HomeMy WebLinkAbout2021-01-21; Temporary Activation Permit Enforcement; Murphy, JeffTo the members of the:
CITY COUNCI ~ /
Date I-2!-2~-cc_/
CM _L ACM_DCM(3)_ ..
Jan. 21, 2021
Council Memorandum
To:
From:
Honorable Mayor Hall and Members of the City Council
Jeff Murphy, Community Development Director
Geoff Patnoe, Assistant City Manager ~
Temporary Activation Permit Enforcement
Via:
Re:
{city of
Carlsbad
Memo ID #2021019
This memorandum provides an overview of staff's implementation of the City Council's direction
regarding the elevation of administrative enforcement against businesses who received permits
to temporarily activate outdoor spaces and are violating the permits by using the outdoor spaces
to violate the San Diego County Public Health Order.
Background
On Jan. 19, 2021, the City Council directed, among other actions, that staff elevate the
administrative enforcement against those businesses who are violating temporary activation
permits by using the outdoor spaces authorized by the permits to violate the San Diego County
Public Health Order. Temporary activation permits include Private Property Permits (permits
that allow use in public parking lots) and Right-of-Way (ROW) Use Permits (permits that allow
use in the public street and sidewalks). Currently, there are a total of 75 businesses holding a
Private Property Permit and 15 businesses that hold a ROW Use Permit. Based on a recent
inspection, roughly 50% of the businesses holding a ROW Use Permit are using the outdoor
spaces authorized by the permits to violate the San Diego County Public Health Order. At the
time of this memorandum, a comprehensive inspection of businesses holding a Private Property
Permit has not been completed.
Discussion
As reflected in Attachment A, the Director of Emergency Services has signed COVID-19 related
Emergency Orders, which include language outlining the rules and regulations associated with
the use of temporary outdoor activation as authorized by the City Council, as well as the
implications when businesses choose to violate those rules.
Today, the Community Development Department started mailing those businesses holding a
Private Property Permit and/or ROW Use Permit a letter reminding them of the current San
Diego County Public Health Order requirements and the implications of using outdoor spaces
authorized by temporary activation permits to violate the San Diego County Public Health Order,
which includes the suspension or cancellation of their temporary activation permit and possible
fines. A copy of the applicable Emergency Order was also included in the letter. A sample letter
Community Services Branch
Community Development Department
1635 Faraday Avenue I Carlsbad, CA 92008 [ 760-602-2783
Council Memo -Temporary Activation Permit Enforcement
Jan. 21, 2021
Page 2
is included as Attachment B. Starting Friday, staff will also start issuing hand delivered copies of
the letters to the businesses to ensure receipt of the letter.
Next Steps
Code Enforcement staff will be conducting inspections starting next week. Those businesses
found to be violating their permits and the Emergency Order by using outdoor spaces authorized
by the permits to violate the San Diego County Public Health Order will be given a Notice of
Violation (NOV) requiring that all outdoor activities cease immediately. As part of the NOV,
businesses will also be advised that their permit is suspended.
If during an inspection, a code enforcement officer observes a business operating outdoors
without a valid Temporary Activation Permit, an NOV will be issued (no verbal warning).
Code enforcement will reinspect businesses who received an NOV every 24 to 72 hours to ensure
compliance. If the business continues to violate its Temporary Activation Permit and the
Emergency Order, code enforcement will initiate issuance of Administrative Citations as follows:
• $100 for first observed infraction
• $200 for second observed infraction
• $500 for the third and subsequent observed infractions
Once four $500 citations have been issued to the same business, the matter will be referred to
the City Attorney's Office for other possible enforcement.
For enforcement actions taken against businesses that serve alcohol, a copy of the NOV and
Administrative Citation(s) will be sent to the Department of Alcoholic Beverage Control for
review and possible follow-up.
As reported to City Council on Jan. 19, 2021, this enforcement effort will be a priority for the
department, which will result in significant delays in processing other non-COVID-19 related
enforcement cases.
Staff will keep the City Council informed of current efforts and activities related to this
enforcement effort as part of the City Council.agenda item: "COVID-19 Actions and Expenditures
Report."
