HomeMy WebLinkAbout2018-12-10 BOAA signed item 2IN THE MATTER BEFORE THE BOARD OF APPEALS & ADVISORS
OF THE CITY OF CHULA VISTA,
FINDINGS AND DECISION
ON THE APPEAL OF A NOTICE AND ORDER TO VACATE, 3149 MAIN
STREET, CHULA VISTA, CALIFORNIA, AS AN UNSAFE BUILDING AND A
PUBLIC NUISANCE
The above entitled Appeal of a Notice and Order to Vacate 3149 Main Street, Chula Vista,
California, was heard on October 8, 2018. The allegations were that the building was unsafe because
of inadequate egress, was a potential fire hazard, was being maintained as a public nuisance as an
unlawful marijuana business and was otherwise dangerous to human life, in violation of several
provisions of the Chula Vista Municipal Code. The matter was heard by the Board of Appeals &
Advisors of the City of Chula Vista ("Board") at its regular meeting, which is open to the public. The
property owner, Nozad Shaba of Property Matters, LLC ("Appellant") was not present. His
representative, Attorney Steve S. Mattia, was present. Also present were Rosemarie Rice, Secretary
to the Board, and Carol A. Trujillo, Deputy City Attorney, serving as advisor to the Board. Lou El-
Khazen, Building Official/Code Enforcement Manager represented the Code Enforcement Unit of
the Development Services Department, City of Chula Vista ("City"). Mr. El-Khazen was
accompanied by Justin Bruce, Code Enforcement Officer; Justin Gipson, Fire Division Chief/Fire
Marshall; and Deputy City Attorney Megan McClurg, advisor to the Code Enforcement Unit. The
matter was recorded via an audio recording device, including the testimony of witnesses. All of
Appellant's and City's exhibits were admitted into evidence, without objection by either parry, and a
list of said exhibits is attached to this Findings and Decision. The Board took judicial notice of the
City of Chula Vista Charter and Municipal Code.
Having heard and considered all of the evidence and testimony, the Board finds based on a
preponderance of the evidence as follows:
Chula Vista Municipal Code (CVMC) 15.06.075.A, Unlawful Acts, states: "Unlawful Acts.
It shall be unlawful for any person to erect, construct, alter, extend, repair, move, remove,
demolish or occupy any building, structure or equipment regulated by this chapter and the
technical codes, or cause same to be done, in conflict with or in violation of any of the
provisions of this chapter and the technical codes (the state building codes adopted by City)."
2. CVMC 15.06.060.E, Powers and Duties of the Building Official, states: "Occupancy
Violations." When a building or structure or building service equipment regulated by this
chapter and the technical codes is being used contrary to the provisions of this chapter and
the technical codes, the Building Official may order such use discontinued by written notice
served on any person causing such use to be continued. Such person shall discontinue the use
within the time prescribed by the Building Official after receipt of such notice to make the
structure or portion thereof comply with the requirements of this chapter and technical
codes."
3. CVMC 15.06.115.A, Certificate of Occupancy, states: "Use or Occupancy. Buildings or
structures shall not be used or occupied nor shall a change in the existing occupancy
classification of a building or structure or portion thereof be made until the Building Official
has issued a certificate of occupancy."
4. CMVC 15.06.065.1), Unsafe Buildings, states: "Unsafe buildings, structures or appendages
and building service equipment are public nuisance and shall be abated by repair,
rehabilitation, demolition or removal in accordance with the procedures set forth in Chapter
15.18 of the Chula Vista Municipal Code." CVMC Chapter 15.18 is the Abatement of
Dangerous Buildings Code.
5. CVMC 15.06.075.B, Notice of Violation, states: "Notice of Violation. The Building Official
is authorized to serve a notice of violation or order on the person responsible for the erection,
construction, alteration, extension, repair, moving, removal, demolition or occupancy of a
building or structure in violation of the provisions of this chapter and the technical building
codes, or in violation of a permit or certificate issued under the provisions of this chapter or
the technical codes. Such notice of violation or order shall direct the discontinuation of the
illegal action or condition and the abatement of the violation."
6. CVMC 15.06.075.D, Violation Penalties, states: "Violation Penalties. Any person who
violates a provision of this chapter or the technical codes or fails to comply with any of the
requirements thereof or who erects, constructs, alters or repairs a building or structure in
violation of the approved construction documents or directive of the Building Official, or of a
permit or certificate issued under the provisions of this chapter and the technical codes, shall
be subject to the penalties as prescribed by law."
