PROPOSAL to CARS on MORPHING Jun 12 2010

Proposal on Morphing to CARS Feb 12, 2010, Rev. Jun 12, 2010

© by CLEW Associates – all rights reserved, including attachments

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PROPOSAL – DRAFT FOR REVIEW ONLY

Needs Assessment Survey: State ABC and Local Police Response to Problems Related to

“Morphing” of Restaurants to Bars in California communities

Prepared by: Friedner D. Wittman, Ph.D., M.Arch.

CLEW Associates

Feb 12, 2010; Rev. June 12, 2010

ABSTRACT This Needs Assessment Survey will document the extent of restaurant “morphing” from low-risk “restaurants” to high-risk drinking establishments (bars, taverns, entertainment venues) in California cities. Purpose of this project is to provide reliable information to support action by the ABC and local jurisdictions to address public safety and health problems related to morphing. This information will assist the following agencies and groups: California Dept of Alcoholic Beverage Control (ABC), California Dept of Alcohol and Drug Programs (DADP), county ADP prevention programs, community-level prevention coalitions, prevention service providers, and local law enforcement and planning agencies. How big a problem is morphing? How is it currently being handled by state agencies and local law enforcement and planning? What assistance do these agencies need to take effective action through the ABC Act and local planning/zoning ordinances? How can the AOD prevention community help the ABC and local law enforcement jurisdictions take action on morphing? This proposal follows a three-part needs assessment to answer these questions. 1. Part One: Survey six to eight ABC District Office supervisors regarding their experiences managing restaurant morphing as an ABC licensing and enforcement issue. 2. Part Two: Survey six to eight local law enforcement jurisdictions (police department or sheriff’s department) regarding management of morphing as a local public safety and land-use issue. 3. Part Three: Provide local police data (calls for service and written reports) to describe morphing activity systematically, comprehensively, readily accessible to all community participants concerned about the morphing issues, and on a continuing basis. These three parts can be pursued one at a time progressively, or (preferably) the first two can be treated as a single one project. Part One leads directly to Part Two. Successful conclusion of the first two parts leads to Part Three , as described below. Each of the three sub-projects will useful stand-alone information, though it would be ideal to fund the three parts as a single project.



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BACKGROUND (See supporting material in APPENDIX I) “Morphing” occurs when restaurants behave like bars (see Appendix I). Morphing is widely observed by local alcohol policy advocates to be a major community prevention issue in California. A variety of AOD problems are related to morphing: Youth access, late-night community disturbances, problematic operating practices (drunkenness, overcrowding, disrespect for the law), and over-concentration of on-sale outlets. Studies of police events in college communities show that on-outlets which morph, particularly ABC Type 47 licenses, contribute a disproportionate share of police problems compared to all on-sale outlets in the community (ASIPS data show about 5 to 10 percent of on-sale outlets account for 50 to 60 percent of all police calls to on-sale outlets – and about half of the “Top Ten Percent” are Type 47 Restaurants that function as nighttime drinking halls). Cal Council selected Morphing as a major policy issue for the coming year at its 2008 retreat. The ABC Central Office, in several meetings with Cal Council starting in September, 2008, agrees that morphing is a significant problem for many ABC Districts that extends to municipalities of all types, including college towns, inner cities, suburban shopping malls, and sports / entertainment complexes. Problems with morphing have occurred largely because restaurant/tavern/bar operations have changed significantly over the last decade. “Restaurants” now place much greater emphasis on drinking as an integral part of their business model and their advertising/promotion to the public. These changes are overwhelming the capacity of state ABC Code and local planning & zoning regulations to distinguish between “restaurants” with minor incidental uses of alcohol, and “restaurants” that behave like bars, taverns, nightclubs, and places of entertainment. Theoretically the state and local governments can modify their regulations and oversight procedures to respond to these changes. In practice this is not happening. Regulatory “fixes” seem relatively straightforward, but they are stalled because they lack two closely-connected elements: (1) Demonstration of a nexus, or empirical connection, to justify official action to intervene between morphing and alcohol problems; and (2) Policy initiatives capable of changing regulatory activity to prevent the problems. Nominal “fixes” for morphing regulations include (1) Improved definitions in the State ABC Code to clearly distinguish bona fide restaurants from bars, (2) Improved local zoning definitions of a “restaurant” as a land-use that can be clearly distinguished

from a bar or tavern. (3) Better ongoing, systematic documentation to distinguish relationships between police events &

community disturbances at bars & restaurants. (4) Improved licensing practices by the ABC to catch likely morphing problems prior to issuing a

license, and to act quickly once problems appear. (5) Ditto Item 4 for local use-permit practices. For the foreseeable future, the impetus that drives these fixes will come from below (e.g., community action by prevention advocates) and from collateral agencies (such as law-enforcement, county alcohol/drug agencies, health and social services). Cal Council on Alcohol Policy efforts during the past year to energize the ABC, as have efforts to work with local planning and zoning officials, are hampered by absence of documentation on alcohol-related problems and morphing. ABC Central Office staff and a number of sympathetic local officials share the advocates’ concerns, but are not able to take action without supporting data. At the local level, a compelling case for greater local control of restaurants must be made by illustrating problem-connections showing how morphing is a real issue.