Attachment: A. Emergency Order
B. Sample Warning Letter
Council Memo -Temporary Activation Permit Enforcement
Jan. 21, 2021
Page 3
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
David Graham, Chief Innovation Officer
Faviola Medina, City Clerk Services Manager
James Wood, Environmental Manager
Jason Haber, Intergovernmental Affairs Director
John Maashoff, Public Works Manager
Judy Von Kalinowski, Human Resources Manager
Kristina Ray, Communication & Engagement Director
Kyle Lancaster, Parks & Recreation Director
Laura Rocha, Deputy City Manager, Administrative Services
Maria Callander, Information Technology Director
Michael Calderwood, Fire Chief
Neil Gallucci, Police Chief
Paz Gomez, Deputy City Manager, Public Works
Ryan Green, Finance Director
Sheila Cobian, Assistant to the City Manager
Suzanne Smithson, Library & Cultural Arts Director
Tom Frank, Transportation Director
Vicki Quiram, Utilities Director
ATTACHMENT A
EMERGENCY ORDER NO. 2021-01-01
AN ORDER OF THE CITY OF CARLSBAD DIRECTOR OF EMERGENCY SERVICES CARRYING OUT THE
PURPOSE AND INTENT OF CITY COUNCIL RESOLUTION 2020-167 TEMPORARILY SUSPENDING
OR MODIFYING CERTAIN LAND DEVELOPMENT STANDARDS IN THE VILLAGE AND BARRIO
MASTER PLAN AND IN TITLE21 OF THE CARLSBAD MUNICIPAL CODE
WHEREAS, on July 28, 2020, by Resolution 2020-167, the City Council of the City of ·
Carlsbad authorized the Director of Emergency Services under Carlsbad Municipal Code Section
6.04.100(A)(6)(e) to:
1. Temporarily suspend or modify the land development standards identified in
Attachment A to the Resolution.
2. Take a·ny further action necessary and appropriate to carry out the purpose and intent
of the Resolution.
WHEREAS, the purpose of the temporary suspension or modification of the land
development standards was to allow businesses to activate outdoor spaces in order to operate
in compliance with public health orders.
WHEREAS, the state's Dec. 3, 2020 Regional Stay At Home Order, which became
effective in the Southern California region on Dec. 7, 2020, prohibits businesses, from among
other activities, selling food and drinks for on-site consumption.
WHEREAS, certain businesses are using outdoor spaces activated under the temporarily
suspended or modified land development standards to conduct or allow activities prohibited by
public health orders.
WHEREAS, state law, including California Health & Safety Code Sections 120175.S(b),
120275, 120290, and 120295, requlres the city, its businesses, it residents and its visitors to
comply with public health orders.
WHEREAS, conducting or allowing activities prohibited by public health orders is
inconsistent with the purpose of the temporary suspension or modification of the land
development standards, is a misuse of any public resources utilized for activating outdoor
spaces, and will "imperil the lives or property of inhabitants of this city" or 11prevent, hinder or
delay the defense or protection" of them within the meaning of Carlsbad Municipal Code
Section 6.04.130(B}.
Emergency Order No. 2021-01-01
Page2
NOW, THEREFORE, under the authority conferred by California Government Code
Section 8634, Carlsbad Municipal Code Section 6.04.100(A)(6)(e), and City Council Resolution
2020-167, the Director of Emergency Services orders as follows:
1. No permits to temporarily activate outdoor spaces may be issued for activities
prohibited by federal, state, or local law, including public health orders.
2. Businesses with approved permits to temporarily activate outdoor spaces issued under
the temporarily suspended or modified standards shall not utilize the outdoor spaces to
conduct or allow activities prohibited by federal, state, or l9cal law, including public
health orders.
3. If a business fails to comply with Paragraph 2 of this order, the Community
Development Director, or a designee, is authorized to suspend or cancel any permits
issued to the business under the temporarily suspended or modified standards.
4. If the Community Development Director, or a designee, suspends or cancels a business's
permit under Paragraph 3, or the business has activated outdoor space without an
approved permit, the business must immediately remove any improvements and/or
encroachments from the outdoor spaces and return the outdoor spaces to their pre-
permit, pre-improvement, and/or pre-encroachment condition.
5. The Communications and Engagement Director is directed to give this order widespread
publicity and notice.
6. A violation of this order is a vioiation of Carlsbad Municipal Code Section 6.04.130(8)
and is subject to any remedies available under that section, under any other applicable
sections of the Carlsbad Municipal Code, and under federal, state or local law, including
public health orders.
DATED: ZD:s-w 2 l /\
{ITV 0 ~ CARLSBAD
DmECT.OR OF EMERGENCY SERVICES
~j 1tYt
Scott't?adwick
EMERGENCY ORDER NO. 2021-01-02
AN ORDER OF THE CITY OF CARLSBAD DIRECTOR OF EMERGENCY SERVICES CARRYING OUT THE
PURPOSE AND INTENT OF CITY COUNCIL RESOLUTION 2020-189 TEMPORARILY SUSPENDING
OR MODIFYING CERTAIN LAND DEVELOPMENT STANDARDS IN THE WESTFIELD CARLSBAD
SPECIFIC PLAN
WHEREAS, on Sept. 15, 2020, by Resolution 2020-189, the City Council of the City of
Carlsbad authorized the Director of Emergency Services under Carlsbad Municipal Code Section
6.04.10Q(A)(6)(e) to:
1. Temporarily suspend or modify the land development stc:1ndards identified in
Attachment A to the Resolution.
