HomeMy WebLinkAboutAGENDA REPORT 2023 0801 PC SPC ITEM 08A SUPPLEMENTALMOORPARK PLANNING COMMISSION
SUPPLEMENTAL
AGENDA REPORT
TO: Honorable Planning Commission
FROM: Phil Neumann, Associate Planner I
DATE: 08/01/2023 Special Meeting
SUBJECT: Consider Resolution No. PC-2023-697, Approving Conditional Use
Permit CD-CUP-2023-0015 to Allow the Sale of Beer, Wine and Distilled
Spirits for On-Site Consumption at a Proposed 2,013 Square-Foot
Restaurant with Live Music and Billiards within an Existing Shopping
Center (Varsity Park Plaza), Located at 14711 Princeton Avenue,
Suite 1, and Making A Determination of Exemption Pursuant to
California Environmental Quality Act in Connection Therewith, on the
Application of Gerald Cucco for JR’S Sports Bar and Grill (on Behalf
of Varsity Investments LLC)
CORRESPONDENCE RECEIVED
Subsequent to the distribution of the agenda packet, the attached correspondence was
received.
ATTACHMENTS
1.Emails dated July 28, 2023, from Donald Bing
2.Email dated July 28, 2023, from Akif Ertas
3.Email dated July 28, 2023, from Gabriella Stouras
4.Email dated July 30, 2023, from Bruce Rokos
5.Email dated July 27, 2023, from Mike Whitmore
6.Email dated July 28, 2023, from Michael Navarro
Item: 8.A.
SUPPLEMENTAL
1
From: Donald Bing <donald_bing@yahoo.com>
Sent: Friday, July 28, 2023 10:10 AM
To: rdelgado@moorparkca.gov <rdelgado@moorparkca.gov>
Subject: Business application in Campus Park Plaza
Hello Ms. Delgado,
Am writing to express my opposition to an entertainment business in the mini-mall located on
Princeton between Amherst and Campus Park Drive. The Notice indicates the proposed
establishment will serve hard liquor and have live music. I have no objection to this kind of
business. In fact I enjoy such entertainment myself. But this is a quiet residential area. My
concern is that the noise from the loud music and from patrons generally will impair the quality
of life for the families with small children who live here. There is also the worry of traffic issues in
our neighborhood with respect to the serving of alcohol.
This business should be located in a commercial or major retail area, not where people live and
sleep.
Ms. Delgado, please join the residents in your district who oppose the approval of this business
application.
Thank you,
Donald Bing
6677 Westwood Street
(805) 217-3641 (text, voice)
PC ATTACHMENT 1 2
From:Donald Bing
To:Philip Neumann
Subject:Re: New Planning Commission Special Meeting Agenda for August 1, 2023
Date:Friday, July 28, 2023 11:05:21 AM
Dear Philip,
From Mike and Bonnie Whitmore's written response to the JR Sports Bar application, it is apparent the applicant plans to have
the business be a sports bar with entertainment. Any suggestion of it being a restaurant is simply pretext to satisfy ABC
requirements to run a bar/entertainment type business. I would NOT expect to enjoy a well-prepared full-course meal at this
place, like one would find at a casual restaurant (Denny's) or an upscale venue (M on High Street). Happy hour type plates, yes,
but restaurant fare, no.
Let's please not call this a restaurant.
Sincerely,
Donald Bing
On Friday, July 28, 2023 at 10:26:53 AM PDT, Philip Neumann <pneumann@moorparkca.gov> wrote:
New E-Newsletter
Good Morning, Donald,
You can access the new Planning Commission Agenda through the following link:
New Agenda
You can find more Planning Commission Agendas, Annotated Agendas, and Videos at the following link:
Planning Commission Agendas, Annotated Agendas and Video Archives
Thank you,
Philip Neumann
Associate Planner I | Community Development Department
City of Moorpark | 799 Moorpark Ave. | Moorpark, CA 93021
(805) 517-6230 | pneumann@moorparkca.gov | https://linkprotect.cudasvc.com/url?
a=https%3a%2f%2fwww.moorparkca.gov&c=E,1,1LzXvFB8yL9PLS84Go5DNQ4JkGguHpByRlzAwevVhr7RdMmtbCVLtXF-
BDu7FwUEZKqeBhAsC3wP_euiinoc52BiC3AaLcA6QAFFO0EBiFY,&typo=1
3
From: Akif E <akif.b.ertas@gmail.com>
Sent: Friday, July 28, 2023 6:27 PM
To: Moorpark <moorpark@MoorparkCA.gov>; Philip Neumann
<PNeumann@MoorparkCA.gov>
Cc: Gilbert Lozano <GLozano@MoorparkCA.gov>; Douglas Spondello
<DSpondello@MoorparkCA.gov>; Carlene Saxton <CSaxton@MoorparkCA.gov>; Shanna
Farley <SFarley@moorparkca.gov>; Douglas Spondello <DSpondello@MoorparkCA.gov>
Subject: Disturbed with Proposed CUP (Liquor, Live Music, Billiards) 14711 Princeton
Dear Moorpark Community Development Department,
I'm writing to express concerns about the proposed alcohol-serving, billiards and music venue in
our neighborhood. The operator, Gerald, has shown a historic lack of effective business conduct
in Simi Valley, which calls into question his ability to run a similar establishment here.
Our area is classified as "neighborhood commercial" and is meant to serve our community's
needs. Introducing a nightlife establishment with its late hours and loud music is unsuitable for
our residential zone and would disrupt our quiet community life. We already have a liquor store
that operates within reasonable hours without disturbing the peace.
Given the potential impacts, I propose a 90-day extension for a more thorough examination and
a presentation to the community. I urge all decision-makers to think about this from a resident's
perspective and whether they would want such an establishment in their backyard.
For the time being, I am unable to attend the meeting in person, and would like to request a dial
in number, or zoom link please. Thank you for considering my concerns.
