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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