Filed 5/29/15 Shadowview Corp. v City of Victorville CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



SHADOWVIEW CORPORATION,

         Plaintiff and Respondent,                                       E060404

v.                                                                       (Super.Ct.No. CIVDS1310452)

CITY OF VICTORVILLE,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. David S. Cohn,

Judge. Reversed.

         Green, De Bortnowsky & Quintanilla, Andre de Bortnowsky, Charles R. Green,

Jennifer A. Mizrahi and Staley Prom for Defendant and Appellant.

         Roger Jon Diamond for Plaintiff and Respondent.

                                                             I

                                                 INTRODUCTION

         In August 2013, the City Council of the City of Victorville, appellant, upheld a

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planning decision to revoke a conditional use permit (CUP) and a business license for the

nightclub T/Zers Sports Bar and Grill, which was operated by respondents Shadowview

Corporation (Shadowview) and George Thanos (collectively T/Zers). The City now

appeals from the superior court’s grant in November 2013 of a petition for writ of

administrative mandamus, directing the City to set aside its revocation decisions and

allowing T/Zers to continue operating. (Code Civ. Proc., §§ 904.1, subd. (a)(1), and

1094.5, subd. (h)(3).) Although we think the appeal is largely moot, we reverse the

judgment.

                                              II

                                        MOOTNESS

       During the past few years, T/Zers has been the site of numerous crimes, including

homicide. In July 2013, the City’s planning commission revoked the CUP and the

business license, which are required to operate a nightclub within 300 feet of a residence.

The planning commission’s grounds for revocation included findings that the operation

of T/Zers was a nuisance1 and was contrary to the peace, health, safety, and general




       1    The Victorville Municipal Code (VMC) section 13.02.130 defines nuisance to
include “a thing, act, occupation or use of property which does any of the following: (a)
[a]nnoys, injures, or endangers the safety, health, comfort or repose of the public:
[¶] . . . [¶] (c) [i]n any way renders the public insecure in life or in use of property.” All
references to the VMC are to the version in effect in 2013.




                                               2
welfare of the public. In August 2013, the city council upheld the planning commission's

findings and the revocations.

       T/Zers filed a petition for writ of administrative mandamus, seeking to set aside

the revocations. The trial court granted the writ without prejudice, on the grounds the

findings were not supported by the evidence, and directed the City to set aside its

revocation decisions. On appeal the City argues the trial court’s decision was not

supported by substantial evidence and should be reversed.

       We take judicial notice of the fact that the City revoked the CUP and license again

in October 2014 so T/Zers is once again closed, apparently permanently.2 (Evid. Code,

§§ 852, 859.) We asked the parties to submit supplemental briefing on the grounds that,

even if we reversed the judgment, the City has already completed the second revocation

proceeding in October 2014 and the nightclub was closed again. All we would be

deciding in this appeal is whether the nightclub should have been allowed to reopen

between November 2013 and October 2014, a period of time which has now expired. For

that reason, we still deem the issues in this case to be virtually moot.

       Both parties seem to be hoping for vindication of their positions. Even though

T/Zers is not the appellant and would prevail here if we should dismiss the case as moot,

it seeks to have an appellate decision on the merits in its favor that, presumably, it can


       2It would have been helpful for the City to have supplied this information to the
court while the appeal was pending.



                                              3
wield as a tool in future proceedings should they occur. The City, as appellant, urges the

appeal should be entertained because it involves an issue of public interest likely to recur

and because there is a material question about whether the trial court employed the proper

standard for reviewing an administrative review. We are not convinced by these

arguments. Even if we reverse the judgment, the pertinent issue is whether the second

revocation was proper based on findings made on whatever additional evidence was

developed between November 2013 and October 2014. That is not a matter for this court

to decide in this appeal. However, in the interests of justice, we will review the matter.

       After reviewing the record, we conclude there was not substantial evidence to

support the trial court granting the writ, which was only effective from November 2013

to October 2014. We reverse the judgment.

                                             III

                   FACTUAL AND PROCEDURAL BACKGROUND

       The nightclub was located at 14269 Seventh Street in Victorville, with daily hours

of operation between 11:00 a.m. and 2:00 a.m. In 2005, T/Zers received approval for

CUP No. 92-049(M) and a business license, BSL05-07398.