Sincerely,
Akif Ertas
PC ATTACHMENT 2 4
From: Gabriella S <gabriella.stouras@gmail.com>
Sent: Friday, July 28, 2023 6:37 PM
To: Moorpark <moorpark@MoorparkCA.gov>; Philip Neumann <PNeumann@MoorparkCA.gov>
Cc: Carlene Saxton <CSaxton@MoorparkCA.gov>
Subject: Urgent, concerned property owner (re:proposed TJ’s bar and “grill” permit)
Hello,
I am the homeowner of the corner lot of Berkeley circle (#6606) and am extremely disturbed by the
news of the new restaurant moving in DIRECTLY behind my home. The environment the bar and
grill intends to set is not conducive to the mixed zoning of our area. This provides no benefit to our
immediate community. There is a Montessori school. Our neighborhood is full of children, working
folks (who get up early or work from home), and the elderly. A grill environment with Billiards
tables, live music, and hard alcohol right next to a residential neighborhood is beyond
inappropriate. There are many open real estate opportunities elsewhere in town that are pure
commercial zones with no residences nearby.
I am of the understanding closing time is set at 11pm. Customers will be loud. Bars/grills continue
to create noise after close due to closing the facility for the night. That means we would be
disturbed late into the night, while we are trying to put our children to bed and sleep for an early
morning commute. Or for the people that work from home, there will now be the noise from the
establishment. Pool tables and hard alcohol attract a lot of people and smoking. This is a bar under
the guise of a grill. A “grill” has no need for hard alcohol or pool tables, or to be open until 11pm.
Our bedrooms are less than 100 feet from this establishment. When we purchased this property,
we were of course aware of the plaza. But we also made ourselves aware of the zoning.
Princeton is an inherently residential area. This affects our quality of life and property values as
well - who wants to live behind a bar? This is why we moved out of Los Angeles. We wanted to
raise our family in a safe, quiet place. We have loved Moorpark and have appreciated the
swiftness with which our city government responded when un permitted shipping containers were
stored in this exact same area (behind the shops). We were so thankful, including receiving a call
from our mayor confirming immediate action would be taken (and it was).
We appreciate and value our beautiful and family oriented town. There are many new restaurants
coming to fruition - which is great - but for one to be up against a residential neighborhood is ill
conceived. I’m deeply saddened this is being considered in the first place.
For reference, Enegren (which is seemingly in a pure commercial zone) closes at 8 (Sunday’s), 9
(M-W), and 10 (Thurs-Sat). Their music also ends a couple for hours before close.
I’ve also quickly googled these two business owners who have attempted to run this SAME
business in Simi Valley and violated many rules and regulations. The City of Moorpark should have
known about this failed experiment. This is negligence at best. I am attaching the summary of this
case for your reference. Their music was amplified, they were not serving food correctly (meaning
it was truly operating more as a “bar” than a “grill”), they were purchasing alcohol incorrectly - the
list goes on and on.
I will certainly be dialing into this meeting as I’m not able to attend in person. Your consideration of
our families, property value, and quality of life is greatly appreciated.
Many thanks,
Gabriella
PC ATTACHMENT 3 5
BEFORE THE ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD
OF THE STATE OF CALIFORNIA
AB-9785
File: 47-580621; Reg: 18087019
GERALD JOSEPH CUCCO and ANTOUN JAMIL KAOUMI,
dba TJ’s Bar & Grill
5710 East Los Angeles Avenue
Simi Valley, CA 93063-5217,
Appellants/Licensees
v.
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL,
Respondent
Administrative Law Judge at the Dept. Hearing: Matthew G. Ainley
Appeals Board Hearing: December 5, 2019
Sacramento, CA
ISSUED DECEMBER 17, 2019
Appearances: Appellants: Dean R. Lueders, of ACTlegally, as counsel for Gerald
Joseph Cucco and Antoun Jamil Kaoumi,
Respondent: Matthew Gaughan, as counsel for the Department of
Alcoholic Beverage Control.
OPINION
Gerald Joseph Cucco and Antoun Jamil Kaoumi, doing business as TJ’s Bar &
Grill, appeal from a decision of the Department of Alcoholic Beverage Control1
suspending their license for 30 days (with 5 days conditionally stayed for one year
provided no further cause for discipline arises during that time) because appellant did
not operate as a bona fide eating place, violated its operating conditions, and
1 The decision of the Department, dated December 4, 2018, is set forth in the
appendix.
6
AB-9785
purchased alcohol from retail licensees.
FACTS AND PROCEDURAL HISTORY
Appellants' on-sale general license was issued on September 27, 2017. There
is no record of prior departmental discipline against the licence.
On June 4, 2018, the Department instituted a six-count accusation against
appellants charging that appellants: did not operate as a bona fide eating place, in
violation of Business and Professions Code sections 23038 and 23396; violated their
operating conditions, in violation of Business and Professions Code section 23804; and
purchased alcohol from retail licensees, in violation of Business and Professions Code
section 23402.
At the administrative hearing held on August 30, 2018, documentary evidence
was received and testimony concerning the violation charged was presented by
Department Agent Brian Huber and co-licensee Gerald Cucco.
Testimony established that on June 16, 2017, appellants executed a Petition for
Conditional License which contained nine conditions, including:
2. Full and complete meals must be offered and made available at all
times the premises is exercising the privileges of its alcoholic beverage
license, with the exception of the last ½ hour of operation each day.
5. There shall be no amplified music or other entertainment permitted in
or on the premises at any time. For purposes of this condition, “amplified”
shall mean the use of any eclectic, electronic, or other powered device
that may be used or manipulated to control the volume of music or other
entertainment.
(Exh. 2.)
Counts 1 & 2: On January 3, 2018, Agent Huber and his partner went to the
licensed premises at approximately 12:30 p.m. He ordered a whiskey and Coke from
2
7
AB-9785
the bartender and asked if he could order lunch. The bartender said they did not serve
food until after 4:30 p.m. when the cook arrived. (Finding of Fact, ¶ 5.)
