Filed 7/3/13 Circle K Stores v. City of San Buenaventura CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

CIRCLE K STORES, INC.,
Plaintiff and Appellant,

v.

CITY OF SAN BUENAVENTURA,
Defendant and Respondent. 2d Civil No. B243543 (Super. Ct. No. 56-2011-00397075- CU-WM-VTA) (Ventura County)

Circle K Stores, Inc. (Circle K) appeals the denial of its petition for a writ of administrative mandate (Code Civ. Proc., § 1094.5) seeking to compel the City of San Buenaventura (the City ) to set aside its revocation of a permit for the sale of alcoholic beverages. Circle K contends the revocation was in viola tion of the City's municipal code and was based on incorrect legal a dvice given by City staff. We affirm.
FACTS AND PROCEDURAL HISTORY Circle K owns and operates four conv enience stores in the City, one of
which is located at 3506 East Ma in Street (the store). Since at least July of 1994, Circle K has been licensed by the California Depart ment of Alcoholic Beverage Control (ABC) to sell alcoholic beverages at the store. In January of 2006, the City issued Circle K a "deemed approved" permit (permit) for the sale of alcoholic beverages. The permit was renewed every year until the subject revocation in May of 2011.2 The permit was issued by operation of law pursuant to Chapter 24.460 of
the San Buenaventura Munici pal Code (SBMC), which was enacted in October 2005. The law provides that all es tablishments already operati ng under a valid ABC license were entitled to a conditional use permit allo wing them to continue selling alcoholic beverages, subject to certain st andards. (SBMC, § 24.460.310.) 1 Those standards include requirements that th e establishment operate in strict compliance with the Alcoholic Beverage Control Act (ABCA) (B us. & Prof. Code, § 23000 et seq.), and correct any conditions deemed to be nuisances. (§ 24.460 .410.) The ordinance also provides that the permit may be revoked or modified for sufficient cause as provided in
section 24.570.100. On March 11, 2005, July 6, 2007, and May 6, 2010, the Ventura Police Department conducted minor decoy operations at the store in c onjunction with City Alcohol Enforcement Officer Derek Donswyk. On each occasion, a Circle K employee sold beer to the minor decoy. All three employees were cited and later convicted of selling alcohol to a minor (Bus. & Prof. Code , § 25658, subd. (a).) Officer Donswyk left
his business card with Circle K's store manager after each incident and urged management to contact him to discuss the actions it might take to avoid any further
violations. No one from Circle K ever contacted the officer. On July 21, 2010, the City sent a memorandum letter notifying Circle K of its intent to revoke the permit based on th e minor decoy operations. The letter notified Circle K that its "deemed approved status" would be reviewed by the City's Planning Commission at a public hearing to be held in City Council Chambers on August 31,
2010. The letter further indicated that Ci rcle K's deemed appr oved status could be revoked at that time, which would require Circle K to ap ply for a new conditional use permit through the planning commi ssion in order to continue selling alcoholic beverages.
Circle K was also notified it could instead apply for a conditional use permit through the City's planning division.

1 All further undesignated code references are to the SBMC.3 In the weeks prior to the scheduled hearing, the parties engaged in extensive written and oral communication rega rding a possible modifi cation of the permit in lieu of revocation. The City proposed adding conditions that Circle K refrain from offering any single sales of beer or malt li quor, place locking devices on the store's beer coolers, and install digital security cameras. 2 The City also proposed a requirement that all store employees undergo ABC training. Circle K offered a counterproposal of conditions that would apply to a ll four of its stores in Ventur a. Those conditions did not, however, include any provisions that Circle K refrain from offering single sales of beer or installing locks on the store's beer coolers.
When the matter was called for heari ng, a 60-day continuance was granted at the parties' request based on their repres entation that they we re working toward a resolution. During th e continued negotiations, the City in formed Circle K's attorney that City staff could only support a modification of the permit in lieu of revocation if the conditions included a prohibiti on on single sales of both beer and malt liquor and the installation of locking devices on all beer c ooler doors. Circle K offered that it was prepared to accept the condition that it place locking devices on the beer cooler doors if the City agreed to accep t the less-restrictive condition that Circle K merely refrain from selling single cans of beer in containers of 16 ounces or less that are normally sold in multi-package containers. There were no further communications between the parties prior to the continued planning commission hearing. At th at hearing, the parties reported that they had been unable to ag ree on a modification of the permit, specifically with regard to the single sales of beer. In response to qu estioning from the commissioners, Officer Donswyk and the City attorney stated that any conditions included in a modification of the permit would only be enforceable throug h a subsequent revoca tion proceeding.