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WORKPLAN Part One: Interview ABC District Office officials on morphing experiences. Scope. Conduct Key Informant Interviews with a sample of 6 to 8 ABC District Office supervisors or their designated field agents who have experience with outlets that morph from restaurants to bars (“morphing outlets”). Qualitative Key Informant Interviews will be conducted by telephone based on the Prevention by Design KII format developed for the Taking Charge Manual (see below). Sample selection. ABC Central office will request that ABC District Offices cooperate with the survey as part the Central Office effort to address problems with morphing outlets in the course of routine licensing and enforcement operations. ABC Central Office will also assist with identification of a sample of the 8 ABC District Offices from a total of 36. District Office to be selected will be those that have the most experience with morphing outlets, and the most difficulty dealing with them, based on Central Office oversight of District Office operations. Analysis of data and preparation of report. This will be carried out by CLEW Associates. Confidentiality issues: District Offices and officials responding will not be identified by name in the final report, nor will specific cities or retail outlet establishments. Content of report: Focus will be on qualitative description of problems morphing, current monitoring and oversight practices (or absence thereof) and on data sources used. The following items will be covered: Frequency of morphing outlets during the course of routine D.O. monitoring and oversight over past 12 months. ABC record-keeping practices to monitor morphing outlets. ABC interaction with local jurisdictions to address concerns and manage outlets exhibiting problems related to morphing. ABC interaction with retail licensees and on-site owners/managers regarding morphing issues. Part Two: Interview Local Law Enforcement officials on morphing experiences. Scope. (1) Local management of alcohol outlets that morph. Conduct Key Informant Interviews with a sample of 6 to 8 police chiefs or sheriffs, or their designated field agents who have extensive experience with outlets that morph from restaurants to bars (“morphing outlets”). Qualitative Key Informant Interviews will be conducted by telephone based on the Prevention by Design KII format developed for the Taking Charge Manual (see below). (2) Local documentation of morphing and its management. Test whether police event data can be obtained in a useful format from the participating jurisdiction to describe morphing activity by on-sales establishments licensed by the ABC. Sample selection. ABC District Offices interviewed in Part I will identify the top three to five cities in their districts experiencing serious morphing problems. From this list, the local jurisdiction will be selected for a KII interview. Selection will be based on (1) the apparent extent of morphing activity in the jurisdiction (based in part on the number and distribution of on-sale outlets); (2) whether the police chief or sheriff is cooperative on morphing issues and willing to share data; (3) whether community groups and other local agencies express concerned about morphing to the point of asking for or taking action. Analysis of data and preparation of report. This will be carried out by CLEW Associates. Confidentiality issues: Participating cities and responding officials will not be identified by name in the final report, nor will specific outlet establishments.



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Content of report: (1) LLE management of problems related to morphing. Focus will be on qualitative description of problems morphing, current monitoring and oversight practices (or absence thereof) in the participating jurisdiction. The following items will be covered: Frequency of morphing outlets during the course of routine monitoring and oversight by the LLE agency over past 12 months. Interaction with other city agencies regarding morphing (e.g., planning, zoning, long-range development, code-compliance, neighborhood services). Interaction with ABC D.O and neighboring local jurisdictions to address concerns and manage outlets exhibiting problems related to morphing. Interaction with retail licensees and on-site owners/managers regarding morphing issues. (2) Feasibility report on local data system used to describe morphing. This report will summarize the capacity of the CAD (incident report system) and RMS (written report system) to provide systematic data to describe morphing by ABC-licensed on-sale outlets. The report will determine time, costs, and availability of the data for downloading according to the framework shown in Appendix II, Part B. “Morphing Quex for local LLEs.” Part Three: Provide Local Law Enforcement agency data to describe morphing at the community level. Scope. Provide local police event data (calls for service and written reports) to describe morphing activity throughout the participating jurisdiction systematically, comprehensively, readily accessible to all community participants concerned about the morphing issues, and on a continuing basis. If participating local jurisdictions are able to provide CAD and RMS data per the feasibility study in Part Two, then police event data can be reported accordingly using the Retail Alcohol Outlet Report feature of the ASIPS/GIS Community Tour. Data to be provided. The Retail Alcohol Outlet Report (RAOR) provides data on all police events, including CAD (incidents) and Arrest data, at all ABC-licensed retail alcohol outlet addresses currently operating in the participating jurisdiction. Retail Alcohol Outlet Report data facilitate analysis of those ABC outlets to show which ones appear to be morphing. Outlets that morph are those that have an ABC restaurant license (Type 41, Type 47) and exhibit elevated police event data (higher numbers of events, more types of events, many events late at night). Data applications. These RAOR police data can be used to help with compliance and enforcement at individual outlets by checking performance against use-permit requirements, and by monitoring “hot-spot” outlets (with high number of police events) over time. These RAOR data facilitate comparison among similar types of outlets, and outlets in the same geo-area, to help focus on operators that need attention. The RAOR data can also be used on an aggregate basis by other city departments in conjunction with master planning, zoning, land-use, long-range development, and commercial development. For example, sudden growth of high concentrations of Type 47s in a downtown area has been associated with a rapid rise in police events (Fullerton, California), leading to the need to curtain growth and modify outlet operations through local zoning measures.