Counts 3 & 4: The same scenario was repeated on January 10, 2018, and
Agent Huber was again told they did not serve food until after 4:30 p.m. when the cook
arrived. (Finding of Fact, ¶ 6.)
Count 5: On February 2, 2018, Agent Huber and his partners went to the
licensed premises at approximately 6:40 p.m. and observed a cook in the kitchen and
people eating food. A three-piece band was playing music, amplified by speakers. The
band was using a microphone and electric guitar. (Finding of Fact, ¶ 7.)
Count 6: On February 15, 2018, Agent Huber returned to the licensed premises
to conduct an inspection. He asked to see receipts for alcohol purchases and was
shown several receipts from retailers. He also observed empty beer kegs with tags
indicating they were purchased from BevMo, a retailer. (Findings of Fact, ¶¶ 8-12;
Exhs. 3-8.)
The administrative law judge (ALJ) issued his proposed decision on October 1,
2018, sustaining all six counts of the accusation and recommending a 30-day
suspension, with 5 days conditionally stayed for one year.2 (Decision, at pp. 6-8.)
The Department adopted the proposed decision in its entirety on November 28,
2018, and issued its Certificate of Decision on December 4, 2018.
Appellants then filed a timely appeal arguing that the penalty is excessive.
2 This included a 15-day suspension with 5 days stayed for counts 1 and 3, no
penalty for counts 2 and 4, a 10-day suspension with 5 days stayed for count 5, and a
15-day suspension for count 6 — with the suspensions for counts 1, 3 and 6 to run
consecutively, and the suspension for count 5 to run concurrently.
3
8
AB-9785
DISCUSSION
Appellants contend that “the penalty imposed by ABC has crossed over from
enforcing compliance to being punitive.” (AOB at p. 3.) Appellants maintain that two
violations occurring only seven days apart should not have resulted in two separate
counts and that this “cumulative penalty . . . results in a punitive penalty that does not
allow the payment of a fine and will force this young business to close.” (Ibid .)
The Board will not disturb the Department's penalty order in the absence of an
abuse of discretion. (Martin v. Alcoholic Bev. Control Appeals Bd. & Haley (1959) 52
Cal.2d 287, 291 [341 P.2d 296].) “‘Abuse of discretion’ in the legal sense is defined as
discretion exercised to an end or purpose not justified by and clearly against reason, all
of the facts and circumstances being considered. [Citations.]” (Brown v. Gordon (1966)
240 Cal.App.2d 659, 666-667 [49 Cal.Rptr. 901].) The California Supreme Court has
defined abuse of discretion as: “. . . arbitrary determination, capricious disposition or
whimsical thinking.” (Harris v. Superior Court (1977) 19 Cal.3d 786, 796 [140 Cal.Rptr.
318].)
Rule 144 provides:
In reaching a decision on a disciplinary action under the Alcoholic
Beverage Control Act (Bus. and Prof. Code Sections 23000, et seq.), and
the Administrative Procedures Act (Govt. Code Sections 11400, et seq.),
the Department shall consider the disciplinary guidelines entitled “Penalty
Guidelines” (dated 12/17/2003) which are hereby incorporated by
reference. Deviation from these guidelines is appropriate where the
Department in its sole discretion determines that the facts of the particular
case warrant such a deviation - such as where facts in aggravation or
mitigation exist.
(Cal. Code Regs., tit. 4, § 144.)
Among the mitigating factors provided by the rule are the length of licensure
4
9
AB-9785
without prior discipline, positive actions taken by the licensee to correct the problem,
cooperation by the licensee in the investigation, and documented training of the
licensee and employees. Aggravating factors include, inter alia, prior disciplinary
history, licensee involvement, lack of cooperation by the licensee in the investigation,
and a continuing course or pattern of conduct. (Ibid.)
The Penalty Policy Guidelines further address the discretion necessarily
involved in an ALJ's recognition of aggravating or mitigating evidence:
Penalty Policy Guidelines:
The California Constitution authorizes the Department, in its
discretion[,] to suspend or revoke any license to sell alcoholic beverages
if it shall determine for good cause that the continuance of such license
would be contrary to the public welfare or morals. The Department may
use a range of progressive and proportional penalties. This range will
typically extend from Letters of Warning to Revocation. These guidelines
contain a schedule of penalties that the Department usually imposes for
the first offense of the law listed (except as otherwise indicated). These
guidelines are not intended to be an exhaustive, comprehensive or
complete list of all bases upon which disciplinary action may be taken
against a license or licensee; nor are these guidelines intended to
preclude, prevent, or impede the seeking, recommendation, or imposition
of discipline greater than or less than those listed herein, in the proper
exercise of the Department's discretion.
(Ibid.)
In the decision, the Director addresses the issue of penalty at length:
PENALTY
Under Rule 144,[fn.] the standard recommended penalty for a retail-to-retail
violation is a 15-day suspension. For filing to operate a bona fide eating
place, it is a 10-day suspension and indefinitely until compliance. Finally,
for violations of conditions attached to a license, rule 144 sets forth a
15-day suspension with 5 days stayed for one year.
The Department requested that the Respondents’ license be suspended
for a period of 40 days with 5 days stayed for two years. The Department
5
10
AB-9785
calculated this by combining the foregoing recommended penalties (i.e.,
having them run consecutively). Since the Licensed Premises already
has the ability to serve food, the Department did not believe that the
indefinite portion of the food-service violation penalty should be imposed.
The Respondents suggested that a minimal penalty would be appropriate
under the circumstances. With respect to the food-service violations, the
Respondents had food available and characterized the bartender who
refused to serve it as a “rogue employee.” The retail-to-retail violations
were the result of desperation, since wholesalers and distributers refused
to sell to the Respondents. Finally, the Respondents checked with the
city before permitting amplified music, mistakenly believing that that was
enough.
