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Home My WebLink About2021-08-26; Oak & Elixir Entertainment License Application (District 1); Barberio, GaryTo the members of the: Cln' COUNCIL Date ~CA ¥ cc __:l CM _&_Ac:;,M -/-DCM (3) J::._ Aug.26,2021 Council Memorandum To: Honorable Mayor Hall and Members of the City Council From: Gary Barberio, Deputy City Manager, Community Services Jeff Murphy, Community Development Director Via: Geoff Patnoe, Assistant City Manager@__ Re: Oak & Elixir Entertainment License Application (District 1) {city of Carlsbad Memo ID #2021162 This memorandum provides information related to the Oak & Elixir business, located at 2917 State Street. At some point in time, Oak & Elixir changed its use from a "deli" to a "restaurant" without the benefit of required permits, to include a full kitchen and servers, resulting in the recent denial of their entertainment license application. Background The city recently received an Entertainment License Application (application) for Oak & Elixir, where they requested to have a live band in their establishment with an anticipated 150 patrons. As part of standard application review, the application and details of the request were routed to several referral departments, including the Fire and Police Departments, and the Planning and Building Divisions. Consistent with Chapter 8.09 of the Carlsbad Municipal Code (CMC), staff reviewed the application and use for compliance with the land use and zoning provisions of the applicable municipal code provisions and the Village and Barrio Master Plan. City staff also reviewed the application to ensure that the structure is suitable and safe for the proposed activities and to ensure that the occupied portions of the building provide a minimum level of safety and egress required by code. Discussion During the review of the application, staff discovered that the use and occupancy of the business did not comply with city code standards and on Aug. 19, 2021, issued a letter denying the application. The denial letter is provided in Attachment A and is summarized below. City documentation shows the historical use of property as "wine bistro, deli;" the prior tenant was Reim Wine & Bistro. This is consistent with Oak & Elixir's business license, which shows that their business operates as a "deli." Under city code (Chapter 21.04), a deli is defined as: "Selling ready-to-eat food and canned or bottled beverages to the public. Food is pre-cooked or prepared at another location and only heated or toasted on the site. No stoves or ovens for the cooking or preparation of food nor tableware or Community Services Branch Community Development Department 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-2710 Council Memo -Oak & Elixir Entertainment License Application (District 1) Aug.26,2021 Page 2 dish washing facilities (other than a standard sink) are permitted. No waiters or waitresses are employed on the premises." Based on discussions with business staff, and the description of the business provided on line, Oak & Elixir has a kitchen, and is operating the business with servers. Furthermore, the application that was submitted also identifies the use as a "restaurant" and shows a "kitchen" on the conceptual site plan. Section 21.60.010 of the CMC and section 105.1 of the California Building Code both require a building permit before any alterations or a change of type of class of use can be made to an existing building. Based on city records, staff does not see any evidence that Oak & Elixir (or Reim Wine & Bistro) secured the necessary building permits or zoning clearances for this change of use and any of the work undertaken to change the use. The change of use from a deli to a restaurant is allowed under the city's code, but in addition to the required building permits for tenant improvement work for kitchen and other improvements to the dining area, the change in use to a restaurant requires additional parking pursuant to the Village & Barrio Master Plan (VBMP). Under the VBMP, Oak and Elixir is required to provide an additional four parking spaces (VBMP section 2.6.6), or participate in the Parking In-Lieu Fee Program, at a cost of $11,240 per parking space. To legalize the change of use to a restaurant, it is also estimated that the total building permit and development impact fee total would be approximately $31,334. Please note that these preliminary amounts do not include sewer connection fees, which are based on seating. The city will need to evaluate an actual floor plan that details the seating areas to assess the sewer connection fees associated with the change of use. Next Steps Because this is a life and safety issue that could impact business patrons, employees, and other building occupants, a Notice of Violation (Warning) will be issued this week to the owner of Oak & Elixir that explains the issues, what is needed to comply and a timeframe to conform. Attachment: A. Oak & Elixir-Entertainment License Application Request Denial Letter cc: Scott Chadwick, City Manager Celia Brewer, City Attorney Ron Kemp, Assistant City Attorney Mike Strong, Assistant Director of Community Development Jason Pasiut, Building Official August 19, 2021 Carrie Hansen Laura Anne Rammel Oak+ Elixir 2917 State Street Carlsbad, CA 92008 Dear Ms. Hansen, Attachment A Page 1 of2 ( City of Carlsbad The city received of your Entertainment License application for Oak & Elixir, requesting the allowance of live music with an anticipated 