The provisions of this Chapter shall be known as the title and scope of the Deemed Approved Alcoholic Beverage Sale Regulations. The purpose of these provisions is to specify the title, purposes, and applicability of the Deemed Approved Alcoholic Beverage Sale regulations and to require conformity to said regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15000)

The provisions of this Chapter shall be known as the Deemed Approved Alcoholic Beverage Sale Regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15001)

The general purposes of the Deemed Approved Alcoholic Beverage Sale regulations are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations comply with the Deemed Approved performance standards at Article III of this Chapter and to achieve the following objectives:

A.

To protect residential, commercial, industrial, and civic areas and minimize the adverse impacts of nonconforming and incompatible uses;

B.

To provide opportunities for Alcoholic Beverage Sale Activities to operate in a mutually beneficial relationship to each other and to other commercial and civic services;

C.

To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels;

D.

To provide that Alcoholic Beverage Sale Commercial Activities are not the source of undue public nuisances in the community;

E.

To provide for properly maintained Alcoholic Beverage Sale establishments so that negative impacts generated by these activities are not harmful to the surrounding environment in any way;

F.

To monitor that Deemed Approved Activities do not substantially change in mode or character of operation.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15002)

A.

To Which Property Applicable. The Deemed Approved Alcoholic Beverage Sale regulations shall apply, to the extent permissible under other laws, to all Legal Nonconforming Alcoholic Beverage Sale Commercial Activities within the city.

B.

Duplicated Regulation. Whenever any provision of the Deemed Approved Alcoholic Beverage Sale regulations and any other provision of law, whether get forth in this code, or in any other law, ordinance, or resolution of any kind, imposes overlapping or contradictory regulations, or contain restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in the Deemed Approved Alcoholic Beverage Sale regulations.

C.

Relationship to the Zoning Regulations. The Nonconforming Use provisions of the zoning regulations including, but not limited to, Sections 17.114.020, 17.114.050B, 17.114.070(A)(4), 17.114.080(A)(1) and (2), shall apply to the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. No. 12899 § 4, Exh. A, 2008; Ord. 11624 § 2, 1993: prior planning code § 15003)

There is created an Alcoholic Beverage Sales Administrative Hearing Officer. The Alcoholic Beverage Sales Administrative Hearing Officer shall be a city staff person and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance of particular sites as appropriate. This Section is not intended to restrict the powers and duties otherwise pertaining to other city officers or bodies, in the field of monitoring and ensuring the harmony of Alcoholic Beverage Sale Commercial Activities in the city. These parties shall have the powers and duties assigned to them by the Planning Code, by the zoning regulations, by other codes and ordinances, by the City Charter, or by valid administrative authority.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15010)

The provisions of this article shall be known as the definitions. The purpose of these provisions is to promote consistency and precision in the interpretation of the Deemed Approved Alcoholic Beverage Sale regulations. The meaning and construction of words and phrases as hereinafter set forth shall apply throughout the Deemed Approved Alcoholic Beverage Sale regulations, except where the context of such words or phrases clearly indicates a different meaning or construction.

(Ord. 11624 § 2, 1993: prior planning code § 15100)

As used in this Chapter:

"Alcoholic beverage" means alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances, and sales of which requires a State Department of Alcoholic Beverage Control license.

"Alcoholic Beverage Sales Commercial Activity" means the retail sale, for on- or off-premises consumption, of liquor, beer, wine, or other alcoholic beverages, excluding Full-Service Restaurants and Limited-Service Restaurants and Cafes that comply with the below-listed definition of Full-Service Restaurant or Limited-Service Restaurant and Cafe.

"Condition of approval" means a requirement which must be carried out by the activity in order to retain its Deemed Approved Status.

"Deemed Approved Activity" means any Legal Nonconforming Alcoholic Beverage Sales Commercial Activity, as defined in this Section, in existence immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations shall be considered a Deemed Approved Activity as long as it complies with the Deemed Approved performance standards as set forth in Section 17.156.090, and shall no longer be considered a Legal Nonconforming Activity.

"Deemed Approved Status" means the status conferred upon a Deemed Approved Activity. Deemed Approved Status replaces legal nonconforming status.

"Full-Service Restaurant" means any activity described in Oakland Planning Code Section 17.10.272.

"Illegal activity" means an activity which has been finally determined to be in noncompliance with the Deemed Approved performance standards in Article III of this Chapter. Such an activity shall lose its Deemed Approved Status and shall no longer be considered a Deemed Approved Activity.

