Few businesses have applied for new regulations designed to make code enforcement rules easier to identify and enforce. One business, Fullerton 120 nightclub, did go through all the necessary paperwork involved in the application and though the Planning Commission approved the application, the City Council majority denied the application on appeal.

The appeal of the approval was bought to the City Council’s December 6 meeting by Tony Bushala, a local developer, who claimed that the music from the establishment exceeded the sound ordinance and that the nightclub was not a bonafide eating place.

According to the City Planning Manager Mr. Shaffer, the current Conditional Use Permit (CUP) allowed the club to be open from 6pm to 2am only. The new CUP would expand the hours so that the club could serve lunch from noon to 2pm and dinner from 6pm on. This would allow them to expand their Mexican style menu.

“The restaurant/club has been complying and has made changes to come up to codes which had not been enforced for the previous owner. All the business’ licenses are in good standing including the alcohol license which states that the business must have receipts that show the consumption of food is higher than that of alcohol,” said Schaffer.

Councilmember Ahmad Zahra asked, “In relation to this particular appeal, is the sound a factor in this appeal?”

The city planning manager said that both the old and new CUP have a sound restriction, but this application was to comply to the city request to come under new CUP standards.

Denise Casas, owner of Fullerton 120 Club, said that she spent considerable funds to soundproof the entire club. She said that she did not believe the sound was coming from her establishment as several surrounding restaurants that become nightclubs turn up the volume in the evening. “We have an officer that comes every week for an inspection to make sure we are up to code. We are open from 6pm to 2am. Our menu consists of hot wings, chicken tenders and dinner items such as taco plate, burritos, and enchiladas. We serve Mexican food.”

Casas said, “The city told us that if we wanted to comply with the new CUP and be in good standing with the city, they recommended for us to apply for the new CUP, so that is why I am here tonight.”

Mayor Jung said, “I’m a big fan of the duck test. If it looks like a duck swims, like a duck, quacks like a duck then it is probably a duck. In this particular case it probably is a nightclub and I find myself not swayed right now and I won’t be in the nearby future. I think the business model itself is concerning to me.”

Councilmember Silva said, “As long as I’ve been on the council, I don’t think we’ve been consistent with enforcing the CUP requirements that we had, so with that I would move to deny the appeal and then let’s figure out the sound ordinance.”

Mayor Jung said, “Councilmember, please, that’s not what this is about. I think simply put this is about enforcement and it’s about upholding the rules and upholding the laws that are on the books.”

Councilmember Ahmad Zahra said, “If this appeal is upheld, this business will continue operating, so the new CUP would allow them to open for lunch. I’m not sure what the benefit of this appeal would be because now we’re just forcing them to be only a nighttime activity based on the old CUP. I think we should go on to the new CUP and then really look at our own enforcement. I second the motion of Councilman Silva but I’d like to add that we would get an update in six months.”

Mayor Pro Tem Bruce Whitaker said, “I wanted to say that excessive noise anywhere in the city, there’s a term for it, it’s called disturbing the peace and when we allow liberally through CUPs for anyone to disturb the peace, we’re actually legalizing that sort of a problem. I would ask staff at this point how many downtown businesses are classified currently as nightclubs?”

Shaffer said, “I’d have to look into that. I’m actually doing an analysis of ABC licenses right now. Gathering information from department of alcohol beverage control requested by the Planning Commission.”

Whitaker said, “Many darts have been thrown at the number of nightclubs downtown whether people are actually operating as a nightclub, or a restaurant and I do note that when the overlay district was first created the idea was to have an environment for upscale dining. And so, anyone down there who is disturbing the peace regularly I’d like to see our rules and regulations and our enforcement try to end that. I understand the operator here is trying to keep the doors closed and has said that insulation has been added to the inside to prevent disturbing the peace. So, I guess that remains to be seen.”

The appeal to deny the new CUP passed 3-2 (Zahra and Silva No)

The applicant remains on the old CUP and is not required to update to the new CUP.