The Respondents were clearly aware of their obligation to serve food,
both by statute and pursuant to the conditions. It was their responsibility
to ensure that all of their employees were aware of this obligation and
were complying with it. The bartender’s statement to the agents that food
would be available after 4:30 when the cook arrived suggests that this
was a regular practice. It is inconsistent with the actions of a rogue
employee. Having trouble purchasing alcohol at the wholesale level does
not justify purchasing alcohol at the retail level. Accordingly, some
aggravation is warranted.
Conversely, the amplified-music violation appears to be a mistake and
does not warrant aggravation. With respect to the other condition
violations, they duplicate the statutory food-service violations. A separate
penalty for these violations is not warranted.
(Decision, at p. 6.)
The Board may not disturb a penalty order unless it is so clearly excessive that
any reasonable person would find it to be an abuse of discretion in light of all the
circumstances. “If reasonable minds might differ as to the propriety of the penalty
imposed, this fact serves to fortify the conclusion that the Department acted within its
discretion.” (Harris v. Alcoholic Bev. Control Appeals Bd. (1965) 62 Cal.2d 589, 594 [43
Cal.Rptr. 633].)
The penalty here is within the bounds of the Department’s discretion. “[T]he
6
11
AB-9785
propriety of the penalty to be imposed rests solely within the discretion of the
Department whose determination may not be disturbed in the absence of a showing of
palpable abuse. [Citations.]” (Rice v. Alcoholic Bev. Control Appeals Bd. (1979) 89
Cal.App.3d 30, 39 [152 Cal.Rptr. 285].)
Appellants cite a previous Board decision (The Tiki Room, LLC (2003) AB-8084)
for the proposition that two violations (counts 1 and 3) occurring only seven days apart,
should not have resulted in two separate counts. In the Tiki Room case, the Board
relied on Harris, supra, 62 Cal.2d at p. 594, to reverse the Department’s decision. In
Harris, three minor counts were accumulated in a span of eight days to impose the
penalty of revocation. (Ibid.) The Board found that the penalty of revocation was
excessive under the circumstances, and the court sustained the Board’s decision. (Id.
at p. 595.) Notably, in Harris, the independent counts did not merit revocation. (Ibid.)
Here, by contrast, we do not have an accumulation of counts resulting in
revocation. In fact, the ALJ did not issue two separate penalties for counts 1 and 3 —
he issued a single penalty of 15-days’ suspension, with 5 days stayed, for the violation
of failing to operate as a bona fide eating place. This is not an accumulation of counts,
and is entirely within the ALJ’s discretion.
Appellants’ claim that the penalty will force the business to close is not
supported by any evidence and appears to be an emotional appeal rather than a claim
based on facts. Similarly, the assertion that the penalty will not allow for the payment
of a fine is entirely speculative and does not constitute a basis for reversal by the
Board. The Board is simply not empowered to reach a contrary conclusion from the
Department or substitute its own judgment when, as here, the penalty is reasonable
7
12
AB-9785
and supported by substantial evidence.
8
13
AB-9785
ORDER
The decision of the Department is affirmed.3
SUSAN A. BONILLA, CHAIR
MEGAN McGUINNESS, MEMBER
ALCOHOLIC BEVERAGE CONTROL
APPEALS BOARD
3This final order is filed in accordance with Business and Professions Code
section 23088, and shall become effective 30 days following the date of the filing of this
order as provided by section 23090.7 of said code.
Any party, before this final order becomes effective, may apply to the appropriate
court of appeal, or the California Supreme Court, for a writ of review of this final order
in accordance with Business and Professions Code section 23090 et seq.
9
14
15
APPENDIX
16
BEFORE THE
DEPARTMENT OF ALCOHOLIC ·BEVERAGE CONTROL
OF THE STATE OF CALIFORNIA
IN THE MATIER OF THE ACCUSATION
AGAINST:
GERALD JOSEPH CUCCO &
ANTOUN JAMIL KAOUMI
TJ'S BAR & GRILL
5710 E. LOS ANGELES AVE.
SIMI VALLEY, CA 93063-5217
ON~SALE GENERAL EATING PLACE -LICENSE
Respondent(s)/Licensee(s) .
Under the Alcoholic Beverage Control Act
VENTURA DISTRICT OFFICE
File: 47-580621
Reg: 18087019
CERTIFICATE OF DECISION
It is hereby certified that, having reviewed the findings of fact, determination of issues, and recomm~ndation in
the attached proposed decision, the Department of Alcoholic Beverage Control adopted said proposed decision
as its decision in the case on November 28, 2018. Pursuant to Government Code section 11519, this decision
shall become effective 30 days after it is delivered or mailed. .
Any party may petition for reconsideration of this decision. Pursuant to Government Code section 11521(a), the
'Department's power to order reconsideration expires 30 days after the deliv~ry or mailing of this decision, or if
an earlier effective date is stated above, upon such earlier effective date of the decision.
Any appeal of this decision must be made in accordance with Business and Professions Code sections 23080-
23089. For further information, call the Alcoholic Beverage Control Appeals Board at (916) 445~4005, or mail
your written appeal to the Alcoho~ic Beverage Control Appeals Board, 1325 J Street, Suite 1560, Sacramento,
CA95814. .
On or after January 14, 2019, a representative of the Department will contact you to arrange to
pick up the license certificate.
Sacramento, California
Dated: December 4~ 2018
~
Matthew D. Botting .
General Counsel
RECEIVED
DEC 05 2018
AlcohoRc Beverage Controt
Office of legal Services
17
BEFORE THE
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
OF THE STATE OF CALIFORNIA
IN THE MA TIER OF THE ACCUSATION AGAINST:
Gerald Joseph Cucco & Antoun Jamil Kaoumi
dba TJ's Bar & Grill
} File: 4 7-580621
5710 E. Los Angeles Ave.
Simi Valley, California 93063-5217
Respondents
}
}
}
}
}
}
}
}
}
}
}
=O=n--S=a=le'""'G .... e=n=e=ra=l=Ea=t=in.,..g __ P=-1 .... ac=e__.L=i=ce=n=s'-=--e______ }
Reg.: 18087019
License Type: 47
Word Count: 12,000 ·
Reporter:
Justyne Johnson
Kennedy Court Reporters
PROPOSED DECISION
Administrative Law Judge Matthew G. Ainley, Administrative Hearing Office,
Department of Alcoholic Beverage Control, heard this matter at Ventura~ California, on
August 30, 2018.