A. The Planning Commission Hearings and Revocations

       At the planning commission meeting on April 10, 2013, Deputy Sheriff William

Hogan raised a concern about the nightclub, which had generated 470 calls for service in

the previous 18 months. Deputy Hogan stated that the police had to be present in the

parking lot at closing time to avert trouble and that the operation of T/Zers had been

                                             4
disrupting other local businesses, and depleting sheriff’s department resources. The

managers of two nearby restaurants—Richie’s Diner and Denny’s—complained their

businesses had been adversely affected by the nightclub’s drunken patrons, causing them

to lose money, customers, and staff.

       The City began proceedings to revoke the CUP and the business license in April

2013. The notice of public hearing announced: “Numerous issues occur at the location

on a regular basis, resulting in the business being a nuisance and causing a threat to the

health and safety of residents, customers and neighboring businesses.” The present

owners of the property occupied by the nightclub, William J. and Shoshana Simon, were

not opposed to revocation because of the many problems. The public hearing, originally

scheduled for May 8, 2013, was continued twice.

       The May 2013 planning commission staff report, included the following

information: “The Sheriff’s concerns include an extremely high number of service calls

to the location; the severity of the calls; the impact to the community due to the amount

of deputies responding to the location; the potential danger to the safety of the deputies;

and the impact to the surrounding businesses and properties.” The nightclub caused a

drain on police resources. It had a history of over 900 service calls between May 2008

and May 2013, including vandalism, indecent exposure, public disturbance, petty theft,

drug crimes, assault, battery, rape, attempted murder, and two homicides. Other crimes

were resisting an officer, public drunkenness, threats, brandishing a weapon, discharge of

a firearm, carjacking, and domestic battery.

                                               5
       The report further stated: “The severity of the crimes endangers numerous people,

including the customers of the bar, the officers who are at the scene, surrounding

residents, and neighboring businesses and their customers. . . . The drunken patrons from

the bar go to these restaurants where they harass the employees, skip out on paying for

meals and drive away customers passing through on the freeway. These businesses have

had financial losses and have lost employees who do not want to work the night shift due

to T-Zers bar.”

       The report also described the problematic history of George Thanos and his

operation of other bars since 1993. The Department of Alcoholic Beverage Control

(ABC) and the fire department were investigating other violations and unsafe conditions

involving signage, graffiti, poor lighting, litter and debris, unmarked fire lanes, electrical

wiring and extension cords, fire extinguishers, exits, railings, ducts, and other hazards.

       At the hearing on May 29, 2013, several individuals spoke both for and against the

revocations, including patrons and employees of T/Zers, an adjacent property owner, and

other interested persons. The hearing was continued again until July 10, 2013, to allow

T/Zers’s attorney, Richard Ewaniszyk, additional time to prepare.

       On June 11, 2013, the city attorney, Andre de Bortnowsky, met with Thanos and

his son, Ewaniszyk, City staff, and Deputies Hogan and Waterhouse to attempt to resolve

the problems at T/Zers. Several recommendations were made but never implemented.

       In the July 2013 hearing, the City’s Director of Development made a presentation,

discussing again how the service calls involved some major crimes, and were a drain on

                                               6
City resources, as well as addressing the poorly maintained premises and the impacts to

neighboring businesses. Deputy Hogan discussed the extremely high number of service

calls, the severity of those calls, safety violations, and other disrepair at the premises.

T/Zers’s attorney made a presentation, arguing that the significant service calls were less

than 400 and the history for other businesses was comparable to the history for T/Zers.

He attempted to minimize the severity of crimes on the premises and disputed the

problems experienced by the nearby businesses, Richie’s Diner and Denny‘s.

       After considering all of the evidence received on May 29 and July 10, 2013, the

planning commission made several findings, including that numerous violations of the

City’s business license code had occurred; that T/Zers had been conducting business “in a

manner that is contrary to the peace, health, safety and the general welfare of the public

over a number of years,” thereby violating the VMC; that its conduct had “consistently

proven to be a nuisance” as defined in VMC Section 13.02.130, and was detrimental to

“the public’s health, safety and welfare,” as evidenced by the amount and types of crimes

and the testimony given by neighboring business owners. The findings are explicitly

stated in Resolution No. P-13-013, which approved revoking the CUP, pursuant to VMC

section 16-3.02.090, and the business license, pursuant to VMC section 5.04.310(6).

