Circle K Stores v. City of San Buenaventura CA2/6

Filed 7/3/13 Circle K Stores v. City of San Buenaventura CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

CIRCLE K STORES, INC., 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.