CITY COUNCIL: Ordinance Re-Authorizing Municipal Code Section 9.16 to Allow Live Music

Meeting Date: 5 August 2008
Prepared by: Sean Conroy
Planning & Building Services Manager

City Council
Agenda Item Summary

Name: Consideration of an Ordinance re-authorizing Carmel Municipal Code section 9.16 to allow live music where alcoholic beverages are sold and/or served (1st Reading).

Description: In 2005, the City adopted Municipal Code section 9.16 to allow live music in establishments where alcohol is sold. The ordinance was adopted for a three-year period, which will expire in October 2008. This ordinance would reauthorize the ordinance for another three additional years, to October 2011.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Adopt the ordinance and hold a second reading at the Council meeting of September 9, 2008.

Important Considerations: For many decades, the City prohibited live entertainment/live music within establishments that sell or serve alcoholic beverages. Exceptions were made only for temporary events, private parties, and for Sunset Center.

In 2005, the City Council approved an ordinance allowing live music in locations where alcohol is sold and established specific requirements in order to obtain and maintain a permit. Since adoption of the ordinance, the City has approved nine permits for live music.

Decision Record: The Planning Commission recommended approval of the ordinance on 16
July 2008.

Reviewed by:

__________________________ _____________________
Rich Guillen, City Administrator Date


CITY OF CARMEL-BY-THE-SEA
DEPARTMENT OF COMMUNITY PLANNING AND BUILDING
STAFF REPORT
TO: MAYOR McCLOUD AND COUNCIL MEMBERS
FROM: SEAN CONROY, PLNG & BLDG SERVICES MANAGER
THROUGH: RICH GUILLEN, CITY ADMINISTRATOR
DATE: 5 AUGUST 2008
SUBJECT: CONSIDERATION OF AN ORDINANCE (1ST READING) REAUTHORIZING CARMEL MUNICIPAL CODE SECTION 9.16 ALLOWING LIVE MUSIC WHERE ALCOHOLIC BEVERAGES ARE SOLD AND/OR SERVED.

I. BACKGROUND/PROJECT DESCRIPTION
In 2005, the City Council adopted CMC section 9.16, Entertainment in Liquor Establishments on a temporary basis (see attached). The ordinance allows live music
within eating and drinking establishments located in the Central Commercial (CC) and/or Service Commercial (SC) Districts upon issuance of a Use Permit by the Planning Commission. Sites within the Residential and Limited Commercial (RC) and Multifamily Residential (R-4) Districts where existing restaurants and/or bars are located may also qualify. The ordinance is set to expire on 1 October 2008. The Planning Commission has issued nine use permits for live music since 2005 (see
attached). The City has received very few complaints related to live music activities.

The Planning Commission recommended that the City Council reauthorize CMC section
9.16 for another three years on 16 July 2008.

II. EVALUATION
The Council may want to discuss the following questions:
• Should live music continue to be permitted?
• Should the application and approval process be revised?
• Should the standards be revised?
Process: As established in CMC section 9.16, an applicant must submit a noise management plan that identifies all noise-sensitve uses located within 200 feet of the propoposed location and identify how the proposal will limit impacts on these uses.

The City then meets with the applicant and peforms an accoustical evaluation to establish the generally acceptable noise levels for the use. Once the accoustical evaluation has been completed, and the application is considered complete, a hearing is scheduled with the Planning Commission. The process has worked effectively and staff is not recommending any changes.

Standards: Live music activities are limited to the hours of between noon and 10:00 p.m. While there have been ocassional requests to extend these hours by applicants, staff is not recommending any changes. The few complaints the City has received regarding live music have been from events that have gone on beyond 10:00 p.m.

The standards of the ordinance establish noise limits for live music activities and identifies where the noise limits should be measured. Staff is not recommending any changs to these limitations.

Planning Commission Review: The Planning Commission recommended that the Council reauthorize the ordinance, but limit it for another three years. Even though very
few problems have arisen over the first three years of the ordinance, the Commission
wanted another chance to review it after another three years.

Economic Revitalization: As part of the City’s review of economic revitalization, a
suggestion has been made to allow live music on a 30 or 60 day trial basis, prior to
applying for a use permit. This would allow an evaluation of whether live music would
be beneficial for a business prior to paying the use permit fee ($760) and going through the formal approval process. This would also allow for neighboring property owners to evaluate potential impacts prior to a long-term approval. The Council should provide guidance on this issue.

III. RECOMMENDATION
Adopt an ordinance (1st Reading) reauthorizing CMC section 9.16 for an additional three years with recommended changes to address live music on a short-term trial basis.


CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
ORDINANCE 2008-
AN ORDINANCE OF THE CITY OF CARMEL-BY-THE-SEA REAUTHORIZING MUNICIPAL CODE SECTION 9.16 ALLOWING FOR THE PLAYING OF MUSICAL INSTRUMENTS AND OTHER LIVE ENTERTAINMENT WHERE ALCOHOLIC BEVERAGES ARE SOLD OR SERVED

WHEREAS, the City of Carmel-by-the-Sea is a unique community that prides itself on its residential character; and

WHEREAS, the City has adopted a General Plan and Municipal Code that strive to protect the village character through clear policies and regulations that guide property owners in the protection of the residential character; and

WHEREAS, on 6 September 2005, the City Council adopted an ordinance (CMC section 9.16) allowing live music in appropriate locations within the commercial district; and

WHEREAS, Carmel Municipal Code section 9.16 expires on 1 October 2008; and

WHEREAS, on 16 July 2008 the Planning Commission recommended that the City Council reauthorize CMC section 9.16 for an additional three years; and

WHEREAS, the proposed ordinance is categorically exempt from CEQA under 15305 Minor Alterations in Land Use Limitations and because application of the noise standards of 17.14.5.G as well as the required special and standard Use Permit findings would not result in a significant impact to the environment.

NOW, THEREFORE, the City Council of the City of Carmel-by-the-Sea does hereby adopt the attached ordinance (first reading).

SEVERABILITY
If any part of this ordinance, even as small as a word or phrase, is found to be
unenforceable such finding shall not affect the enforceability of any other part.

EFFECTIVE TIME PERIOD
This ordinance shall become effective thirty (30) days after final passage and adoption, or upon certification by the California Coastal Commission, which ever
occurs last.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this ___ day of ________ 2008 by the following roll call vote:

AYES: COUNCIL MEMBER:
NOES: COUNCIL MEMBER:
ABSENT: COUNCIL MEMBER:

SIGNED,

__________________________________
Heidi Burch, City Clerk

ATTEST:

________________________
SUE McCLOUD, MAYOR


Chapter 9.16
ENTERTAINMENT IN LIQUOR ESTABLISHMENTS*
Sections:
9.16.010 Definitions.
9.16.020 Dances and Other Public Entertainment.
9.16.030 Playing Musical Instruments.
9.16.035 Monitoring and Enforcement.
9.16.040 Recorded Music.
9.16.050 Exemption.
* Code reviser’s note: The provisions of Ord. 2005-04 2008- that allow live music in eating and drinking establishments shall expire on October 1, 2008 October 1, 2011, and no permits shall be issued or renewed after that date unless a successor ordinance has been adopted by the City Council.

9.16.010 Definitions.
For the purposes of this chapter the term “musical instrument” means and includes any and all instruments commonly used in orchestras, but shall not include radio or television sets. (Ord. 2005-04 § 1, 2005; Ord. 79-21 § 24, 1979; Ord. 23 N.S. § 1,
1942; Ord. 216 § 3, 1939; Code 1975 § 1002).

9.16.020 Dances and Other Public Entertainment.
Except as provided in CMC 9.16.030 and 9.16.050, it is unlawful for any person to conduct or maintain or permit to be conducted or maintained public dances or any form of entertainment in or on any premises where alcoholic beverages are sold and served to the public within a period of time starting four hours before the commencement of such dance or entertainment, and ending at 2:00 a.m. of the next calendar day following the commencement of such dance or entertainment. (Ord. 2005-04 § 1, 2005; Ord. 2003-06 § 1, 2003; Ord. 74 C.S. § 1, 1963; Code 1975 § 1000).

9.16.030 Playing Musical Instruments.
A. General Exemption for Private and/or Temporary Uses. The Director of Community Planning and Building may authorize the playing of musical instruments with or without vocal accompaniment in conjunction with the sale or serving of alcohol during private (nonpublic) events and during temporary uses/special events open to the public, located on private property. All such events shall comply with CMC 17.14.050(G)(1), noise restrictions. The Director shall authorize no more than four public events per calendar year, per property. Proposals exceeding this amount shall require a use permit consistent with all requirements established in subsection (B) of this section.

