California Court of Appeals, Second District, Fifth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS141016 Robert H. O’Brien, Judge.
Jeffer Mangels Butler & Mitchell, Benjamin M. Reznik and Matthew D. Hinks for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Terry P. Kaufmann-Macias, Assistant City Attorney, and Amy Brothers, Deputy City Attorney, for Defendant and Respondent.
MOSK, ACTING P. J.
Plaintiffs and appellants Jack Benetatos and his son Nick Benetatos (plaintiffs) own and operate Tam’s Burgers No. 6 (Tam’s), a fast food restaurant in Los Angeles. They appeal from the trial court’s denial of their petition for writ of mandate that sought to overturn defendant and respondent City of Los Angeles’s (City) determination that plaintiffs operated Tam’s in a manner that constituted a nuisance and the City’s imposition of conditions on the continued operation of Tam’s. Plaintiffs argue that the de novo standard of review applies and that the trial court erred because the conditions at issue were caused by Tam’s being in a high crime area. In affirming the judgment, we hold that the substantial evidence standard of review applies and that there is substantial evidence in support of the administrative determination that plaintiffs’ operation of the restaurant rendered it a nuisance.
I. The City’s Nuisance Investigation and Abatement Proceeding
Tam’s is located at 10023 and 10027 South Figueroa Street at the intersection of Figueroa and 101st Streets in Los Angeles. The site has a 12-space surface parking lot and is adjacent to residential homes. The restaurant has drive-through and walk-up windows.
By a letter dated November 23, 2011, the Los Angeles Police Department (LAPD) informed plaintiff Jack Benetatos that due to recent complaints about Tam’s, it had initiated a preliminary nuisance investigation. The LAPD stated that the crime/nuisance” issues included, but were not limited to, “pimping-prostitution, narcotics use-sales, loitering, transients and intoxicated groups, drinking in public, graffiti and associated trash and debris that encourage loitering.” It suggested conditions on the use of the property to mitigate the nuisance activities.
On April 17, 2012, the Los Angeles Department of City Planning (Planning Department) received a letter from LAPD Officer Mike Dickes concerning the abatement of a nuisance at Tam’s. Officer Dickes stated, “The Southeast Area has been plagued by this location for numerous years with the owner being uncooperative with mitigating the nuisance at his business.” The officer provided a “brief description” of the issues with Tam’s as follows: “1. Extensive calls for service and crime reports at the location, including two
homicides in the last two years and a narcotics arrest involving an employee. [¶] 2. Loitering to [sic] including transients, gang, prostitution and narcotic offenders. [¶] 3. Building is dilapidated and lot is full of trash, debris and graffiti. [¶] 4. Owner was advised of the nuisance associated with the property and was provided with voluntary conditions as of Dec 2011. None of which have been complied with. [¶] 5. Owner has been uncooperative and will not meet physically with officers, stating that all criminal issues associated with the property are a police matter.... [¶] 6. Several citizen declarations involving people living in the area directly affected by the nuisance activity at the location with the file. [¶] 7. Location currently being monitored by 24 hour pole camera operated by the police department depicting the nuisance activity.”
On June 5, 2012, a Planning Department investigator visited Tam’s and prepared a report. The investigator reported that the site was not maintained-there was a “greaser” in the parking lot; rubbish throughout the property; and graffiti on the cement walls, menu signs, and building. The investigator asked the restaurant’s manager why the property had not been maintained. The manager explained that criminal activity had been a problem in the area. He said that each time he painted over graffiti, new graffiti appeared within a couple of days. At some point, the manager decided to leave the graffiti because of the time and cost of addressing it.
In the report, the investigator stated that there had been community allegations about, and LAPD calls for service and arrest for, “criminal homicides, pimping-prostitution, narcotics use-sales, loitering, transients and intoxicated groups, drinking in public, graffiti and associated trash and debris that encourage loitering.... These activities are jeopardizing and/or endangering the public health and safety of persons residing or working on the premises or in the surrounding area, thereby constituting a public nuisance, and contributing to the deterioration of the adjacent community. The activities occurring in and around the premises have generated numerous police responses thereby straining the resources of the Police Department.” Between May 1, 2009, and February 13, 2012, the LAPD made 58 service calls to Tam’s in response to complaints or reports. The crimes committed at Tam’s between June 29, 2007, and January 3, 2011, included a misdemeanor battery, drinking in public, three drug offenses, pimping, two homicides, and two assaults with a deadly weapon.
On June 21, 2012, the Planning Department’s Zoning Administrator held a hearing pursuant to Los Angeles Municipal Code section 12.27.1 (section 12.27.1)“Administrative Nuisance Abatement Proceedings”-to determine whether Tam’s, as operated, constituted a public nuisance and whether to
impose conditions on its operation. At the hearing, plaintiffs testified that they were at the restaurant five days a week; they could not control the nuisance activities outside the property; as soon as they removed graffiti, it reappeared; they always reported graffiti to the LAPD, but the LAPD did not immediately respond because graffiti was not an urgent public safety issue; the restaurant had never been robbed and suffered no damage during the “civil disturbance in the 1990s”; Figueroa Street was an area that prostitutes frequented; Tam’s did not sell condoms, illegal drugs, or alcoholic beverages, and did not promote drug sales on its premises; they could not afford a security guard; the majority of Tam’s customers were area residents; and they provided the LAPD with a trespass arrest authorization-a form that authorized the LAPD to arrest persons unlawfully loitering on the property. Plaintiffs agreed to comply with several operating conditions recommended by the Los Angeles City Attorney, but plaintiffs would not agree to operating conditions that required them to not allow patrons to “linger over a soda or other soft drink for more than 30 minutes”; not allow prostitutes, pimps, drug users or dealers, or homeless individuals to loiter on the property for any purpose; not allow alcoholic beverages to be consumed on the property; paint over graffiti on the property with a matching color within 24 hours; have a California licensed, bonded, and uniformed security guard at the restaurant seven days a week from dusk until the restaurant closed who would, among other things, enforce the suggested operating conditions; install and maintain adequate fencing closing off the space on the north side of the business; implement a 24-hour “hot line” telephone number for any inquiries or complaints about the restaurant or its operation; and limit the restaurant’s hours of operation to 6:00 a.m. to midnight Sunday through Thursday and to 6:00 a.m. to 2:00 a.m. Friday and Saturday.
Officer Dickes testified that the LAPD had attempted to work with Tam’s since 2010 to mitigate nuisance and criminal activity, but plaintiffs had not cooperated. Not all businesses in the area were maintained in a manner similar to Tam’s. A different Tam’s restaurant located at Manchester and Figueroaabout 20 blocks from plaintiffs’ Tam’shad a “similar surrounding environment in terms of nuisance and criminal activities, ” but its physical condition was unlike plaintiffs’ restaurant.
In rebuttal, plaintiffs testified that transients were everywhere and a business owner or operator could not control them. A security guard would cost between $5, 000 and $8, 000 per month, which compensation plaintiffs could not afford.
On October 1, 2012, the Zoning Administrator issued its determination that Tam’s was a public nuisance that required the modification of its operation to mitigate adverse impacts on persons and properties in the surrounding area. The Zoning Administrator found, pursuant to section 12.27.1, subdivision (b), that Tam’s was being operated in a manner that adversely impacted nearby residential or commercial uses; jeopardized or endangered the public health or safety of persons residing or working on the premises or in the surrounding area; constituted a public nuisance; resulted in repeated nuisance activities including but not limited to disturbances of the peace, illegal drug activity, harassment of passersby, prostitution, theft, ...