100 patrons inside and 50 patrons outside. As part of standard application review, the application and details of the request were routed to several referral departments (including the Fire and Police departments, and the Planning and Building divisions). Consistent with Carlsbad Municipal Code ("CMC") Chapter 8.09, Entertainment License, Planning and Building Division staff reviewed the proposed application and usefor compliance with the land use and zoning provisions of the applicable municipal code provisions and the Village and Barrio Master Plan, as well as to ensure that the structure is suitable and safe for the proposed operation of an entertainment establishment. City documentation and historical records show that the use of the property is limited to "wine bistro, deli." Oak & Elixir's current business license also shows the use as a "deli." Under Section 21.04.106. of the CMC, a "Delicatessen" means a type of restaurant, totaling less than one thousand six hundred square feet in total floor area, selling ready-to-eat food and canned or bottled beverages to the public. Food is pre-cooked or prepared at another location and only heated or toasted on the site. No stoves or ovens for the cooking or preparation of food nor tableware or dishwashing facilities (other than a standard sink) are permitted. No waiters or waitresses are employed on the premises. Records show that neither planning or building permits were issued to allow a kitchen/cooking stations/dishwasher when Reim Wine and Bistro occupied the space and no planning or building permits have been issued since that time. Based on visual inspection (and the description of the business provided online), Oak & Elixir has a kitchen, and is operating the business with servers. Furthermore, the Entertainment License application that was submitted also reflects this activity and operation (i.e. showing the use on site as a "restaurant" and shows a "kitchen" on the conceptual site plan). This "use" inconsistency, "deli" versus "full service restaurant," prevents the City from approving this Entertainment License application. Although we have already reviewed the Entertainment License application, as a courtesy we will begin processing a refund for the $236 in fees paid to the city for the review of the Entertainment License application. You can expect a check next week. While a change of use from a deli to a restaurant is allowed under our code, it requires additional parking, building permits for tenant improvement work for kitchen and other improvements to the dining area, as well as payment of certain impact fees. The city will allow you to continue operating as a restaurant, provided diligent progress is made to secure all required permits and obtain a certificate of occupancy for the "restaurant" use. To legalize the change of use to a restaurant, we have preliminarily estimated that Community Development Department I 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-4600 I 760-602-8560 fax Attachment A Page 2 of2 the total building permit and development impact fee total would be approximately $31,334. Please note that these preliminary amounts do not include sewer connection fees, which are based on seating. The city will need to evaluate an actual floor plan that details the seating area to assess the sewer connection fees associated with the change of use. Pursuant to Table 2-4 of the Village & Barrio Master Plan, "building space may be converted from one use to another without additional parking, provided both uses have the same parking requirements set forth within section 2.6.6. If the new land use has a higher parking requirement than the existing use, 50 percent of the additional parking based on the higher parking requirement shall be provided." Table 2-3 (Parking Requirements) requires restaurant establishments to provide one parking space per 170 square feet of floor area. Delicatessens are required to provide one space per 300 square feet. Pursuant to section 2.6.6.A of the Village & Barrio Master Plan (Parking Spaced Required), "Parking requirement calculations resulting in a fraction shall be rounded up to the next whole number if the fraction is 0.5 or higher or rounded down if the fraction is below 0.5." At the "delicatessen" rate, the parking required is 8.3, which is rounded down to 8 spaces. At the "restaurant" rate, 14. 7 spaces would be required (rounded to 15). The parking rate requirements for a "deli" versus "full service restaurant" results in a difference of7 spaces. After making a 50 percent adjustment to the parking required (authorized per Table 2-4), the number of off-street parking spaces required in connection with the change of use shall not be less than 4 parking spaces. These parking spaces shall be a continuing obligation so long as the use requiring the vehicle parking continues. However, the off-street parking spaces may be satisfied though participation in the Parking In-Lieu Fee Program. As of this writing, the adopted parking in-lieu fee is $11,240 per parking space, or $44,960 total. A Code Enforcement Officer will be in touch to follow up on the details and issue a Notice of Violation (Warning) of our findings and specify a reasonable date to secure compliance. I can understand if you want to discuss this in more detail. Please feel free to call me directly at 760-602- 2721 to help you navigate your next steps. Mike Strong Assistant Director of Community Development City of Carlsbad mstrong@carlsbadca.gov