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TIME & TASKS BUDGET

Work Item Principal

Days Analyst Days

Part One. Key Informant interviews through ABC. Data collection (1) Work with Sacramento Office of ABC to contact D.O. chiefs (2) Rank and select the D.O.s by severity and extent of morphing activity (3) Conduct KIIs with ABC D.O.s by telephone. (6-8 interviews) (4) Transcribe and clean interviews. Subtotal Analysis and reporting (1) Index and enter data for coding and content analysis. (2) Conduct content analysis and prepare preliminary write up (3) Analyze additional materials provided by D.O. supplemental to the KII. (4) Prepare analysis and report Subtotal Grand Total

1.5 0.5 1.0 1.0 4.0

1.0 1.0 1.5 2.0 5.5

9.5

1.0 2.0 4.0 2.0 9.0

2.0 2.0 2.0 1.0 7.0

16.0

Part Two: Interview Local Law Enf. Officials in cities with major morphing issues (1) Work with the ABC District Office to identify top “morphing” city. (2) Contact Police Chief to set up a KII interview (3) Conduct KII with LLE Official y telephone (6-8 interviews). (4) Follow up with LLE data staff to test availability of data to detect morphing (4) Transcribe and clean interviews. Analysis and reporting (1) Index and enter data for coding and content analysis. (2) Conduct content analysis and prepare preliminary write up (3) Analyze additional materials provided by P.D. supplemental to the KII. (4) Prepare analysis and report Subtotal Grand Total

1.0 3.0 2.0 0.5 1.0 7.5

1.0 1.0 1.5 2.0 5.5

13.0

1.0 3.0 4.0 3.0 2.0

13.0

2.0 2.0 2.0 1.0 7.0

20.0

Part Three: Facilitate use of Local Police Data to monitor alcohol outlet performance Note: The days shown are estimates per city subject to revision. (1) ABC license data download (2) Download police event data to create RAOR report (by local jurisdiction) (3) Prepare alcohol outlet address queries for RAOR report (4) Run Retail Alcohol Outlet Report tables, charts, (4) Run Retail Alcohol Outlet Report GIS maps (5) Write Highlight Report and print. Total

0.0 1.5 4.0 2.5 1.5 3.5

13.0

0.5 0.0 0.0 0.0 0.0 0.0 0.5

TOTAL PERSONNEL

35.5

36.5



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TIMELINE Part One: Project can be completed in 60 days from start Part Two: Project can be completed in 90 days (can overlap with Part Two) Part Three: Project can be completed in 45 days PERSONNNEL Principals (1) Friedner D. Wittman, Ph.D., M.Arch. Project Director (project design, project supervision, reports) (2) Joe Harding, Ph.D.

Information Services Director (computer operations and data systems) Analyst Frank Latcham, M.A., M.S.W. (data collection and management, analysis, reports) ATTACHMENTS Attachment I – Background information A. Cal Council Briefing Memo on Morphing – Feb 3, 2009 B. Definitions of Morphing – Jan 6, 2009 Attachment II – Data collection instruments A. Key Informant Interview instruments for ABC. B. Key Informant Interview instruments for Local Law Enforcement



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ATTACHMENT I

Morphing: On Restaurants that Behave Like Bars and What Communities Can Do About It

A Briefing Paper on Conduct and Classification of Retail Alcohol Outlets in California Communities.

February 3, 2009

Friedner D. Wittman, Ph.D., M.Arch.

CLEW Associates, Berkeley, California

Many California communities during the last decade find that certain establishments locally zoned by the city and licensed by the state as “restaurants” actually behave more like “bars.” That is, establishments that supposedly serve alcoholic beverages incidental to meals actually serve alcoholic beverages independently of meals, and actively promote drinking and dining as joint activities. Many of these establishments also encourage other pro-drinking activities such as table games and games of skill, music and dancing, and large video screens showing sports events. An establishment’s shift from a restaurant to a bar, despite local zoning and despite holding a California Alcohol Beverage Control Department (ABC) license as a restaurant, is known as “morphing.” Sometimes the restaurant serves conventional meals during normal mealtimes into the early evening, morphing into a bar-lounge operation in middle and later evening hours. Sometimes the establishment functions both as a bar and a restaurant during daytime operating hours as well. These practices occur in cities across California. One would expect such practices in high-density downtown and commercial areas and entertainment zones. But Cal Council members report these conditions appear in suburban shopping centers, on strip malls in mid-sized cities, and in small towns as well. At a meeting attended by Cal Council in September, 2008, ABC central office staff identified morphing as a significant issue for most ABC Districts. What’s the problem? Morphing creates practical and immediate problems for local communities: Increased public safety problems due to problematic operation of the individual establishment (police data – Garden Grove); Complaints about quality of life and nearby residential neighborhoods (ref: neighbor complaints in tourist and college towns – Newport Beach); and with increasing congestion and disturbances in high-density entertainment zones, particularly from young people (ref: crowding, drugs, entertainment venues – Fullerton CA). Morphing also subverts the local and state regulatory process by encourage misunderstandings and subterfuges that roil relationships between local officials, restaurant operators, other members of the local hospitality industry, and public perception of “restaurants.” Local agency staff and elected officials are encouraged to believe that restaurants are far less likely than bars to create police problems and community disturbances. Therefore local jurisdictions treat bars with greater scrutiny than on restaurants. For example, local planning and zoning codes are more likely to restrict the overall numbers of bars and locations in which they can operate. They are also more likely to impose more use-permit conditions, and to spend more time on “bar checks” to make sure the establishments are in compliance with the law.