"Legal Nonconforming Alcoholic Beverage Sales Commercial Activity" or "Legal Nonconforming Activity" means an Alcoholic Beverage Sales Commercial Activity which was a nonconforming use pursuant to the Nonconforming Use Regulations in Chapter 17.114, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in the exercise of the rights and privileges conferred by the license, at a time immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations. Such an Activity shall be considered a Deemed Approved Activity, and shall no longer be considered a Legal Nonconforming Activity, except such activity shall be subject to those zoning regulations relating to nonconforming uses as specified in Section 17.156.040C, as of the effective date of the Deemed Approved Alcoholic Beverage Sale regulations.

"Limited-Service Restaurant and Cafe" means any activity described in Oakland Planning Code Section 17.10.274.

"Officer" means Administrative Hearing Officer, as provided for at Section 17.156.050.

"Performance standards" means regulations prescribed in the Deemed Approved Performance Standards in Article III of this Chapter.

"Premises" means the actual space within a building devoted to alcoholic beverage sales.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13527, § 2, 4-2-2019; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12154 § 2, 1999: Ord. 11624 § 2, 1993: prior planning code § 15100—15120)

The provisions of this article, shall be known as the Deemed Approved performance standards. The purpose of these standards is to control dangerous or objectionable environmental effects of Alcoholic Beverage Sales Commercial Activities. These standards shall apply to all Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. 11624 § 2, 1993: prior planning code § 15200)

An activity shall retain its Deemed Approved Status only if it conforms with all of the following Deemed Approved performance standards:

A.

That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area;

B.

That it does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area;

C.

That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests;

D.

That it does not result in violations to any applicable provision of any other city, state, or federal regulation, ordinance or statute;

E.

That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.

(Ord. 11624 § 2, 1993: prior planning code § 15210)

The provisions of this article shall be known as the Deemed Approved Status procedure. The purpose of these provisions is to: (A) provide notice of Deemed Approved Status upon Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations; (B) prescribe the procedure for the imposition of conditions of approval upon these activities; and (C) prescribe the procedure for appealing conditions of approval or the revocation of a Deemed Approved Status.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11624 § 2, 1993: prior planning code § 15300)

All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations shall automatically become Deemed Approved Activities as of the effective date of the Deemed Approved Alcoholic Beverage Sale regulations and shall no longer be considered Legal Nonconforming Activities. Each such Deemed Approved Activity shall retain its Deemed Approved Status as long as it complies with the Deemed Approved performance standards at Section 17.156.090.

(Ord. 12154 § 3, 1999: Ord. 11624 § 2, 1993: prior planning code § 15310)

The Officer shall notify the owner of each Deemed Approved Activity, and also the property owner and occupant if not the same, of the activity's Deemed Approved Status. Such notice shall be sent via U.S. mail; shall include a copy of the performance standards of Article III of this Chapter with the requirement that these be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review; notification that the activity is required to comply with all these same performance standards; that a review fee is required, and the amount of such fee provided in the master fee schedule; and that the activity is required to comply with all other aspects of the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15320)

The provisions of Sections 17.156.130 through 17.156.190 shall outline the process by which Deemed Approved Activities are required to be reviewed.

(Ord. 11624 § 2, 1993: prior planning code § 15330)

Upon receiving a complaint from the public, Police Department, or any other interested party that a Deemed Approved Activity is in violation of the performance standards at Section 17.156.090, and once it is determined by the City that violations appear to be occurring, then the Deemed Approved Status of the Deemed Approved Activity in question shall be reviewed by the Administrative Hearing Officer at a public hearing. Notification of the public hearing shall be in accordance with Section 17.156.180.

The purpose of the public hearing is to receive testimony on whether the operating methods of the Deemed Approved Activity are causing undue negative impacts in the surrounding area. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Administrative Hearing Officer for his or her consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. At the public hearing, the Administrative Hearing Officer shall determine whether the Deemed Approved Activity conforms to the Deemed Approved Performance Standards set forth in Section 17.156.090 and to any other applicable criteria, and may continue the Deemed Approved Status for the activity in question or require such changes or impose such reasonable Conditions of Approval as are in the judgment of the Administrative Hearing Officer necessary to ensure conformity to said criteria and such conditions shall be based on the evidence before the Officer. The decision of the Officer shall be based upon information compiled, by staff and testimony from the business owner and all other interested parties. New conditions of approval shall be made a part of the Deemed Approved Status and the Deemed Approved Activity shall be required to comply with these conditions. The determination of the Officer shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.156.160. Any party seeking to appeal the determination will be limited to issues and/or oral, written, and/or documentary evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 11624 § 2, 1993: prior planning code § 15340)

In the event of a violation of any of the provisions set forth in Sections 17.156.010 through 17.156.140 of these regulations, or upon evidence that there has been a failure to comply with any prescribed condition of approval, the Officer may hold a public hearing. Notification of the public hearing shall be in accordance with Section 17.156.180.