2. Take any further action necessary and appropriate to carry out the purpose and intent
of the Resolution.
WHEREAS, the purpose of the temporary suspension or modification ofthe land
development standards was to allow businesses to activate outdoor spaces in order to operate
in compliance with public health orders.
WHEREAS, the state's Dec. 3, 2020 Regional Stay At Hotne Order, which became
effective in the Southern California region on Dec. 7, 2020, prohibits businesses, from among
other activities, selling food and drinks for on-site consumption.
WHEREAS, certain businesses are using outdoor spaces activated under the temporarily
suspended OF modified land development standards to conduct or allow activities prohibited by
public health orders.
WHEREAS, state law, including California Health & Safety Code Sections 120175.S(b),
120275, 120290, and 120295, requires the city, its businesses, it residents and its visitors to
comply with public health orders.
WHEREAS, conducting or allowing activities prohibited by public health orders is
inconsistent with the purpose of the temporary suspension or modification of the land
development standards, is a misuse of any public resources utilized for activating outdoor
spaces, and will "imperil the lives or property of inhabitants of this city" or "prevent, hinder or
delay the defense or protection" of them within the meaning of Carlsbad Municipal Code
· Section 6.04.130(8).
Emergency Order No. 2021-01-02
Page2
NOW, THEREFORE, under the authority conferred by California Government Code
Section 8634, Carlsbad Municipal Code Section 6.04'.100(A}(6){e), and City Council Resolution
2020-189, the Director of Emergency Services orders as follows:
1. No permits to t~mporarily activate outdoor spaces may be issued for activities
prohibited by federal, state, or local law, including public health orders.
2. Businesses with approved permits to temporarily activate outdoor spaces issued under
the temporarily suspended or modified standards shall not utilize the outdoor spaces to
conduct or allow activities prohibited by federal, state, or local law, including public
health orders.
3. If a business fails to comply With Paragraph 2 of this order, the Community
Development Director, or a designee, is authorized to suspend or cancel any permits
issued to the business under the temporarily suspended or modified standards.
4. If the Community Development Director, or a designee, suspends or cancels a business's
permit under Paragraph 3, or the business has activated outdoor space without an
approved permit, the business must immediately remove any improvements and/or
encroachments from the outdoor spaces and return the outdoor spaces to their pre-
permit, pre-improvement, and/or pre-encroachment condition.
5. The Communications and Engagement Director is directed to give this order widespread
publicity and notice.
6. A violation of this order is a violation of Carlsbad Municipal Code Section 6.04.130(B)
and is subject to any remedies available under that section, under any other applicable
sections of the Carlsbad Municipal Code, and under federal, state or local law, including
public health orders.
DATED: 0)3A..N L \ n
Cj,-Y 0 ~ CARLSBAD
DlRECTp R OF EME.RGENCY SERVICES
\ 11_L1 (,, .. w
' /. ....,,.
Scott Cl'faa wick
EMERGENCY ORDER NO. 2021-01-03
AN ORDER OF THE CITY OF CARLSBAD DIRECTOR OF EMERGENCY SERVICES CARRYING OUT THE
PURPOSE AND INTENT OF CITY COUNCIL RESOLUTION 2020-181 SUSPENDING THE COLLECTION
OF AND REIMBURSING FEES FOR SIDEWALK CAFE, OUTDOOR DISPLAY, AND CURB CAFE
PERMITS AND ENCROACHMENT AGREEMENTS
WHEREAS, on Sept. 1, 2020, by Resolution 2020-181, the City Council of the City of
Carlsbad authorized the Director of Emergency Services under Carlsbad Municipal Code Section
6.04.100(A)(6)(e) to:
1. Suspend the collection of fees for the issuan·ce of sidewalk cafe, outdoor display, and
curb cafe permits and encroachment agreements until February 28, 2021, or for the
duration of the COVID-19 pandemic emergency, whichever is later.
2. Reimburse fees paid for sidewalk cafe, outdoor display, and curb cafe permits and
encroachment agreements issued from March 1, 2020 to Sept. 1, 2020.
3. Take any further action necessary and appropriate to carry out the purpose and intent
of the Resolution.
WHEREAS, the purpose of suspending and reimbursing the fees for the permits and
encroachment agreements was to allow businesses to activate outdoor spaces in order to
operate in compliance with public health orders.
WHEREAS, the state's Dec. 3, 2020 Regional Stay At Home Order, which became
effective in the Southern California region on Dec. 7, 2020, prohibits businesses, from among
other activities, selling food and drinks for on-site consumption.