B. The Appeal of the Planning Decision

       T/Zers immediately appealed the planning decision, arguing it had not received

due process and the planning commission had disregarded its vested property rights. On

August 6, 2013, the city council conducted a hearing on the appeal. The city council was

                                               7
provided with all previous materials. In addition, the city council had a letter from an

adjacent property owner, Alex Rickards, in favor of denying the appeal. The

development and sheriff’s departments submitted a written response to the claims of

error, in which they disagreed that T/Zers was denied due process or deprived of a vested

property right. After a hearing at which T/Zer’s attorney made a lengthy argument, the

City adopted a resolution denying the appeal, based on substantial evidence, and

upholding the revocation of the CUP and the business license. Without a CUP or

business license and CUP, T/Zers was prohibited from carrying on any business. T-Zers

closed in August 2013.

C. Petition for Writ of Administrative Mandamus

       On August 29, 2013, T/Zers filed a petition for writ of administrative mandamus

against the City, seeking a peremptory writ setting aside the revocations, and compelling

the City to reinstate the CUP and business license. On September 3, 2013, petitioners

filed an ex parte application for stay of the administrative decisions. After the City filed

opposition with supporting declarations, the court denied the ex parte application.

       Subsequently, petitioners filed a notice of motion for order granting writ of

administrative mandamus or, in the alternative, for a temporary stay. Because the City

had not yet finished compiling the administrative record, it filed an ex parte application

seeking additional time to respond. The court ordered the City to complete and file the

administrative record. The City also filed opposition to petitioners’ motion for a

temporary stay on the grounds that (1) the court had already denied T/Zers’s ex parte

                                              8
application for a stay, and (2) notwithstanding, a stay could not be granted under Code of

Civil Procedure section 1094.5 because it would be against the public interest. The court

denied the request for a temporary stay and continued the hearing on the writ to

November 22, 2013, to give the court time to review the administrative record.

       On October 24, 2013, the City filed the administrative record. The City also filed

additional opposition to the writ petition, arguing T/Zers had received a fair hearing and

full due process; ample evidence supported the City’s findings, including that T/Zers was

a public nuisance, as that term is defined in the VMC; and the City’s findings, both at the

planning commission and city council levels, were proper under applicable case law.

T/Zers filed its reply memorandum, again arguing substantial evidence did not support

the City’s findings.

       The court conducted a hearing on November 22, 2013. The court found there was

not enough evidence to support the administrative findings and the findings were

technically deficient. The court granted the writ, without prejudice. Apparently, the

nightclub reopened until October 7, 2014, when the City again revoked the CUP and

business license by adopting Resolution No. 14-028.

                                            IV

                                      DISCUSSION

A. Standard of Review

       The relevant portions of Code of Civil Procedure section 1094.5 provide that an

abuse of discretion may be established (i) if the agency has not proceeded in the manner

                                             9
required by law, (ii) if the order or decision is not supported by the findings, or (iii) if the

findings were not supported by the evidence. T/Zers challenged the City’s administrative

decision, claiming that the hearing before the city council was not conducted properly,

that the planning commission and city council abused their discretion in that they did not

have sufficient evidence to support their findings and conclusions, and that the findings

were inadequate. The superior court considered whether the findings were adequate and

whether the findings were supported by the weight of the evidence. The court exercised

its independent judgment, given the fundamental rights at stake. (Woodward v.

Personnel Commission (1979) 89 Cal.App.3d 552, 556; Goat Hill Tavern v. City of Costa

Mesa (1992) 6 Cal.App.4th 1519, 1525.) The court commented that, even if the findings

were adequate under Topanga Assn. for a Scenic Community v. County of Los Angeles

(1974) 11 Cal.3d 506, the findings were not supported by the evidence.

       In cases involving the use of independent judgment, the trial court must afford a

strong presumption of correctness to the administrative findings, and the party

challenging the administrative decision bears the burden of proving that the findings are

incorrect—that is, the findings are contrary to the weight of the evidence. (Fukuda v.

