Huntington Beach City Councilman Keith Bohr has appealed the Planning Commission's decision to deny Bomburger restaurant a permit to serve beer and wine to customers, claiming the decision may have violated the downtown business' due process and the spirit of a city policy.
The resolution, adopted in January 2010, requires all downtown businesses serving alcohol to close at midnight. Bomburger, however, wanted to keep its 2 a.m. closing hours, but offered to stop serving beer and wine at 10 p.m.
"I'm doing probably 75% of my monthly business between 11 p.m. and 2 a.m. on Thursday, Friday and Saturday," said owner Rob Sleenhof.
Bohr wrote in his appeal filed Friday that he was surprised with the way the commission and citizens, who spoke against the permit, interpreted the resolution.
"It seems to me the request is very much in alignment with the resolution, if not by a 'strict' interpretation, then certainly in the 'spirit' of which the resolution was passed," Bohr wrote.
Bohr's decision to appeal saved Sleenhof the $3,045 nonrefundable city fee he would have had to pay to appeal the decision on his own.
"Honestly, I was fine with not even appealing it," Sleenhof said. "Other people think that I didn't get a fair hearing."
Bohr argued that Sleenhof was not given a fair and impartial hearing because at least two of the planning commissioners, Blair Farley and Mark Bixby, serve on the board of the Huntington Beach Downtown Residents Assn., a group that fights the number of bars downtown and their effects on the city's DUI statistics, among other issues.
Bohr wrote in the appeal that both commissioners spoke to Kim Kramer, the association's spokesman, about Bomburger's request on several occasions before the commission voted.
"The last thing the city of Huntington Beach needs is more lawsuits to litigate along with the costs, financially and via the negative press that comes with such litigation," Bohr wrote.
Bohr's argument against Farley and Bixby lacks credibility, Kramer said.
"Councilman Bohr is off target," he said. "There is no restriction on any City Council appointee having any political or community affiliations."
City Atty. Jennifer McGrath confirmed Kramer's statement, but said it would be up to the appointee or council member to recuse a vote if he or she feels unable to make a fair decision.
But Farley and Bixby were not the only members who spoke with Kramer about Bomburger.
Commissioners Erik Peterson and Elizabeth Shier Burnett met with Kramer before the commission voted on Bomburger's request. Unlike Farley and Bixby, Peterson and Shier Burnett voted against the motion to deny the permit.
Peterson and Shier Burnett were also among the four planning commissioners whom Bohr contacted Jan. 25, before the commission voted on Bomburger's request — a move that raised concerns of a possible open-meeting laws violation. Three of the four who spoke with Bohr voted against the motion to deny the permit, including Peterson and Shier Burnett.
Bohr did not return a call regarding the appeal.
Councilman Don Hansen didn't want to comment specifically on Bomburger for the sake of giving the business a fair hearing, but said he's generally concerned with the number of establishments that serve alcohol downtown.
"My concern with downtown is we have an over-saturation of alcohol licenses," he said.
There's another piece of the puzzle that might complicate matters.
Although Bomburger has an indoor and outside patio, it's technically a takeout restaurant because it has less than 12 seats and did not pay the one-time in-lieu parking fee, which is paid by all downtown restaurants with 12 or more seats, said Tess Nguyen, city associate planner.
The fee is based on how many parking spaces a restaurant would need to accommodate its customers. According to the 2009-10 numbers, each space cost $17,000, Nguyen said. The amount is adjusted each year based on the consumer price index. Nguyen could not provide the current figures.
Nguyen said the parking fee and serving alcohol are two separate issues.
But Farley argues that giving Bomburger the permit to serve alcohol without requiring it to pay the parking fee or even complete a parking analysis would be unfair to other establishments that have to take those measures. He cited Coach's Mediterranean Grill as an example of a restaurant that had to complete parking analysis when it expanded.
"If we're now changing the use of the restaurant and allowing people to stay in and eat, are we doing the full analysis of the changes in the use? That is essentially where my concern lies," Farley said.
Sleenhof, who owns the two Chronic Tacos locations in Corona del Mar and Huntington Beach, and is currently in the middle of a lawsuit over name infringement with Chronic Taco Enterprise, said he applied for the permit to boost Bomburger's business.