2 The conditions in addition to ABC tr aining were prompted by evidence indicating that a highly disproportionate am ount of police resources were expended in responding to service calls from the store re garding thefts of beer and disturbances involving intoxicated individuals.4 The planning commission ultimately ad opted a resolution revoking Circle K's permit. The planning commi ssion found that Circle K ha d failed to operate the store in strict compliance with th e ABCA by selling alcohol to mi nors in violation of section 25658, subdivision (a) of the Business and Professions Code. The planning commission further found that "Circle K requires a disp roportionate amount of police resources in order to mitigate incidents requiring a law enforcement response -- over the 12 month period ending July, 2010, the Ventura Polic e Department responded to 48 calls for service to Circle K; of those 48 calls, 19 were thefts of beer ('beer runs') and 29 were disturbances involving intoxica ted subjects, panhandlers and fi ghts. This is detrimental to the public safety and constitutes a nuisance." In its appeal to the C ity Council, Circle K cont ended among other things that the City and planning commission had acted in violation of Ci rcle K's due process rights. Circle K asked the City Council to reverse the decision and permit modification of the permit with several additional conditio ns, none of which w ould have required Circle K to refrain from selling single cans of beer in any size or to keep the beer cooler
doors locked at all times. Prior to the scheduled evidentia ry hearing, Circle K offered that it was willing to lock th e store's beer coolers from 2: 00 a.m. to 6:00 a.m. Following an evidentiary hearing, the City Coun cil adopted a resolution revoking the permit. In inde pendently deciding whether to re voke the permit rather than modify it, the City Council found "there is little factual basis for believing Circle K's representations that it will change its business pr actices to eliminate the sale of alcohol to minors, and the City Council expressly finds that Circle K's testimony and evidence in this regard are not credible. Circle K has repeatedly demonstrated that it is neither willing nor capable of responsibly managing alcohol sales at its 3506 E. Main Street
location. This track record provides ample factual support for the City Council's decision to revoke rather than modify the deemed-approved permit. The City Council recognizes that Circle K may ultimately develop and propose manageme nt systems to address the problems specific to this location, and accord ingly this finding and conclusion is without5 prejudice to Circle K's ability to apply fo r an appropriately conditioned new alcoholic beverage establishment conditional use permit pursuant to the City's municipal code." In rejecting Circle K's claim that it was denied a fair hearing, the City Council found no merit in the argument that th e City was required to issue a "notice of
violation" as referenced in section 24.460. 660. The City Council further found that Circle K was in any event provided sufficien t notice of the revocation proceedings. The City Council also rejected the claim that the planning commission's decision was based on erroneous legal advice that the permit could not be modified because the City attorney corrected planning staff's rema rks to that effect and "any prejudice was mitigated by virtue of the appeal to the City Council, and the clear acknow ledgment by the City Council of its authority to modify the deem ed approved permit should it so desire." Circle K then filed a petition for a writ of mandate under Code of Civil
Procedure section 1094.5. Circle K also a pplied for a stay to prevent the City from enforcing the resolution to re voke the permit. Following a h earing, the application was denied on the court's findings that (1) any further stay of the resolution would be against the public interest; and (2) Circle K had faile d to establish a probability of prevailing on the merits of its writ petition. After Circle K filed an amended petiti on, the court proceeded to hear the matter on the merits based on the parties' brie fing and the administrative record. In its ruling, the court declined to decide whethe r the City was required to issue a formal "notice of violation" because "[e]ven acceptin g Circle K's interpretation, the court finds that the police department's actions substa ntially complied with the requirements of
SBMC section 24.460.640." In rejecting Circle K's claim that it did not receive a fair hearing because City staff gave the planning commissi on incorrect legal advice regarding the enforceability of the conditions of a modified permit, the court reas oned: "While it may be true that an erroneous interpretation of the ordinance was advanced on behalf of the City at the hearing before the Planning Co mmission, Circle K appealed the Planning Commission's determination to the City Coun cil. The City Council's determination6 superceded [ sic ] that of the Planning Commission. [¶ ] The City Council was not misled. Circle K alerted the City Council to its obj ection to the disputed advice, and the City Council acknowledged Circle K' s contention in its resolution re voking the use permit. . . . The resolution contains the City Council's 'clear acknowledgmen t . . . of its authority to modify the deemed approved pe rmit should it so desire.' [C itation.] However, it did not. It expressly considered whether a modifica tion of the permit terms was warranted, and found it was not because Circle K had engaged in the illegal sale of an alcoholic beverage to an underage person and, furt her, that Circle K had a 'histo ry of repeat violations and the maintenance of nuisance conditions.' [C itation.] Thus, the City Council conducted
its de novo review with a full awareness of the bad advice given to the Planning Commission and a correct understanding of its au thority." The court proceeded to deny the petition for a writ of mandate, and j udgment was entered accordingly.
DISCUSSION Circle K contends its petition for a writ of mandate should have been granted because the City revoked its permit in violation of Circle K's rights to due process and a fair hearing. Circle K claims the City violated its own municipal code by failing to issue a "notice of violation" under section 24.460.660. Circle K further argues it was denied a fair hearing because the revo cation was based on erroneous legal advice given by City staff. Ne ither claim has merit. "A trial court may issue a writ of ad ministrative mandate where an agency has (1) acted in excess of its ju risdiction, (2) deprived the petitioner of a fair hearing, or (3) committed a prejudicial abuse of discreti on. (Code Civ. Proc., § 1094.5, subd. (b).) 'Abuse of discretion is established if the [a gency] has not proceeded in a manner required by law, the order or decision is not supported by the findi ngs, or the findings are not supported by the evidence.' ( Ibid. )" ( Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169 ( Clark ).) The question whether Circ le K was deprived of a fair hearing "is one of law, which we review de novo: '"There mi ght be foundational matters of fact with respect to which the trial court's findings w ould be conclusive on a ppeal if supported by7 substantial evidence. Howe ver, the ultimate questions, wh ether the agency's decision was . . . unlawful or procedurally unfair, are esse ntially questions of law. With respect to these questions the trial and appellate courts perform essentially the same function, and
the conclusions of the trial court are not co nclusive on appeal." . . . The review of procedural issues, whether presented in ma ndamus proceedings br ought under Code of Civil Procedure section 1085 or 1094.5, should be the same. That is, foundational factual findings must be sustained if supported by substantial evidence ; however, the ultimate
determination of whether the administrative proceedings were fund amentally fair is a question of law to be decided on appeal.' [Citations.] The tria l court's 'fair hearing finding was a conclusion of law, not a finding of fact, and requires a de novo review of
the administrative record .' [Citation.]" ( Clark, supra , 48 Cal.App.4th at pp. 1169-1170, fn. omitted.) Circle K asserts that the City was re quired to issue a "notice of violation" under section 24.460.660, 3 prior to initiating revocation proceedings. The City Council
concluded that section 24.460.660 does no t apply where, as here, the City is contemplating revocation of a permit to sell alcoholic beverages under section 24.460.640. Rather, such actions are govern ed by section 24.570. 100, which provides that a permit may be revoked upon a finding (1) "That one or more of the conditions imposed on the granting of such permit have not been complied with ;" or (2) "That the use or development for which the permit was granted is being conducted, operated, or
maintained in a manner detrimen tal to the public health or safety or in a manner that otherwise constitutes a nuisance." The City Co uncil further found that Circle K had in any event been provided sufficient notice of the revocation proceedings.