City of Angels (1999) 20 Cal.4th 805, 816-817.) On appeal, when reviewing cases in

which the trial court used the independent judgment test to determine whether the

agency’s findings are supported by the evidence, the appellate court reviews the trial

court’s decision under the substantial evidence test. (Id. at p. 824; Bledsoe v. Biggs

Unified Sch. Dist. (2008) 170 Cal.App.4th 127, 134; Moran v. Board of Medical

                                               10
Examiners (1948) 32 Cal.2d 301, 308.) Substantial evidence is that which “amply

supports” the trial court’s findings. (Moran, at p. 313.)

B. Sufficiency of Evidence to Support City’s Findings

       The evidence in the record does not amply support the trial court’s ruling. Instead,

the evidence supports the City’s findings that T/Zers was a nuisance and a public threat.

T/Zers did not overcome the presumption of correctness to be accorded the City’s

findings.

       Between April and July 2013, the planning commission afforded T/Zers ample

opportunity and notice to contest the revocations. The City’s findings were supported by

the extensive amount of evidence presented by the planning commission. The planning

commission was not required to comply with “[f]ormal rules of evidence or procedure

applicable in judicial actions and proceedings . . . .” (Gov. Code, § 65010, subd. (a);

VMC §§ 17.108.010-17.108.050 (lack of any formal evidentiary requirements).)

       Among the City’s findings were that T/Zers had committed numerous business

license code violations (VMC § 5.04), the most serious of which was conducting business

in a manner contrary to the peace, health, safety, and general welfare of the public over

many years. The grounds for revocation of a business license include that the business is

presently a public nuisance; or the business is detrimental to public health, safety, or

welfare or a nuisance. (VMC §§ 5.04.110; 5.04.310; 13.02.130; 16-3.02.090.) Ample

evidence in the administrative record supported numerous findings, providing several

independent grounds upon which to revoke the CUP and business license.

                                             11
       The City found that T/Zers generated an extremely high number of service calls

which endangered numerous people—including customers, responding officers,

surrounding residents, and neighboring businesses and their customers. T/Zers generated

over 900 calls for service in five years and 55 calls for service between May 1 and July

10, 2013. The sheriff’s department compiled reports of repeated criminal activity—

including shootings, stabbings, homicide, attempted murder, rape, assault with a deadly

weapon, domestic violence, assault, battery, indecent exposure, petty theft, and drug

crimes. The military expressed concerns about the safety and welfare of military

personnel. Additionally, the photographic evidence presented by the sheriff’s department

showed trash, graffiti, and poorly maintained facilities on the premises, including

insufficient lighting and exposed wires. Deputy Hogan testified that he had observed

expensive liquor bottles littering the premises, presumably from T/Zers, and not from

homeless persons.

       The fire department identified many unsafe conditions, including unsafe electrical

cords, a hole in the ceiling, illegal latching devices on a door, inoperative emergency

lighting and fire extinguishers, and an exit door in need of repair. The ABC observed

violations involving graffiti, exterior lighting, and litter. The evidence confirmed there

was no successful effort to remedy the fire code violations, including the expired fire

extinguisher, inoperative emergency lighting, and unsafe electrical cords. There was also

an inadequate number of security guards, inadequate parking lot lighting, unsanitary

conditions, and untrained bartenders.

                                             12
       The evidence fully supports the City’s findings that T/Zers had a negative impact

on surrounding businesses and property. Neighboring businesses and property owners,

including Denny’s and Richie’s Diner, reported witnessing violence, hearing shootings,

and experiencing problems caused by drunk patrons. The present property owner

complained about drunk and disorderly vagabonds and the nightclub’s poorly-maintained

facilities, including observing a cat’s litter box in the kitchen oven and a hole in the roof

covered by a mixing bowl. The same evidence supported findings that T/Zers’s conduct

was a nuisance, as defined in VMC section 13.02.130, that rendered the public insecure

and violated the standards of a CUP as discussed in VMC sections 16.02.010 and

16.02.050.

       T/Zers also violated City rules for business licenses. T/Zers’s business license

was not posted, as required. Thanos was listed as T/Zers’s agent of service but was not

listed or shown on the business license.