John P. Newton, Attorney, represented the Department of Alcoholic Beverage Control.
Dean ·R. Lueders, attorney-at-law, represented respondents Gerald Joseph Cucco and
Antoun Jamil Kaoumi. Gerald Cucco was present.
The Department seeks to discipline the Respondents' license on the grounds that, on two
separate dates, the Respondents, the holder of an on-sale general eating place license,
sold alcoholic beverages other than beer for consumption on the licensed premise while
the licensed premises were not regularly and in a bona fide manner used and kept open
for the serving of meals to guests for consumption in violation of Business and
Professions Code sections 23038 and 23396.
The Department also. seeks to discipline the Respondents' license on the grounds that, on
three separate dates, the Respondent failed to comply with a condition attached to its
license in violation of Business and Professions Code section 23804.
Finally, the Department seeks to discipline the Respondents' license on the grounds that,
on various dates, the Respondent purchased alcoholic b~verages for resale from various
retailers who did not hold a beer manufacturer's, wine grower's, rectifier's, brandy
1 All statutory references are to the Business and Professions Code unless otherwise noted.
18
Gerald Joseph Cucco & Antoun Jamil Kaoumi ·
File #47-580621
Reg.#18087019
Page2
manufacturer's, or wholesaler's license in violation of Business and Professions Code
section 23402. (Exhibit I.)
Oral evidence, documentary evidence, and evidence by oral stipulation on the record was
received at the hearing. The matter was argued and submitted for decision on August 30,
2018.
FINDINGS OF FACT
I. The Department filed the accusation on June 4, 2018 and a first amendment thereto on
August 6, 2018.
2. The Department issued a type 47, on-sale general eating place license to the
Respondents for the above-described location on September 27, 2017 (the Licensed
Premises).
3. There is no record ofpriordepartmental discipline against the Respondents' license.
4. On or about June 16, 2017, the Respondel).t executed a petition for conditional license.
(Exhibit 2.) This petition contains nine conditions, including the following: ·
2. Full and complete meals must be offered and made available at all times
the premises is exercising tli.e privileges of its alcoholic beverage license,
with the exception of the last ½ hour of operation each day.
5. There shall be no amplified music or other entertainment permitted in or
on the premises at any time. For purposes of this condition, "amplified"
shall mean the use of any electric, electronic, or other powered device that
may be used or manipulated to control the volume of music or other
entertainment.
5. On January 3, 2018, Agent Brian Huber and his partner went to the Licensed
Premises. They arrived at approximately 12:30 p.m., entered, and sat down at the bar
counter. Agent Huber ordered a whiskey and Coke from the bartender, which she served
to him. He asked ifhe could order lunch. The bartender said that they did not serve food
until after' 4:30 p.m. when the cook arrived.
6. On January I 0, 2018, Agent Huber and his partners· went to the Licensed PrelT\ises at
approximately 1:40 p.m. They entered and sat down at the bar counter. Agent Huber
· ordered a whiskey and Coke, then asked if they could order lunch. The bartender said
that the Licensed Premises did not serve food until after 4:30 p.m. when the cook arrived.
7. On February 2, 2018, Agent Huber and his partners returned to the Licensed Premises
at approximately 6:40 p.m. They entered and noticed that there was a cook in the kitchen
19
Gerald Joseph Cucco & Antoun Jamil Kaoumi
File #47-580621
Reg.#18087019
Page3
and people were eating food. A three-piece band was playing using a microphone, an
electric guitar, and speakers. The music was being amplified through the speakers.
8. On February 15, 2018, Agent Huber returned to the Licensed Premises to conduct an
inspection. He spoke to co-licensee Gerald Cucco and asked to see invoices for
purchases of alcoholic beverages. Cucco indicated that they purchased their alcohol at
Restaurant Depot, a wholesaler. He explained how he had set up an account with
Restaurant Depot. Agent Huber asked to see receipts; Cucco said that they were with his
accountant.
9. Cucco and Agent Huber went to an office. Agent Huber again asked about receipts.
Cucco pulled a number of receipts from a desk drawer. He indicated that they were
receipts from retailers. (Exhibit 3.) The receipts showed alcohol purchases from each of
the retailers.
I 0. Agent Huber went to a storage room and found several empty kegs. The kegs bore.
tags indicating that they were from BevMo, a retailer. (Exhibits 7-8.) Among the
receipts was a beer keg registration receipt from BevMo. (Exhibit 3.)
11. Agent Huber also found a notebook with various entries in it. He copied a few pages
from the notebook. (Exhibits 4-6.) The notebook listed purchases paid for in cash. It
listed the name of party paid and the amount, but did not detail any ofthe purchases.
12. Agent Huber verified that the locations listed on each of the receipts held retail
licenses.
13. Cucco testified that he checked with the City of Simi Valley to see ifthe Licensed
Premises could have amplified music. Donna Rosen, a city employee, indicated that he
could as long as he did not disturb the neighbors. He did not realize that the conditions
on the alcoholic beverage license were different than the conditions the city had imposed.
14. Cucco indicated that food was available on both January 3, 2018 and January 10,
2018. At least one person working at all times is certified to prepare food. The food is
. prepared in advance, dated, and placed in the refrigerator. It is heated up as needed. He
did not know why the agents were told they had to wait until later in the day to get food.
15. Cucco testified that he had trouble setting up accounts with wholesalers and
distributors when he first opened the business because of the previous owner's debts. He
eventually found Restaurant Depot and Bar Depot. He conceded that, when he ran out of
alcohol, he would purchase some from retailers. He has since been able to clear things up
and now only gets alcohol from distributors.
