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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


CIRCLE K STORES, INC.,                                                     2d Civil No. B243543
                                                                     (Super. Ct. No. 56-2011-00397075-
     Plaintiff and Appellant,                                                  CU-WM-VTA)
                                                                              (Ventura County)
v.

CITY OF SAN BUENAVENTURA,

     Defendant and Respondent.



                   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 violation of the City's municipal
code and was based on incorrect legal advice given by City staff. We affirm.
                                FACTS AND PROCEDURAL HISTORY
                   Circle K owns and operates four convenience stores in the City, one of
which is located at 3506 East Main Street (the store). Since at least July of 1994, Circle
K has been licensed by the California Department 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.
              The permit was issued by operation of law pursuant to Chapter 24.460 of
the San Buenaventura Municipal Code (SBMC), which was enacted in October 2005.
The law provides that all establishments already operating under a valid ABC license
were entitled to a conditional use permit allowing them to continue selling alcoholic
beverages, subject to certain standards. (SBMC, § 24.460.310.)1 Those standards
include requirements that the establishment operate in strict compliance with the
Alcoholic Beverage Control Act (ABCA) (Bus. & 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 conjunction 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 the 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 Circle K's deemed approved status could be
revoked at that time, which would require Circle K to apply for a new conditional use
permit through the planning commission 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.
                                             2
              In the weeks prior to the scheduled hearing, the parties engaged in
extensive written and oral communication regarding a possible modification 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 liquor, 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 all four of its stores in Ventura. 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 hearing, a 60-day continuance was granted
at the parties' request based on their representation that they were working toward a
resolution. During the continued negotiations, the City informed Circle K's attorney that
City staff could only support a modification of the permit in lieu of revocation if the
conditions included a prohibition on single sales of both beer and malt liquor and the
installation of locking devices on all beer cooler 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 accept 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 that hearing, the parties reported that they
had been unable to agree on a modification of the permit, specifically with regard to the
single sales of beer. In response to questioning from the commissioners, Officer
Donswyk and the City attorney stated that any conditions included in a modification of
the permit would only be enforceable through a subsequent revocation proceeding.



       2 The conditions in addition to ABC training were prompted by evidence
indicating that a highly disproportionate amount of police resources were expended in
responding to service calls from the store regarding thefts of beer and disturbances
involving intoxicated individuals.
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              The planning commission ultimately adopted a resolution revoking Circle
K's permit. The planning commission found that Circle K had failed to operate the store
in strict compliance with the ABCA by selling alcohol to minors in violation of section
25658, subdivision (a) of the Business and Professions Code. The planning commission
further found that "Circle K requires a disproportionate amount of police resources in
order to mitigate incidents requiring a law enforcement response -- over the 12 month
period ending July, 2010, the Ventura Police 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 intoxicated subjects, panhandlers and fights. This is detrimental
to the public safety and constitutes a nuisance."
              In its appeal to the City Council, Circle K contended among other things
that the City and planning commission had acted in violation of Circle K's due process
rights. Circle K asked the City Council to reverse the decision and permit modification
of the permit with several additional conditions, none of which would 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 evidentiary hearing, Circle K offered
that it was willing to lock the store's beer coolers from 2:00 a.m. to 6:00 a.m.
              Following an evidentiary hearing, the City Council adopted a resolution
revoking the permit. In independently deciding whether to revoke 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 practices 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 management systems to address the
problems specific to this location, and accordingly this finding and conclusion is without


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prejudice to Circle K's ability to apply for 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 the 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 sufficient 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 remarks to that effect and "any prejudice was mitigated by
virtue of the appeal to the City Council, and the clear acknowledgment by the City
Council of its authority to modify the deemed 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 applied for a stay to prevent the City from
enforcing the resolution to revoke the permit. Following a hearing, 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 failed to establish a probability of prevailing on
the merits of its writ petition.
               After Circle K filed an amended petition, the court proceeded to hear the
matter on the merits based on the parties' briefing and the administrative record. In its
ruling, the court declined to decide whether the City was required to issue a formal
"notice of violation" because "[e]ven accepting Circle K's interpretation, the court finds
that the police department's actions substantially 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 commission incorrect legal advice regarding the
enforceability of the conditions of a modified permit, the court reasoned: "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 Commission, Circle K appealed the Planning
Commission's determination to the City Council. The City Council's determination

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superceded [sic] that of the Planning Commission. [¶] The City Council was not misled.
Circle K alerted the City Council to its objection to the disputed advice, and the City
Council acknowledged Circle K's contention in its resolution revoking the use permit. . . .
The resolution contains the City Council's 'clear acknowledgment . . . of its authority to
modify the deemed approved permit should it so desire.' [Citation.] However, it did not.
It expressly considered whether a modification 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, further, that Circle K had a 'history of repeat violations and
the maintenance of nuisance conditions.' [Citation.] 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 authority." The court proceeded to deny
the petition for a writ of mandate, and judgment 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 revocation was based on erroneous legal advice
given by City staff. Neither claim has merit.
              "A trial court may issue a writ of administrative mandate where an agency
has (1) acted in excess of its jurisdiction, (2) deprived the petitioner of a fair hearing, or
(3) committed a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).)
'Abuse of discretion is established if the [agency] has not proceeded in a manner required
by law, the order or decision is not supported by the findings, 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 Circle K was deprived of a fair hearing "is one of
law, which we review de novo: '"There might be foundational matters of fact with
respect to which the trial court's findings would be conclusive on appeal if supported by

                                               6
substantial evidence. However, the ultimate questions, whether the agency's decision
was . . . unlawful or procedurally unfair, are essentially 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 conclusive on appeal." . . . The review of
procedural issues, whether presented in mandamus proceedings brought 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 fundamentally fair is a
question of law to be decided on appeal.' [Citations.] The trial 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 required 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 not 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 governed 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 detrimental to the public health or safety or in a manner that
otherwise constitutes a nuisance." The City Council 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 establishment is being operated 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 establishment in the manner provided by this chapter or chapter
24.520 of this division, the department shall cause a notice of violation to be issued to the
permittee that describes the nature of the violation, 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."
                                               7
              There was no error in these findings. We must give "considerable
deference" to the City's interpretation of its own ordinances, 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 Environmental Development v. City of San
Diego (2010) 184 Cal.App.4th 1032, 1047.) Even if the City was required to issue a
"notice of violation" under section 24.460.660, we agree with the trial court that the City
effectively provided such notice here. Circle K was informed that it had violated the
conditions of its permit by selling alcohol to a minor. Moreover, Circle K was offered a
solution that would have avoided revocation proceedings altogether. 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 "notice of violation" under section 24.460.660.
              Circle K also fails to demonstrate the decision to revoke 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 would 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 advice is of no moment because it is apparent
that the advice played no part in its decision to revoke rather 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 sales 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.

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                                Mark S. Borrell, Judge

                          Superior Court County of Ventura

                        ______________________________


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




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