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Conversely, local officials are encouraged by permit applicants and the public to believe that restaurants encourage social life, entertainment, and encourage people to spend money in the community. Local officials usually do not look closely at problems associated with restaurants. Local data systems do not support preventive surveillance that would make it easy to spot increased police problems at and in the vicinity of restaurants. The ABC, which carries out enforcement functions on a complaint-driven basis, is even less likely to maintain preventive surveillance for restaurants. Accordingly, restaurants appear more likely to be approved with fewer land-use limitations and operating restrictions, and to be charged lower permit fees, because they are expected to create fewer demands for public services. Problems occur when an establishment approved with minimal restrictions as a “family restaurant” or a “restaurant for fine dining” turns out to that creates police problems and neighborhood disturbances as the place operates like a bar late at night. Problems mushroom since there are far more restaurants than bars, and since restaurants are located in more neighborhoods and are more likely to be located adjacent to sensitive uses. Problems can grow surprisingly fast in a downtown entertainment area where the number of on-sale establishments can increase rapidly in a high-density area. This happened in downtown Fullerton, California, when the number of lightly-regulated restaurants jumped from 25 to 45 in about three years as part of downtown revitalization efforts. The Downtown “restaurant overlay zone” caught on as a raucous entertainment destination for young people from as far away as Los Angeles. The greater the surprise, the greater the upset. The City of Fullerton quickly learned its lesson and is now re-regulating the downtown entertainment area, but it is difficult getting the genie back in the bottle. Other California cities have similar experiences in their downtown areas, including Newport Beach, San Francisco, Santa Barbara, Stockton, Oceanside, and Los Angeles, notably the Staples Center area. In each of these cities, the problems of morphing combined with problems related to rapid increases in the density of the number of outlets in a relatively small geographic area. Problems due to morphing also appear to occur in residential-commercial neighborhoods, in strip mall commercial areas, and near colleges. Examples are found in Garden Grove, Sacramento, San Francisco, San Diego, Berkeley, and Chico. Problems in these smaller areas typically include quality of life and pockets of crime/drugs/prostitution. There is evidence to suggest that police and decorum problems increase rapidly in commercial areas where the number of alcohol outlets exceeds about one-third of the total number of commercial outlets in the area, particularly where establishments that are licensed and issued permits as restaurants also behave like bars. Sources of the problem How come these problems keep recurring? Morphing is fed by three interconnected factors. (1) Vague and inadequate regulatory language. One significant source of the problem lies in vagueness in the language of the California ABC Code used to define “restaurants” and “public premises” (the same as bars) for on-sales retail establishments licensed by the ABC. The ABC Code distinguishes “restaurants” as establishments that serve “customary meals” prepared on the premises, and that obtain 51 percent of gross revenue the sale of food and other non-alcohol items. This language cannot keep a “restaurant” from morphing into a bar, particularly when enforcement of the 51 percent rule is so lax. This vagueness is mirrored in the language found in local code definitions for “restaurant” and “bar.” Many local codes mimic or incorporate the ABC definition, and most focus more on certain design features such as visual separation form the public, restrictions on noise, and physical design requirements such as size limits, seating requirements, set-backs, signage and lighting requirements. Relative few local codes specifically require the kitchen to operate at all times the place is open for business, or require specialized training for safe and responsible service of alcohol (Responsible Beverage Service).



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(2) Weak land-use controls for restaurants. Most localities impose few controls on restaurants. Few cities require stringent conditional use permits (CUPs) for operations, and few cities place land-use restrictions on restaurants, compared to the requirements imposed on bars (or public premises, using ABC terminology). In some cities, leniency of local oversight is related to the overdevelopment of restaurants described below. (3) Over-reliance on restaurants in development / redevelopment areas. Renewal and development schemes often place a major emphasis on encouraging restaurants and other food-oriented operations, such as mall food courts. California communities have about ten times as many general-license restaurants (places that serve beer, wine, and liquor), and about twenty times as many beer & wine restaurants, as general-license public premises (bars). Statewide, the ABC lists about 2,900 general-license public premises, about 12,700 general-license restaurants, and about 22,500 beer & wine restaurants (2008 figures). Thus a restaurant generally has a great deal more room to maneuver than a bar. In the absence of clear definitions and firm local oversight, problem operations creep into a restaurant in many ways. Operator intentions at the outset are not necessarily clear, or honest, and they may change over time as the business struggles and as clients take greater interest in drinking than in eating, especially late at night. Disappointing sales and decreasing business may stimulate increased reliance on alcohol sales. Customer demands (often stimulated by the establishment’s local marketing practices) may encourage more drinking. Marketing policies of restaurant chains may pressure local franchise operators to boost alcohol sales. Accordingly, local officials and neighbors are justified in taking a critical view of “good intentions” from prospective restaurateurs, and in assuring that operator promises made during the licensing and permit-review process are reinforced by provisions for oversight and sanctions, locally and through the ABC, when promises are not kept. What can be done? Action can be taken at the state and local level. For example, the California ABC definition of a “restaurant” could be changed to remove ambiguities about the purpose of restaurants to serve alcohol incidental to meals. Greater oversight and enforcement can be applied to make sure the ABC regulations on percentage food sales are stringently observed. At the local level, cities and counties can improve the language in their local zoning codes and land-use ordinances both to strengthen operational requirements through CUPs, and to set firm land-use limits on the location, size, and density of restaurants and bars. Who cares? City officials, operators of law-abiding establishments that make a point of complying with state laws and local ordinances, neighbors (including commercial and residential neighbors), parents and others concerned about young people, people who want to enjoy entertainment and dining out without intrusions from other patrons. Local institutional gate-keepers from the school system, social and health service providers, and religious groups are also concerned. All these groups seek a community with stable, reliable land-uses that support the “quiet enjoyment” of the community, and these groups together provide the raw material for a coalition of concerned community members to take action. Help is available (Is it?) How does Cal Council want to help? Who else? Officials need to be bolstered. Regulatory language needs to be improved. The public needs to be alerted. The industry needs to look at itself