20
Gerald Joseph Cucco & Antoun Jamil Kaoumi
File #47-580621
Reg. #18087019
Page4
16. Cucco looked at the receipts seized by Agent Huber. He testified that approximately
one-third of it was for his personal use.
17. Except as set forth in this decision, all other allegations in the accusation and all
other contentions of the parties lack merit.
CONCLUSIONS OF LAW
1. Article XX, section 22 of the California Constitution and section 24200(a) provide
that a license to sell alcoholic beverages may be suspended or revoked if continuation of
the license would be contrary to public welfare or morals.
2. Section 24200(b) provides that a licensee's violation, or causing or permitting of a
violation, of any penal provision of California law prohibiting or regulating the sale of
alcoholic beverages is also a basis for the suspension or revocation of the license.
3. Section 23396 provides that no alcoholic beverages, other than beer, may be sold or
served in any bona fide public eating place for which an on-sale license has been issued
unless the premises complies with the requirements prescribed in Section 23038,
2303 8.1, or 24045 .1.
4. Section 2303 8 is a definitional section which provides that a bona fide public eating
place is one which is regularly and in a bona fide manner used and kept open for the
serving of meals to guests for compensation and which has suitable kitchen facilities
connected therewith, containing conveniences for cooking and an assortment of foods
which may be required for ordinary meals, the kitchen of which must be kept in a
sanitary condition with the proper amount of refrigeration for keeping of food on said
premises and must comply with all the regulations of the local department of health.
This section goes on to define meals as the usual assortment of foods commonly ordered
at various hours of the day and provides that the service of such food and victuals as
sandwiches or salads only shall not be deemed compliance with this requirement.
Finally, it defmes guests as people who, during the hours when meals are regularly served
therein, come to a bona fide public eating place for the purpose of obtaining, and actually
order and obtain at such time, in good faith, a meal therein.
5. Section 23804 provides that the violation of a condition placed upon a license
constitutes the exercise of a privilege or the performing of an act for which a license is
required without the authority thereof and constitutes grounds for the suspension or
revocation of the license.
21
Gerald Joseph Cucco & Antoun Jamil Kaoumi
File #47-580621
Reg.#18087019
Page 5
6. Section 23402 provides that no retail on-sale or off-sale licensee, except a daily on-
sale general licensee holding a license issued pursuant to Section 24045.1, shall purchase
alcoholic beverages for resale from any person except a person holding a beer
manufacturer's, wine grower's, rectifier's, brandy manufacturer's, or wholesaler's
license.
7. Cause for suspension or revocation of the Respondents' license exists under Article
XX, section 22 of the California State Constitution, and sections 24200(a) and (b) on the
basis that, on or about January 3, 2018 and January 10, 2018, the Respondents, the
holders of an on-sale general eating place license, served a distilled spirit, whiskey, at a
time when the Licensed Premises was not regularly and in a bona fide manner used and
kept open for the serving of meals to guests for consumption, in violation of sections
23038 and 23396. (Findings of Fact iMf 5-6.)
8. Around lunchtime on January 3, 2018 (count 1) and January 10, 2018 (count 3), Agent
Brian Huber purchased a distilled spirit and attempted to purchase food. On neither date
was food available. (Findings of Fact ,r,r 5-6.)
9. Cause for suspension or revocation of the Respondent's license exists under Article
XX, section 22 of the California State Constitution, and sections 24200(a) and (b) on the
basis that, as alleged in counts 2, 4, and 5, the Respondents permitted conduct prohibited
by the conditions attached to their license in violation of section 23804. (Findings of Fact
,r,r5-7.)
10. With respect to counts 2 and 4, the food service condition contained in the petition
for conditional license requires that full and complete meals be available at all times the
premises is exercising the privileges of its license. On January 3, 2018 and January 10,
2018, Agent Huber purchased a distilled spirit and attempted to purchase food. On
neither date was food available. (Findings of Fact ,r,r 5-6.) With respect to count 5,
although the petition for conditional license contained a condition prohibiting amplified
music or entertainment, on February 2, 2018, the Respondents permitted a three-piece
band to perform with its music being amplified through speakers. A three-piece band
was playing using a microphone, electric guitar, and speakers. The music was being
amplified through the speakers. (Finding of Fact ,r 7 .)
11. Cause for suspension or revocation of the Respondents' license exists under Article
XX, section 22 of the California State Constitution, and sections 24200(a) and (b) on the
basis that, between October 6, 2017 and January 30, 2018, the Respondents purchased
alcoholic beverages for resale from other licensees who did not hold a beer
manufacturer's, wine grower's, rectifier's, brandy manufacturer's, or wholesaler's license
in violation of section 23402. (Findings of Fact iMf 8-10, 12 & 15-16.)
22
Gerald Joseph Cucco & Antoun Jamil Kaoumi
File #47-580621
Reg.#18087019
Page6
PENALTY
Under Rule 144,2 the standard recommended penalty for a retail-to-retail violation is a
15-day suspension. For failing to operate a bona fide eating place, it is a 10-day
suspension and indefinitely until compliance. Finally, for violations of conditions
attached to a license, rule 144 sets forth a 15-day suspension with 5 days stayed for one
year.
The Department requested that the Respondents, license be suspended for a period of 40
days with 5 days stayed for two years. The Department calculated this by combining the
foregoing recommended penalties (i.e., having them run consecutively). Since the
Licensed Premises already has the ability to serve food, the Department did not believe
that the indefinite portion of the food-service violation penalty should be imposed.
The Respondents suggested that a minimal penalty would be appropriate under the
circumstances. With respect to the food-service violations, the Respondents had food
available and characterized the bartender who refused to serve it as a "rogue employee.,,
The retail-to-retail violations were the result of desperation, since wholesalers and
distributors refused to sell to the Respondents. Finally, the Respondents checked with the
city before permitting amplified music, mistakenly believing that that was enough.
