overall health and productivity, and reduce insurance costs. It is important to note the permitted use, as set forth in Table A "Permitted Uses" to 21.34.020 identifies "Industrial medical (worker's comp.)" (Emphasis added.) "Industrial medical" is the permitted use, while "worker's comp." is merely an ancillary definition. Thus, the Planning Department's focus on the percentage of worker's compensation patients seen by Newport is misplaced. The permitted use is NOT "workers' comp." In their Report, the Planning Department cites to our June 3, 2008 letter for their position that Newport's business is 5-10% worker's compensation. While correct, the whole table presented by Newport should be considered: -Workers' Compensation -Referrals from local businesses -Testing or treatment for hearing damage related to workplace causes -Pre-employment screening -Referrals from HMO's 5%-10% 30-35% 25-30% 10% 20-25% As can thus been seen, at least 75-80% of Newport's business fits the definition of "industrial medicine." Additionally, a large portion of the referrals from HMO' s may be industrial medical as well, as injured workers may see their primary care physician first and then receive a referral to Newport. Newport's Use Is Also "Substantially Similar" To Industrial Medical It is Newport's position that their use is so "substantially similar" to Industrial medical that it should be a permitted use and falls within the intent and purposes of the zone. As described above, Newport sees patients both on referral from Workers' Compensation and as a preventative measure for employees who work in high noise areas. Obviously, Palomar Airport and a number of manufacturing companies are located in the immediate area and have employees who are exposed to high levels of noise on a daily basis. Those companies can, and do, refer employees to Newport for hearing tests, fitment of specialized hearing protection and, in the case of employees who have already suffered hearing loss, for treatment. PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Pae 5 Newport's Purpose Caters To Other Uses Within The Zone As is set forth in 21.34.010, the intent and purpose of the P-M zone is accomplished by allowing businesses listed in Table A "Q! in activities whose primary purpose is not to cater to the general public, and certain commercial uses which cater to and are ancillary to the uses allowed in this zone." Thus, even if the Planning Department feels that an Audiology Center. is not a permitted use listed under Table A, Newport most certainly caters to and is ancillary to the uses allowed within the zone. Given the high number of manufacturers within the P- M zone, not to mention persons employed at Palomar Airport, the P-M zone presents a concentration of persons who work in environments which threaten their hearing and who require hearing tests, specialized and customized hearing protection and treatment via the fitment of hearing aids. Newport Does Not Cater To The General Public Note 1 to Table A specifies that the permitted uses within the P-M zone are those "[b ]usiness and professional offices which are not retail in nature, do not cater to the general public, and do not generate walk-in or drive-in traffic, and are incidental to the industrial uses in the vicinity." Newport is not retail in nature. Newport maintains no merchandise on hand for sale. A person cannot walk in from off the street and buy merchandise off the shelves. All hearing aids and ear protection are custom made for the individual users. By definition, "retail" implies the sale of generic goods, an inventory of which is maintained on the premises. Newport's hearing protection and hearing aids are not generic, nor do they maintain an inventory of products for sale on the premises. Newport Does Not Cater to the General Public Contrary to the assertions in the Report, Newport does not cater to the general public. Newport only sees clients on a by- appointment-only basis. Furthermore, an individual cannot simply stop by or call to set up a hearing test, etc. They must come from a specific geographic area. To be seen at Newport's Carlsbad office, the individual must either reside in the immediate geographic area or be employed in the immediate geographic area. Newport Does Not Generate Walk-In or Drive-In Traffic There are no signs outside the building advertising Newport's services which would cause a casual passer- by to come in to the center. Newport's office is on the second floor of a professional building. Newport does not have any signs advertising their business. Even if a passer- by did for some reason happen to stop in, they would not be seen by the audiologist because, as was stated above, consultations are by appointment only. Newport's Use is Incidental to the Industrial Uses in the Vicinity As set forth above, Newport's use is incidental to the industrial uses in the vicinity as they provide PCD 08-02 -NEWPORT AUDIOLOGY CENTERS September 3, 2008 Page 6 hearing loss prevention, treatment and education to the many businesses within the P-M zone where the employees are at high-risk for hearing loss. Such businesses, again, include the many manufacturers and employees of Palomar Airport. IV. CONCLUSION As can be seen from the foregoing, Newport's use is a permitted use, Industrial medical, listed within Table A to section 21.34.020, as Newport sees clients as a result of Workers' Compensation referrals, industrial injuries and for the prevention of industrial injuries. Additionally, Newport's purpose is also consistent with the P-M zone in that Newport's use caters to and is ancillary to other permitted uses as they provide hearing testing for pre-employment screening, hearing protection for employees engaged in high noise jobs such as manufacturing or airport personnel, and provide hearing loss prevention education to local businesses. Finally, Newport is not a retail business and does not cater to the general public. Newport sees clients only by appointment and they do not sell any products other than custom made hearing protection and hearing aids. Moreover, Newport only sees clients who are within a specific geographic area, the P-M zone. As such, Newport Audiology respectfully requests the Planning Commission overturn the Planning Director's determination and DENY Planning Commission Resolution No. 6460. Instead, Newport Audiology respectfully requests the Planning Commission direct the Planning Director to renew Newport's business license at their current location, enabling them to continue serving the hearing protection needs of the local community. Respectfully submitted, WALTON BARBER LLP D. Scott Barber