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ATTACHMENT I (Continued) MEMORANDUM To: Angela Goldberg Cc: Michael Sparks, Ed Kikumoto, Zelenne Cardenas Fr: Fried Wittman Re: Definitions of “MORPHING” by on-sale alcohol outlets Dt: January 6, 2009 1. An ABC Licensed outlet originally licensed as a restaurant (Type 41 or Type 47) changes operation

from a place that primarily sells meals (as expected according to its license) to a place that primarily sells alcoholic beverages, similar to a Type 42 or Type 48 Public Premises. “Changing operation” can occur in several ways. (1) The establishment shifts from a being a restaurant to behaving like a public premises after the dinner meal service ends or greatly attenuates. (see newspaper article below for example).

(2) The establishment follows a marketing plan that always places a heavy emphasis on alcohol sales

and recreational / entertainment activities along with meal service even though it is licensed as a “restaurant” according to the ABC.

(3) The establishment modifies its service to minimize the service of meals to the point operations fall

below the ABC’s putative definition that a “restaurant” derive at least 51 percent of its gross income from food sales.

2. ABC Definitions: ABC Code definition of a “restaurant”: 23038. "Bona fide public eating place" means a place which is regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation and which has suitable kitchen facilities connected therewith, containing conveniences for cooking an assortment of foods which may be required for ordinary meals, the kitchen of which must be kept in a sanitary condition with the proper amount of refrigeration for keeping of food on said premises and must comply with all the regulations of the local department of health. "Meals" means the usual assortment of foods commonly ordered at various hours of the day; the service of such food and victuals only as sandwiches or salads shall not be deemed a compliance with this requirement. "Guests" shall mean persons who, during the hours when meals are regularly served therein, come to a bona fide public eating place for the purpose of obtaining, and actually order and obtain at such time, in good faith, a meal therein. Nothing in this section, however, shall be construed to require that any food be sold or purchased with any beverage.

ABC Code definition of a “Bar” (“Public Premises”) 23039. (a) "Public premises" means: (1) Premises licensed with any type of license other than an on-sale beer license, and maintained and operated for the selling or serving of alcoholic beverages to the public for consumption on the



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premises, and in which food shall not be sold or served to the public as in a bona fide public eating place, but upon which premises food products may be sold or served incidentally to the sale or service of alcoholic beverages, in accordance with rules prescribed by the department. (2) Premises licensed with an on-sale beer license, in which food shall not be sold or served to the public as in a bona fide public eating place, and in which sandwiches, salads, desserts, and similar short orders shall not be sold and served, in accordance with rules prescribed by the department. 3. The on-sale outlet with a local CUP changes the land-use character of operation from “restaurant” as

defined in the local zoning code to another type of land-use definition in the local zoning code, such as “tavern,” “bar,” or “cabaret” that emphasizes drinking activities will equal or exceed dining activities, according to similar to the patterns described above for establishments operating under an ABC License.

4. Example Local Planning and Zoning Code definitions. Definitions and terms for on-sale establishments vary greatly from city to city in their capacity to distinguish between “bars” and “restaurants.” Examples of more effective terms include the following: (1) Bona fide meals must be served from a kitchen operating on the premises during all hours of

operation, up to 30 minutes before closing time (2) Gross food sales must amount to 51 percent, preferably 60 or 67 percent, of gross sales. (3) Entertainment devices are restricted (games, large video screens, table games, games of skill or

chance). (4) Patrons must be seated while consuming alcohol. (5) Sound levels are low enough to permit normal conversation. (6) Lighting levels and facility layout allow supervision and control of patron behavior. (7) Seating be predominantly at tables/booths, rather than at bars. 5. What’s wrong with morphing? Morphing leads to problematic operation of an on-sales outlet in ways that exceed limits on operations presumed under state licensing and local use-permit designations as a “restaurant” devoted primarily to service of meals. Local officials tend to be caught off guard, and management disregard of state and local requirements is often followed by disregard for community standards and patron welfare. This pattern of operation results in police problems, community disturbances, youth access, and excessive drinking are associated with morphing. For an example from one city, see discussion on next page, from “Innovation in Planning, Managing and Policing Hospitality Zones: Issues in Local Land-Use Planning and Zoning for On-Sale Alcohol Outlets,” prepared for RHI Networking Conference, San Francisco, November 12-15, 2008. Friedner D. Wittman, Berkeley, California: CLEW Associates, December 10, 2008.