The purpose of this public hearing is to receive testimony and determine whether violations to any conditions of approval attached to the site have occurred. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Administrative Hearing Officer for his or her consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Officer may add to or amend the existing conditions of approval based upon the oral, written, and/or documentary evidence presented; or alternatively may revoke the Deemed Approved Activity's Deemed Approved Status. The determination of the Administrative Hearing Officer shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.156.160. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo. The decision of the Planning Commission shall be final unless appealed to the City Council in accordance with Section 17.156.170.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 11624 § 2, 1993: prior planning code § 15350)

Within ten (10) calendar days after imposition of conditions of approval on a Deemed Approved Activity or the revocation of Deemed Approved Status, an appeal may be taken to the City Planning Commission by the Deemed Approved Activity owner or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the City. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Officer or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the Administrative Hearing Officer prior to the close of the public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal and the required appeal fee in accordance with Section 17.156.190, the Secretary to the Planning Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.

During the hearing on the appeal, the appellant will be limited to issues and/or oral, written, and/or documentary evidence presented to the Administrative Hearing Officer prior to the close of the public hearing on the item and raised in the appeal itself, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Planning Commission shall determine whether the established use conforms to the applicable Deemed Approved performance standards and/or conditions of approval, and may continue or revoke a Deemed Approved Status; or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said performance standards. The decision of the Planning Commission on the appeal to the conditions of approval imposed by the Administrative Hearing Officer shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11624 § 2, 1993: prior planning code § 15360)

Within ten (10) calendar days after the date of a decision by the City Planning Commission to revoke a Deemed Approved Status, an appeal from said decision may be taken to the City Council by any interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal and an appeal fee in accordance with Section 17.156.190, the Council shall set the date for consideration thereof. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the owner of the Deemed Approved Activity; the property owner; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the time, date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item and raised in the appeal itself, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the Deemed Approved Activity conforms to the applicable Deemed Approved performance standards, and may approve or disapprove the revocation or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said standards. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11624 § 2, 1993: prior planning code § 15370)

The Officer shall notify the owner of each Deemed Approved Activity, and also the property owner and occupant if not the same, of the time and place of the public hearing. Such notice shall be sent via U.S. mail, and shall include notification that the Deemed Approved Status of the Deemed Approved Activity will be considered before the Officer. The public hearing shall be noticed by posting notices on the premises of the subject property; notice shall also be given by mail or delivery to all owners and occupants of real property in the city within three hundred (300) feet of the subject property; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing, if such is to be held. Fees for notification shall be in accordance with Section 17.156.190 and paid for by the Deemed Approved Activity in question.

A.

Notice on Site. A city-provided notice shall be posted on the premises of the subject activity, placed in the window of the activity (if a window facing the street is not present, then the placard will be required to be posted onto the exterior of the building). All notices shall advertise the time, date, purpose and location of the public hearing for each particular site. All notices shall be given not less than seventeen (17) days prior to the date set for the hearing.

B.

Notice by Mail. Notice by mail is deemed given on the date the notice is placed into the U.S. mail system.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12154 § 4, 1999: Ord. 11624 § 2, 1993: prior planning code § 15380)

Fee, and regulations pertaining to fees, including the review, notification, appeal, and reinspection of Deemed Approved Activities shall be in accordance with the city master fee schedule.

(Ord. 11624 § 2, 1993: prior planning code § 15400)

The provisions of this article shall apply to the enforcement of the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. 11624 § 2, 1993: prior planning code (part))

All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. 11624 § 2, 1993: prior planning code § 15500)

A.

Infractions. Any person who violates, causes, or permits another person to violate any provision of these regulations is guilty of an infraction unless otherwise provided.

B.

Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, or caused by such violator and shall be punishable accordingly.

C.

Any Violation a Public Nuisance. In addition to the penalties provided in this Section, any use or condition caused or permitted to exist in violation of any of the provisions of this Chapter shall be and is declared to be a public nuisance and may be summarily abated as such by the city.

D.

Injunction as Additional Remedy. Any violation of any provision of these regulations shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

E.

Penalties. Any person convicted of an infraction under the provisions of this Section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the second conviction within a one-year period may be charged by the City Attorney or District Attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law.

F.

Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of the Deemed Approved Activity. Fees shall be in the amount described in Section 17.156.190 for charged reinspections. The inspection official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15510)

The city shall designate the appropriate personnel to enforce the provisions of these regulations.

(Ord. 11624 § 2, 1993: prior planning code § 15520)

The officials responsible for enforcement of the Planning Code, or their duly authorized representatives, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner, whenever they have cause to suspect a violation of any provision of these regulations, or whenever necessary to the investigation of violations to the Deemed Approved performance standards or conditions of approval prescribed in these regulations. An owner or occupant or agent thereof who refuses to permit such entry and investigation shall be guilty of infringing upon the violations and penalties as outlined in Section 17.156.220 and subject to related penalties thereof.

(Ord. 11624 § 2, 1993: prior planning code § 15530)