WHEREAS, certai~'&-u~inesses with outdoor spaces activated by permits or
encroachment agreements for which fees were suspended or reimbursed are using the
outdoor spaces to conduct or allow activities prohibited by public health orders.
WHEREAS, state law, including California Health & Safety Code Sections 120175.5(b),
120275, 120290, and 120295, requires the city, its businesses, it residents and its visitors to
comply with public health orders.
WHEREAS, conducting or allowing activities prohibited by public health orders is
inconsistent with the purpose of the suspended or reimbursed fees, is a misuse of any public
resources utilized for activating outdoor spaces, and will "imperil the lives or property of
inhabitants of this city" or "prevent, hinder or delay the defense or protection" of them within
the meaning of Carlsbad Municipal Code Section 6.04.130(B).
Emergency Order No. 2021-01-03
Page2
NOW, THEREFORE, under tlie, authority conferred by California .Government Code
Section 8634, Carlsbad Municipal Code Section 6.04.l00(A)(G)(e), and City Council Resolution
2020-181, the Director of Emergency Services orders as follows:
1. While the Regional Stay At Home Order remains in effect in the Southern California
region, no fees may be suspended for permits or encroachment agreements to activate
outdoor spaces for businesses that sell food or drinks.
2. Businesses with' permits or encroachment agreements to activa~e outdoor spaces for
which fees were suspended or reimbursed shall not utilize the outdoor spaces to
conduct or allow activities prohibited by federal, state, or local law, including public
health orders.
3. If a business fails to comply with Paragraph 2 of this order, the Community Services
Director is authorized to suspend or cancel any permits or encroachment agreements
for which fees were suspended or reimbursed.
4. If the Community Services Director suspends or cancels a business's permit or
encroachment agreement under Paragraph 3, the business must immediately remove
any improvements and/or encroachments from the outdoor spaces and return the
outdoor spaces to their condition before the business received a permit or
encroachment agreement for which fees were suspended.
5. The Communications and Engagement Director is directed to give this order widespread
publicity and notice.
6. A violation of this order is a violation of Carlsbad Municipal Code Section 6.04.130(8)
and is subject to any remedies available under that section, under any other applicable
sections of the Carlsbad Municipal Code, and under federal, state or local law, including
public health orders.
DATED: 2.b::rA.d..l
Scott Chadwick
'I
Date
Business owner name
Business Name
Address
Address
SAMPLE
(Restaurant in ROW}
Attachment B
{city of
Carlsbad
VIA MAIL AND HAND DELIVERY
COVID REGIONAL STAY AT HOME ORDER (SAHO) AND CITY ACTIVATION PERMITS IN PUBLIC RIGHT OF WAY
Dear Mr. or Ms. Last Name:
Our records indicate that you currently hold a Right-of-Way Use Permit, which authorizes the outdoor activation
of the public sidewalk and/or public street parking to temporarily expand your business operations during the
COVID pandemic. This letter is a reminder that effective Dec. 6, 2020, the California Department of Public Health
and the County of San Diego Health and Human Services Agency issued a Regional Stay at Home Order (SAHO),
which imposed restrictions/limitations that affect your business operations. According to the state, the SAHO will
remain in effect until the four-week projection for ICU capacity is above 15% in the Southern California region.
For restaurant and bar establishments, indoor and outdoor dining and drinking is currently not allowed.
Customers are prohibited from eating or drinking on site, including in passive or shared spaces, either while
waiting for their pickup order or after receiving their pickup order. Curbside pickup, to-go orders, and delivery are
allowed. While customers wait for pickup orders, establishments must ensure that customers socially distance
and that the establishment does not exceed 20% capacity. For the most recent information on regional SAHO
definitions, restrictions and industry guidance, please access the links provided .below.
• https :// covid 19 .ca .gov /stay-home-except-for-essentia 1-needs/#regiona 1-stay-home-
orderhttps:// covid 19.ca .gov/ind ustry-gu ida nee
• https://www.sandiegocounty.gov/content/sdc/hhsa/programs/phs/community_epidemiology/dc/2019-
nCoV /health-order.html
Please remember that under the permit that was issued, you must comply with all city ordinances and state laws,
which includes any state/county health orders. Please see attached city emergency orders. Failure to comply
may result in the suspension or cancellation of the permit, possible fines, and the removal of all improvements
within the city's right-of-way. For restaurants and bars that serve alcohol, a copy of city enforcement actions will
be sent to the Department of Alcoholic Beverage Control for review and consideration.
We appreciate your attention and understanding during these unprecedented times. Should you have any
questions pertaining to this letter, please contact David Thielker, Code Enforcement Manager, via email at
Dave.Thielker@carlsbadca.gov.
Sincerely,
Jeff Murphy
Community Development Director
Attachment: City of Carlsbad Emergency Orders