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2. Transformation of a “Restaurant” to a “Bar” (Morphing) Many California cities are finding that ABC Type 47 Licenses (On-Sale General Restaurant) behave a great deal like ABC Type 48 Licenses (On-Sale General Public Premises). Morphing occurs when “restaurants” shift from emphasis on food sales during the day/early evening to emphasis on alcohol sales later in the evening. Morphing is also in effect when the restaurant business model places major emphasis on alcohol sales at all times. The newspaper article on the next page provides an illustration. The table below illustrates morphing as a function of police events: About forty percent of the Type 47 “Restaurants” in the example community generated the same high levels of police activity as about 30 percent of the Type 48 “Public Premises” generating high levels of police activity. That is, from a police perspective, these restaurants were the same as troublesome bars. Note also that the Type 47 Licenses behave a lot more like Type 48s than Type 41s (On-Sale Beer and Wine Restaurant).

Table 1. Number of Police Events for ABC License Types in a California City

for Five ABC On-Sale License Types Calendar Year 2007

ABC License Type & Description Number of Licenses

Total Events

AOD Events

Arrests

40 On-Sale Beer Only (no meals) 3 36 18 17

41 On-Sale Beer & Wine Restaurant 110 318 45 61

42 On-Sale Beer & Wine Public Premises 2 75 16 15

47 On-Sale General Restaurant 40 1,038 86 138

48 On-Sale General Public Premises 9 91 24 17

Table 2. Rate of Police Events per License in a California City

for Five ABC On-Sale License Types Calendar Year 2007

ABC License Type & Description Number of Licenses

Total Events per

License

AOD Events per

License

Arrests per

License

40 Beer Only (no meals) 3 12.00 6.00 5.7

41 Beer & Wine Restaurant 110 2.9 0.4 0.6

42 Beer & Wine Public Premises 2 37.5 8.0 7.5

47 General License Restaurant 40 26.0 2.2 3.5

48 General License Public Premises 9 10.1 2.7 1.9



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Newspaper Article Wednesday, March 5, 2008, Orange County Register

Fullerton council approves stringent liquor ordinance

New regulations for the downtown ban live amplified music on patios, and set permit rules for nightclubs.

By BARBARA GIASONE Staff Writer

A sense of urgency to combat crime and drunkenness in downtown Fullerton pushed the City Council on Tuesday to adopt an ordinance aimed at restaurant, bar and nightclub owners.

The law, which goes into effect in 45 days, calls for noise controls, conditional-use permits for restaurants that morph into nightclubs after 10 p.m., stringent security rules and serving certification for employees in the more than 45 food-and-drink establishments.

Also, no amplified live music would be allowed on patios at any hour except for special events. All other music must meet decibel standards.

"The issue is if a person walks into a restaurant at noon and the place looks different at midnight, that's when there's a problem," Councilman Shawn Nelson said. "There are restaurants in Fullerton that are not licensed to be nightclubs that are (operating as) nightclubs."

The law also establishes a quick permit process for new restaurants serving beer and wine in less than 2,500 square feet to move into the city.

Attorney Michael Carras, representing several business owners in the downtown, said the ordinance should regulate conduct, not label businesses. He also said noise should be monitored case by case.

Councilman Dick Jones said residents are disgusted with the council for not dealing forcefully with the downtown bar scene.

"We wanted to see sales tax and revenue, but it's costing the city more than we're bringing in," said Jones, alluding to the $1.6 million bill this fiscal year to hire four additional police officers and a maintenance crew to deal with alcohol-related behavior.

During the discussion, an idea to remove signage that alludes to bar use was opposed.

All council members agreed the ordinance needs fine-tuning.

"But we need to move forward with 'reasonable conditions,'" Mayor Sharon Quirk said.



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What is being done now to resolve morphing?

Morphing has been occurring for some time, but is only now being noticed as a problem. California cities are beginning to realize it is a mistake to grant an administrative use-permit for a Type 47 General On-Sale Restaurant License without firm conditions on alcohol management and alcohol service. Promises to operate an attractive restaurant that provides only family-friendly fine dining are too often and too easily broken. Therefore cities such as Fullerton are establishing firm CUP requirements for Type 47s, and cities such as Garden Grove are starting to treat all general-license Type 47 “restaurants” the same way they treat high-risk Type 48s, with greater oversight and greater enforcement directed equally at restaurants and bars that generate police events and community complaints. The City of Garden Grove is also contemplating permits that require an establishment to demonstrate sound business practices under a Type 41 License (Beer and Wine Restaurant) before allowing application to the state for a Type 47.

What more can be done?

(1) Maintain greater oversight of outlet operations by ABC license type to spot trends and problems before they occur. This includes more bar-checks – on-site visits by local law enforcement; more checking on police events at all alcohol outlets by license type in addition to other variables; and more engagement between city officials and restaurateurs to encourage restaurant operators to establish their own serving standards and policies of operation for high-quality dining free of excessive drinking.

(2) Increase enforcement efforts to make sure “restaurants” are compliant within licensure requirements

and zoning conditions to maintain 50% or more food/non-alcohol sales. This entail better record-keeping to distinguish outlet performance by license type, and more monitoring of restaurant records to make sure they follow percentage food requirements.