3 SBMC section 24.460.660 states: "Where the police department determines that an alcoholic beverage establis hment is being operate d in violation of the provisions of this chapter including, but not limited to, any of the requirements and conditions of the use permit issued to such esta blishment in the manner provided by this chapter or chapter 24.520 of this division, the department shall ca use a notice of violation to be issued to the permittee that describes the nature of the viol ation, the corrective action to be taken, and the time within the correcting action must be completed. However the issuance of a notice of violation shall not be a condition precedent to the assessment of a civil penal or a criminal prosecution as provided for by this article."8 There was no error in these finding s. We must give "considerable deference" to the City 's interpretation of its own ordina nces, particularly those involving issues of notice. ( TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1371; Citizens for Responsible Equitable Envi ronmental Development v. City of San Diego (2010) 184 Cal.App.4t h 1032, 1047.) Even if the City was required to issue a "notice of violation" under section 24.460.660, we agree with the tria l court that the City effectively provided such notice here. Circ le K was informed that it had violated the conditions of its permit by se lling alcohol to a minor. Moreover, Circle K was offered a
solution that would have avoi ded revocation proceedings alt ogether. Circle K, however, chose to reject that solution. Under the circumstances, Circle K cannot be heard to complain that it did not receive a formal "no tice of violation" under section 24.460.660.
Circle K also fails to demonstrat e the decision to re voke the permit was based on an error of law. Even if City staff erred in advising the planning commission that the conditions of a modified permit w ould be unenforceable absent new revocation proceedings, the planning commission's decision to revoke the permit rather than modify it was superseded by the City Council's de novo review. (§ 24.565.060.) Whether the City Council relied on the same erroneous advi ce is of no moment because it is apparent that the advice played no part in its decision to revoke rath er than modify the permit. Rather, the City Council expressly relied on a finding that Circle K was "neither willing nor capable of responsibly managing alcohol sale s at its 3506 E. Main Street location."
Circle K's claim that it was denied a fair hearing accordingly fails. The judgment is affirmed. Costs are awarded to the City.
NOT TO BE PUBLISHED.

PERREN, J. We concur:

GILBERT, P. J.
YEGAN, J.9 Mark S. Borrell, Judge
Superior Court County of Ventura

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Solomon, Saltsman & Jamieson, R. Bruce Evans, Ryan M. Kroll, D. Andrew Quigley for Appellant. Ariel Pierre Calonne, C ity Attorney, Jennifer Lee, Assistant City Attorney, for Respondent.