The Respondents were clearly aware of their obligation to serve food, both by statute and
pursuant to the conditions. It was their responsibility to ensure that all of their employees
were aware of this obligation and were complying with it. The bartender,s statement to
the agents that food would be available after 4:30 when the cook arrived suggests that
this was a regular practice. It is inconsistent with the actions of a rogue employee.
Having trouble purchasing alcohol at the wholesale level does not justify purchasing
alcohol at the retail level. Accordingly, some aggravation is warranted.
Conversely, the amplified-music violation appears to be a mistake and does not warrant
aggravation. With respect to the other condition violations, they duplicate the statutory
food-service violation$. A separate penalty for these violations is not warranted.
ORDER
Counts 1 and 3 are sustained. With respect to these violations, the Respondents' on-sale
general eating place license is hereby suspended for a period of 15 days, with execution
of 5 days of the suspension stayed, upon the condition that no subsequent final
determination be made, after hearing or upon stipulation and waiver, that cause for
disciplinary action occurred within one year from the effective date of this decision; that
2 All rules referred to herein are contained in title 4 of the California Code of Regulations unless
otherwise noted.
23
Gerald Joseph Cucco & Antoun Jamil Kaoumi
File #47-580621
Reg.#18087019
Page?
should such determination be made, the Director of the Department of Alcoholic
Beverage Control may, in his discretion and without further hearing, vacate this stay
order and reimpose the stayed penalty; and that should no such determination be made,
the stay shall become permanent.
Counts 2 and 4 are sustained. No penalty is imposed for these violations at this time.
Count 5 is sustained. With respect to this violation, the Respondents' on-sale general
eating place license is hereby suspended for a period of 10 days, with execution of 5 days
of the suspension stayed, upon the condition that no subsequent final determination be
made, after hearing or upon stipulation and waiver, that cause for disciplinary action
occurred within one year from the effective date of this decision; that should such
determination be made, the Director of the Department of Alcoholic Beverage Control
may, in his discretion and without further hearing, vacate this stay order and reimpose the
stayed penalty; and that should no such determination be made, the stay shall become
permanent.
24
Gerald Joseph Cucco & Anloun Jamil Kaoumi
File #4 7~5 80621
Reg.#18087019
Page 8.
Count 6 is sustained. With respect to this violation, the Respondents' on-sale general
eating place license is hereby suspended for a period of 15 days.
By way of aggravation, the suspensions imposed for the violations of counts 1 and 3 and
the violation of count 6 are to run consecutively. The suspension for the violation of
count 5 is to run concurrently, such that the overall penalty in this case is a 30-day
suspension, with 5 days stayed for a period of one year. ·
Dated: October 1., 2018
cf291, Adopt
-Jtd:;· rdi2Jl
Matthew O. Ainley ·
Administrative Law Judge
□ Non-Adopt: ---~--------
From: Bruce Rokos [brucerokos@gmail.com]
Sent: Sunday, July 30, 2023 11:07 PM
To: Philip Neumann
Cc: Douglas Spondello; Carlene Saxton
Subject: On the Record Notes & Suggested Conditions for JR's Sports Bar & Grill hearing
Honorable Planning Commission and City Staff:
Regarding the proposed JR Sports Bar & Grill "restaurant" seeking a full alcohol license in the
Varsity Park Plaza, the neighbors in the area and those of us who share a back wall with the
shopping center, have many concerns. We would like you to review our concerns and the
proposed Conditions that we request you put on this project due to the unique nature of this
center and the potential issues and their negative impact on our serene lifestyle we
currently enjoy.
The neighbors are generally pro business and we intend to support this business as we have
the ones in the center now and in the past. We just want them to be equally good neighbors
and demonstrate that through their business practices.
A. The Varsity Park Plaza shopping center has had many true restaurants and various
businesses in it over the years. They have generally been a good neighbor and when issues
arise, they have been pretty quick to get them resolved, once code enforcement has been
notified. The shopping center is generally quiet with all businesses closing by 8pm to 9pm. The
noise from the center is minimal and manageable, as it has been for years. No businesses use
amplified sound, and if they did, the back doors are closed and we never hear it. There is
virtually no traffic on the parking lot roadway (alley) behind the center, which is about 20 feet
from most homes back bedrooms.
B. The incoming business owner has a history of sidestepping rules and has faced legal
sanctions due to his actions. We fear the same with this new restaurant/bar unless he is held
accountable to keep the area quiet and free of unwanted negative activites. The details
regarding the information mentioned above is available through a Google search of his
name. We fear that he will continue his history of rule breaking which will affect those
immediately in the vicinity of his bar/pool hall the most.
C. The previous restaurants in the center have held beer and wine ABC licenses and have not
been destination watering holes with activities like billiards and karaoke to keep people
entertained while they drink. The name says Bar, the layout says bar and only the ABC
declares it a "restaurant" by its liquor license designation. If the ABC recognized this as a "bar",
the city would not allow it at this site.
PROPOSED CONDITIONS:
1. Condition that the operational hours will begin with allowing them to be open 11am until 10pm
every day. If they can prove themselves to not have ANY noise issues after 120 days of being
open, consider a 60 day trial to 11pm Friday and Saturday nights only. If successful, allow those
operating hours until there have been 4 verified noise complaints to code enforcement. After
four, it will trigger a CUP review and public hearing.
(Keep in mind that once the bar closes, then the cleanup begins, the trash dumping occurs and
the employees get to their cars to leave. These potential noise making events may take up to
one hour after closing each night.)
PC ATTACHMENT 4 25
2. Condition that after 10 police calls for service, no matter what timeline, that will trigger an
automatic review of the CUP by the city.
3. Condition that after 4 verified complaints and visits by code enforcement, with no set timeline,
that will trigger an automatic review of the CUP by the city.
4. Condition that after one child is injured in the parking lot by a patron of the bar, whether a
pedestrian accident or car accident, that triggers an automatic CUP review by the City.