(3) Redefine the terms for “restaurant” in the ABC Act and in local use-permit ordinances to clearly

distinguish this type of setting from a public premises (bar). Current requirements for food sales percentages are clearly not sufficient.



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ATTACHMENT II MEMORANDUM To: Cal Council Committee on Morphing and its Data Subcommittee Fr: Fried Wittman Re: Recommendations for qualitative and quantitative data on morphing outlets: A. ABC District Offices experience with morphing B. Local officials regarding public management of morphing at city / county levels Dt: September 13, 2009; revised Feb 12, 2010 This memo is the other shoe dropping to accompany the community documentation template to capture quantitative data showing the local extent of morphing I proposed to the Data Committee on May 14, 2009, which is attached. The following interview guides can be used with ABC District Office staff and local officials to capture qualitative aspects of agency experiences with morphing. I believe Cal Council needs to establish documentation and problem assessment at this level to make a persuasive case for policy action at both state and local levels. The data could also be used to help organize the restaurant community both locally and at the state level – our ASIPS data on Type 47s and Type 41s suggests that most local restaurateurs would be happy for clearer distinctions, including putting some daylight between their establishments and problematic morphers. This data collection effort is labor intensive and Cal Council members are severely pressed for time. Using volunteer effort alone is not realistic. It will be necessary to write a small grant for data collection, analysis and reporting at this level. What are the possibilities? Foundations? CARS now that it has been refunded for both CPI and SDFSC TA contracts? To qualify for public funding, this contract would be written to emphasize problem documentation and assessment, rather than policy action. It could be written through a sympathetic County ADP containing several communities in which morphing is a major issue – Orange County comes immediately to mind. I will be happy to help with the proposal writing and to work on the grant/contract if funded Formatting and refining the following interview questions, training interviewers, and setting up the analysis will be included.



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A. MORPHING QUEX: Interview Questions for the ABC Questions for the ABC District Office (or Police Chief / Key Local Law Enf Official) APPLICATION: This guide is designed for in-person interviewing with the respondent. The interview guide can be used either for telephone interviews or on-site interviews. SETUP: Review the following guide with ABC Central Office – request that the Director or Deputy Directors (North and South) send a memo to their D.O.’s asking for cooperation with this interview. Follow up with telephone calls / letters to the D.O. to set up an appointment. INTRODUCTION: Hi, I’m calling on behalf of California Council on Alcohol Policy to DO administrators about the ABC’s DO experiences with “morphing” – places that operate under ABC Restaurant Licenses (40, 41, 47) but actually operate more like Public Premises (42, 48) that emphasize drinking (fall below 50 percent food sales) and provide entertainment, games, and other activities that do not involve dining. Cal Council is preparing regarding the extent of morphing in California communities, and the actions being taken by the ABC and local officials to address health and safety problems related to morphing. CONFIDENTIALITY. Cal Council is seeking information about problems, policies and practices, not about specific licensed establishments or licensees. No specific names of licensed establishments or individual licensees mentioned during this interview will be used in the report Cal Council is preparing. May I continue the interview on this basis? (Yes / No – if No, thank the DO for their time and terminate the interview). RESPONDENT INFO. 1. District Office name, and counties covered (obtain list before the interview). 2. Name of respondent. 3. Respondent’s position at ABC. 4. Length of time respondent in this position. MORPHING ACTIVITY IN DISTRICT CITIES & COUNTIES Now I’d like to ask you a few questions about on-sale Restaurant licenses in the Counties and cities in your District that “morph” into places that function more like Public Premises (bars) 1. Does Morphing occur in counties and cities served by your DO?

__ No (If no, thank the DO for his/her time) __ Yes (If yes, continue with the following questions: 2. In which counties and cities in your DO does morphing occur? (get names) 3. In which cities and counties is morphing most noticeable (get names) 4. In general how long has morphing been going on in these cities / counties?

(PROMPTS: When did it start? Has it increased over time? Has it spread over time?) 5. What problems with morphing (if any) have come to the D.O.’s attention? (list verbatim).

(PROMPTS: ABC law violations, local violations, underage access, local disturbances, operator conduct, respect for the law).



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6. How serious are these problems for the communities where they occur? (list verbatim). (PROMPTS: Severity of the problem? Persistence? Many groups involved? Drain on local resources? Damage to quality of life and social well being?

7. What records and documentation (if any) does your D.O. keep on morphing activities? Please

describe. (PROMPTS: Where in the case filing system would notations be made for individual licensees regarding complaints about morphing? Is there a cumulative record in the D.O.? Are there opportunities to include data on morphing in reports you make to the ABC Central Office?

8. What is your office doing to help address these issues with morphing? (PROMPTS: How much

staff time is being devoted to deal with morphing issues at present? Has the D.O. issued special directives or projects to take action on morphing? Has your D.O. communicated concerns about morphing to ABC Central Office? What more could the D.O. do to address morphing issues if additional resources were available?).

LOCAL LAW ENFORCEMENT ACTION ON MORPHING 9. Are any local law enforcement agency (LEA) officials in these communities aware of morphing?

(If yes) Could you please describe? (PROMPTS: Which ones come to mind (list them). In general, what are their concerns? How is their law enforcement agency (LEA) working with the ABC on these concerns? What is the local LEA doing to work with other agencies in the local jurisdiction?)