B. Special Exemption for Establishments Serving Alcoholic Beverages. Except as provided in CMC 9.16.050, it is unlawful for any person, firm or corporation engaged in the business of selling and/or serving alcoholic beverages to the public within the City to play, cause or permit to be played any musical instrument or instruments with or without vocal accompaniment in or on the premises where such alcoholic beverages are sold and/or served to the public, without first obtaining a use permit
issued by the Planning Commission. In approving such permits the Commission shall consider all of the following:

1. Use permits authorizing live music within any business establishment selling or serving alcoholic beverages shall be approved only for properties located in the Central Commercial (CC) and Service Commercial (SC) districts. Within the Residential and Limited Commercial (RC) and Multifamily Residential (R-4) districts such permits shall be approved only for existing restaurants and bars located within
hotel/motel establishments.

2. A noise management plan, submitted by the applicant, shall (a) identify all noise-sensitive uses located within 200 feet of the proposed location (e.g., residences, residential care facilities, libraries, medical facilities), (b) establish the method by which noise impacts, including, but not limited to, music and patron noise from within the facility as well as patrons/pedestrians outside of the facility on the adjacent public sidewalk/street, will be regulated to avoid disruption to the immediate neighborhood and (c) identify the method for compliance with CMC 17.14.050(G)(1), noise restrictions.

3. An acoustical evaluation shall be prepared to qualify the noise levels and to suggest appropriate attenuation measures specific to the site.

4. Music performances shall be limited to hours between noon and 10:00 p.m. daily. The Planning Commission may establish fewer hours to address specific circumstances
unique to each site and permit.

5. All conditional use permits shall require renewal every three years from the date of issue to remain valid. The Commission shall review public testimony, police reports and other available information to evaluate the success of the noise management plan as part of the renewal process. The Commission may require changes to the plan and/or new permit conditions as part of the approval. No permit shall be renewed if the authority to issue the permit has been removed through repeal, invalidation or sunset of the ordinance codified in this chapter. Live music shall cease at any location that does not have a valid, unexpired permit.

6. A summary sheet of basic use permit requirements (allowed days, allowed hours, special mitigations) shall be posted on the premises or shall be available immediately upon request by any enforcement officer of the City. Permittees shall be monitored for use permit compliance by the City. Permittees shall be informed of violations and immediate compliance shall be sought and attained. Failure to comply and/or repeated violations shall be cause for the City to schedule a revocation hearing with the Planning Commission. At such hearings the Commission may:

a. Require changes in the noise mitigation plan;

b. Establish new permit conditions on hours, days, or operational characteristics; or
c. Revoke the permit.

Any three violations within any 12-month period shall require revocation of the use permit by the Planning Commission. (Ord. 2005-04 § 2, 2005; Ord. 2003-06 § 1, 2003; Ord. 216 § 2, 1939; Code 1975 § 1001).

9.16.035 Monitoring and Enforcement.
A. Noise Limits Related to Live Music. On properties authorized to hold live music events per this chapter, the maximum noise levels allowed from live music activities located on the property shall be as follows:

1. For venues in the RC district or located within 300 feet of any R-1 district property: 50 db-A as measured at the exterior of the building or yard in which the live music is performed and no more than 45 db-A as measured at the property line of any other site in the vicinity of the use.

2. For venues on any other CC or SC district property: 55 db-A as measured at the property line.

B. Sound measurements shall be made using a sound level meter calibrated for the A-weighted scale. Periods with intermittent, exterior, peak noises from the surrounding
environment above the allowed decibel limits (e.g., passing automobiles, pedestrians in conversation) that occur while music is being played shall not be used for compliance measurements.

C. For live music venues where there is a contiguous noisesensitive use, the maximum noise level allowed from live music activities located on the property shall not exceed 40 db-A as measured inside the building occupied by the noise-sensitive use. (Ord. 2005-04 § 2, 2005).

9.16.040 Recorded Music.
It is unlawful for any person, firm, business, or corporation located in any CC, SC, RC or R-4 land use district to play or permit to be played recorded or reproduced music on private property at a volume that produces a sound level exceeding 55 db-A as measured at the property line or produces more than 40 db-A inside any building occupied by a noise-sensitive use as defined in CMC 9.16.030(B)(2). (Ord. 2005-04 § 2, 2005; Ord. 2003-06 § 1, 2003; Ord. 274 C.S. § 1, 1972; Code 1975 § 1003).

9.16.050 Exemption.
The Sunset Community and Cultural Center Theater and the attached buildings and grounds are exempt from the provisions of CMC 9.16.020 and 9.16.030; provided, however, that any such public consumption of alcoholic beverages at Sunset Community and Cultural Center allowed by this exemption shall be permitted only if it is by persons attending events booked at Sunset Center and is provided by Sunset Center-approved concessionaires. (Ord. 2005-04 § 2, 2005; Ord. 2003-06 § 1, 2003).