5. Condition that should the business owner have his ABC license revoked or suspended for
any reason, that will trigger an automatic CUP review by the City.
6. Condition that after one auto accident in the alley behind the center involving a patron, that
triggers an automatic CUP review by the City.
7. Condition that there be No amplification of the interior music and/or karaoke allowed after
9pm.
8.Condition that the 2 back doors cannot be propped open at any time during business hours.
9. Condition that there is no customer parking or no parking in the parking lot between JR’s Bar
& Grill and Amherst St. between 7PM and 7AM daily. We fear loitering, smoking/vaping (with
smoke drifting onto our properties and into our windows), loud talking, loud vehicles and general
disturbances coming from the liquor consuming patrons.
10. Condition the business owner to have mitigation measures in place to deter anyone from
loitering, playing car radios loudly, talking loudly, or smoking of anything in any area of the
parking lot. It should not be allowed for employees or patrons. We like to sleep with our
window open, and obviously that would be an issue if any of that happened.
11. Allow employee parking along the back wall and have the owner educate his employees
about being a quiet and good neighbor when leaving at the end of the night.
12. Condition the owner to Install signs for the spots along the back wall as “employee parking
only” and add the same painted on the asphalt.
13. Condition that the owner educate and train employees about how to avoid the loud dumping
of trash and bottles in the outdoor trash bins at the end of operating hours.
14. Put in speed humps along the back driveway (alley) behind the center.
15. If speed humps are not possible, then install signs indicating the speed limit to be 7mph to
get drivers attention. Place these signs at both ends of the alley.
(Note. Veteran bar patrons know the Police will sometimes be on the lookout for patrons
leaving a drinking establishment. To bypass the most obvious exit onto Amherst, patrons may
choose to drive behind the business center and exit out onto Campus Park Dr. This would start
significant new traffic never present previously.)
26
16. Condition that all truck deliveries and loading must go through the front doors of the
business not the rear doors. If allowed in the back alley, place allowable hours restrictions.
17. Condition that the business cannot have more than 2 TUPs approved per calendar year and
none on any weeknight.
18. Condition to not allow for on street parking on Amherst, Yale or Berkeley Circle
19. Condition that in the parking lot around the child care facility, install "7MPH speed limit"
signs and “Caution, Children at Play” signs
20. Install “vehicle code enforced” signs at each parking lot entrance making traffic laws
enforceable on the private property.
21. Ensure there are the “22658a signs” to ensure abandoned vehicles can be towed.
22. Maintain the existing signs on back wall for “no parking 9pm to 7am”. (An obvious conflict if
it is employee only parking and they’re open after 9pm…) These back parking spaces are not
shown on the site plan. They are the closest to our back bedroom windows.
23. Condition the Owner of property to promptly removed all dumped items from all trash bin
areas.
24. Condition the property owner to add “no dumping” signs to all trash areas.
Thank you for your consideration to find every means possible to ensure we continue to enjoy
the peaceful neighborhood we have come to love and raise our families in. We trust the
business owner would want the same consideration around his home.
In appreciation,
Bruce & Wendy Rokos
Berkeley Circle resident
4 pdf's are attached depicting various photos around the site nearest the new restaurant.
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From:Mike Whitmore
To:Philip Neumann
Subject:Response to Application for Conditional Use Permit CD-CUP-2023-0015
Date:Thursday, July 27, 2023 7:57:56 PM
I retract the following sentence I made in on the 8th page of document "Response to
Application for Conditional Use Permit CD-CUP-2023-0015”
"If JR’s Bar & Grill seemed like it was going to be in any way similar to Lucky Fools Pub – we’re
all in.”
Thank you,
Mike Whitmore
PC ATTACHMENT 5 32
From:Michael Navarro
To:Philip Neumann
Subject:Revised: Proposed conditional use permit CD-CUP-2023-0015 for 14744 Princeton Ave, ste 1.
Date:Monday, July 31, 2023 6:26:50 AM
Mr. Neumann,
Please use the following email instead of the previous on sent.
The Billboard for the notice of public hearing, and the pamphlet sent by the
city of Moorpark states: “proposed on the site: A request to allow
the on site consumption of beer, wine and distilled spirits at the proposed
2013 square-foot restaurant with live music and billiards within an existing
g shopping center, located at 14711 Princeton Ave., Suite 1.”
As a concerned citizen and retired police officer who lives within the described area of the proposed
location, that this type of business should not be placed in this shopping center for the following
reasons:
1) The proposed bar/restaurant is within 100 feet of residential homes and an educational/ daycare
center with children present.
2) It is also located within the pedestrian pathway for children using the public school bus stop
during business hours. Children would have to possibly
walk through the parking lot and past the business to go to and from the bus stop, thus possibly
putting themselves in harms way from possible DUI drivers and drunken customers.
3) Local residence use the pedestrian pathway to pass the business to go to and from the local
market on a daily basis, thus possibly putting themselves in harms way from possible DUI drivers and
drunken customers.
4) The alleyway to the rear of the Business could possibly become a nuisance for local residence due
to the patrons of the bar/restaurant from having to smoke outside of the establishment, thus using
the alleyway and possibly leaving the door open and causing noise pollution during late night hours.
My concern and opinion as a retired police officer is that this type of business should not be located
at this particular location due to the proximity of children and residents. The establishment business
plan is not family friendly and would not fit in the local area and would possibly cause future
problems with the type of clientele that would frequent the establishment. This could cause higher
crime rates.
As the city is now forewarned about the possibilities of the concerns of the citizens of the area, it
would bear some responsibility if there were to be a possible rise in crime or injuries to the residents
or children due the issuance of the conditional use permit for this business.
For the record I would like to state that I am not against a restaurant being at the location since
there has been one there since I moved to Moorpark in 2001. It is just that this type of
PC ATTACHMENT 6 33
establishment a bar/restaurant at this location is not a right fit for the local neighborhood.
Sincerely,
Michael Navarro
Sent from Mail for Windows
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