10. Do any of these local agencies (read names in Q5 list) stand out regarding their actions on

morphing? (If yes) Please describe their efforts. (PROMPTS: Are any other local officials taking an active interest in morphing – for example, planning and zoning, code enforcement, city attorney? What steps are they taking?)

COUNTY AOD PREVENTION 11. Does your D.O. have any active County AOD prevention programs? Are you in contact with these

county programs? (PROMPT: Regular basis? From time to time?). Are any of these county AOD prevention programs or their contract providers coalition at work on issues such as morphing (Yes, No). If yes, how can these County AOD programs be helpful to your department?

12. Thank you for your time. Is there anything you’d like to add? Do you have any questions for me?

(If No), Thank you again for your time. You have been most helpful.



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B. MORPHING QUEX for Local Law Enforcement Agencies Questions for the local Sheriff/Police Chief / Key Local Law Enf Official APPLICATION: This guide is designed for in-person interviewing with the respondent. The interview guide can be used either for telephone interviews or on-site interviews. SETUP: Community coalition usual procedures for contacting public agencies and law enforcement. Follow up with telephone calls / letters to the D.O. to set up an appointment. INTRODUCTION: Hi, I’m calling/visiting on behalf of California Council on Alcohol Policy and the local Community Coalition to learn more about this community’s experiences with “morphing” – places that operate under ABC Restaurant Licenses (40, 41, 47) but actually operate more like Public Premises (42, 48) that emphasize drinking (fall below 50 percent food sales) and provide entertainment, games, and other activities that do not involve dining. Cal Council is preparing regarding the extent of morphing in California communities, and the actions being taken by the ABC and local officials to address health and safety problems related to morphing. Our Community Coalition is part of this effort, working on morphing issues in this community. CONFIDENTIALITY (OPTIONAL for LOCAL INTERVIEWING). Cal Council is seeking information about problems, policies and practices, not about specific licensed establishments or licensees. Specific names of licensed establishments or individual licensees may be mentioned during this interview. These names will not be used in the report Cal Council is preparing for statewide initiatives to prevent problematic morphing. However, our local Community Coalition may use this information in connection with its prevention initiatives for the coming year. May I continue the interview on this basis? (Yes / No – if No, thank the official for his/her time and terminate the interview). RESPONDENT INFO. 1. Agency name 2. Name of respondent. 3. Respondent’s position at agency. 4. Length of time respondent in this position. MORPHING ACTIVITY IN THIS COMMUNITY Now I’d like to ask you a few questions about on-sale Restaurant licenses in the (name of community) that “morph” into places that function more like Public Premises (bars) 1. Does Morphing occur in this community?

__ No (If no, thank respondent for his/her time) __ Yes (If yes, continue with the following questions: 2. How many outlets meet the definition of “morphing” that we’ve just reviewed? 3. How long has morphing been going on in here?

(PROMPTS: When did it start? Has it increased over time? Has it spread over time?) 5. What problems occur with morphing (if any) have come to your agency’s attention? (list

verbatim). (PROMPTS: ABC law violations, local violations, underage access, local disturbances, operator conduct, respect for the law)



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6. How serious are these problems for (name of community)? (list verbatim). (PROMPTS: Severity of the problem? Persistence? Many groups involved? Drain on local resources? Damage to quality of life and social well being?

7. What records (if any) does your D.O. keep on morphing activities? Please describe. (PROMPTS:

Are there notations on files for individual licensees regarding complaints about morphing? Any cumulative record or report to the ABC on these complaints?

8. What is your office doing to help address these issues with morphing? (PROMPTS: How much staff time is being devoted to deal with morphing issues at present? Has the D.O. issued special directives or projects to take action on morphing? Has your D.O. communicated concerns about morphing to ABC Central Office? What more could the D.O. do to address morphing issues if additional resources were available?).

9. How does your office work with the XX City Planning & Zoning Department on morphing issues?

(PROMPTS: What procedure do you and the planning/zoning department use to grant permits to on-sale outlets? How do your department and the planning/zoning department work together on morphing issues - please describe a case example (pay special attention to uses of data)? What changes would you and/or the planning department like to make in the current procedures?

10. Does XX Community have an active AOD prevention coalition at work on issues such as

morphing (Yes, No). If yes, does your office work with the coalition? (Yes, No). If yes, how can this coalition be most helpful to your department?

11. We are also looking at the feasibility of collecting local police data describing police events in

connection with morphing on-sales outlets. Can your agency to furnish data in the following format specific to morphing from your department’s CAD & RMS police information system? (Show table below). Could you please direct me to your data management staff who can discuss time, cost, and data availability issues? (See next page)

Local police and ABC incident data (For Last Full Calendar Year) Outlet Type 40, 41, 42, 47, 48 (ABC website)

Outlet Location (ABC website)

Total Police Events for Calendar Year (All Calls for Service)

Total Alcohol & Drug Events (AOD police offenses)

Loud Parties / Noise violations / Disturbances (Calls for Service)

Total Written Reports (RMS) (Total events)

Total Incidents resulting in Arrests (From arrest files)

12. Thank you for your time. Is there anything you’d like to add? Do you have any questions for me?

(If No), Thank you again for your time. You have been most helpful.

Documents

PROPOSAL to CARS on MORPHING Jun 12 2010