       In contrast to the vast amount of evidence supporting the findings that T/Zers is a

nuisance and has been conducted in a manner contrary to the peace, health, safety and the

general welfare of the public, there was only a minimal amount of contradictory evidence

presented by T/Zers. A security guard claimed improvements had been made in

maintenance and safety. Another nightclub employee testified that safety had improved.

However, in the two months before revocation, there were 55 calls for service including

for one assault, two stabbings, one shooting, one weapons charge, and nine various

disturbances. There was also evidence that litter and trash in the parking lot continued to

                                              13
be a problem and Deputy Hogan observed the same dangling electrical wiring in the

parking lot the day before the July 10th revocation. The sheriff’s department provided

photographs showing other continuing violations. T/Zers did not refute the evidence that

the nightclub constituted a nuisance and was a threat to health, safety, and welfare.

       Instead T/Zers’s attorney tried to minimize the significance of the service calls but

he did not refute the fact that numerous, repeated, dangerous criminal incidents had

continued to occur. Information about service calls for other businesses was not relevant

as to whether T/Zers was a nuisance. Whether other businesses generate greater or fewer

calls did not rebut the City’s findings that T/Zers generated a high number of service calls

and constituted a nuisance. There was little evidence to overcome the presumption that

the City’s findings were supported by substantial evidence. (Fukuda v. City of Angels,

supra, 20 Cal.4th at pp. 816-817.)

C. Goat Hill

       It is clear from the record that the great weight of the evidence did in fact support

the City’s findings that T/Zers was a nuisance and was a serious threat to peace, health,

safety, and welfare. However, respondent argues that Goat Hill supports the superior

court’s decision with respect to the City’s findings. The quantity and quality of evidence

is vastly different. Here, no substantial evidence supported the superior court’s decision

to grant the writ.

       In Goat Hill, the appellate court found that, while the city had presented evidence

of complaints from neighboring residents and businesses, there was substantial evidence

                                             14
supporting the trial court’s decision because the business’s owner also presented “a great

deal of evidence,” and there was no showing by the city to distinguish complaints about

Goat Hill Tavern from other possible causes, including another bar next door. (Goat Hill

Tavern v. City of Costa Mesa, supra, 6 Cal.App.4th at p. 1531.) The owner’s evidence in

Goat Hill included: (1) a petition signed by about 1,035 persons, supporting CUP

renewal; (2) numerous letters from residents, area businesses, and civic and charitable

groups supporting CUP renewal; and (3) declarations from its janitorial company

indicating the bar had expanded its cleanup area. (Id. at p. 1524.) Goat Hill also

presented evidence that the complaints were caused by homeless persons who

congregated in a nearby parking lot, or by another bar directly adjacent to Goat Hill.

(Ibid.) Finally, Goat Hill submitted police reports of incidents at all “similar

establishments,” and over half of those had a higher number of incidents during the same

timeframe. (Id. at pp. 1524-1525.)

       In contrast, the slight evidence submitted on behalf of T/Zers did not serve to rebut

the evidence supporting the revocations and the demonstrated pattern of violence at

T/Zers, including homicide, attempted murder, and assault and battery, or to show that

multiple safety violations had been fixed. Opinions that T/Zers was “cleaner” or “safer”

were inadequate. T/Zers was also unable to point to another cause than its own

operations. Furthermore, unlike Goat Hill, where over half of all other similar businesses

had more incidents during the same timeframe, not a single “similar” business had more

calls for service than T/Zers. The severity of the calls, involving major crimes, was also

                                             15
a significant factor. This case is distinguishable from Goat Hill, both in the quantity and

quality of evidence. As the trial court recognized, the findings of the planning

commission and the City are adequate. (Topanga Assn. for a Scenic Community v.

County of Los Angeles, supra, 11 Cal.3d at p. 515; Harris v. City of Costa Mesa (1994)

25 Cal.App.4th 963, 971 [in addition to findings in the city council resolution, the court

could look to transcripts of hearings, and oral remarks made at a public hearing, which

was recorded and could be transcribed.].) The writ reversing the revocations was

improvidently granted.

                                             V

                                      DISPOSITION

       We reverse the judgment granting the writ of mandate. The CUP and the business

license should have been continued to be revoked for the relevant time period between

November 2013 and October 2014. We order the parties to bear their own costs on

appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                             J.
We concur:


HOLLENHORST
          Acting P. J.


MILLER
                          J.

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