7. California Civil Code section 3491 authorizes abatement as a remedy against a public
nuisance. Section 3494 of the Civil Code authorizes a public body or officer to abate public
nuisance.
8. CVMC 5.66.020.A, Commercial Marijuana Activity Prohibited, states: "Commercial
marijuana activity is prohibited in the City of Chula Vista, and no person or association of
persons, however formed, shall operate, perform, participate in or locate a commercial
marijuana activity in the City. The City shall not issue, approve, or gran any permit, license
or other entitlement for the establishment or operation of commercial activity in the City of
Chula Vista."
9. CVMC section 5.66.040, Public Nuisance — Penalties, states: "Any use or condition caused
or permitted to exist in violation of any of the provisions of this chapter shall be, and is
hereby declared, a public nuisance, which may be abated by the City pursuant to the
procedures set forth in this code, and be subject to any associated civil or criminal remedies,
including but not limited to injunctive relief, except to the extend expressly and validly
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preempted by state or federal law."
10. On August 29, 2018, City issued Appellant a Notice and Order to Vacate for 3149 Main
Street, Chula Vista, alleging: unpermitted construction and alterations; unsafe building;
inadequate egress; potential fire hazard; being maintained as a public nuisance as an unlawful
marijuana business; and otherwise dangerous to life.
11. On September 6, 2018, Appellant filed a timely appeal with the Board of Appeals &
Advisors, denying the allegations and asking that the Notice and Order to Vacate be reversed.
12. Appellant owns 3149 Main Street, a commercial building that operated as the Chula Vista
Firehouse from early 2017 to October 2018, in Chula Vista, California.
13. The Chula Vista Firehouse is an illegal marijuana dispensary engaged in prohibited
commercial marijuana activity based on the following evidence: advertising; signage;
interior decor; marijuana for sale in display cases in an interior portion of the building seen
and smelled by staff; undercover purchases of marijuana at the business by Chula Vista
Police Department officers; security measures in the building consistent with commercial
marijuana sales such as an electromagnetic lock on an interior door and staff allowing only
marijuana customers beyond the locked door; and glass display cabinets visible in photos
provided by Appellant. Additionally, it operated as an illegal commercial marijuana business
at 1445 Third Avenue before moving to 3149 Main Street. Based on the foregoing, on the
dates noted in the City's numerous violation notices and the Notice and Order to Vacate,
Appellant allowed the operation, performance, participation in and location of an illegal
commercial marijuana activity at 3149 Main Street in the City of Chula Vista.
14. Because it operated in violation of CVMC 5.66.020, the building at 3169 Main Street is a
public nuisance pursuant to CVMC section 5.66.040, which may be abated as provided by
the Chula Vista Municipal Code and state law.
15. Appellant was aware that illegal commercial marijuana activity operated, was performed and
was located on his property because Appellant received numerous notices of violation of
CVMC 5.66.020 from 2017 to August 2018.
16. Based on staff observation, the building had unpermitted interior walls, doors and electrical
work. Justin Gipson, Fire Division Chief/Fire Marshall, testified that the electromagnetic
door was inadequate egress, a potential fire hazard and danger to human life because it was
installed without the required permit or inspection. Therefore, it could not be demonstrated
that the interior door with an electromagnetic lock could be opened during a fire. Thus it had
the potential to trap people inside. A Fire Safety Inspection Report concluded that the
construction at the building was completed without required permits and that the building
was to be returned to its original state by removing the interior walls, door and electrical
work.
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17. Mr. El-Khazen testified that by staff could not issue permits for the walls, door and electrical
work retroactively, because such permitting was expressly prohibited for illegal marijuana
businesses pursuant to CVMC 5.66.020.
18. Appellant did not dispute that 3149 Main operated as illegal commercial marijuana activity
in violation of CVMC 5.66.020 or that, as such, it is a public nuisance, in violation of CVMC
5.66.040. According to Mr. Mattia, who said he was hired the day of the hearing to represent
Appellant at the hearing, the tenant operated the illegal commercial marijuana activity at
Appellant's property and was responsible for unpermitted improvements at the property. Mr.
Mattia testified that the tenant had moved out recently. Mr. Mattia introduced into evidence
five (5) color photographs he stated he had taken earlier in the day of the hearing. The
photographs showed the interior sales room, which was off the lobby and secured by the door
with electromagnetic lock. The sales room was vacant with empty display cases.
19. Appellant, in his written appeal application form, denied that the building was improperly
occupied, had inadequate egress, was a potential fire hazard and was dangerous to human
life. Appellant alleged that the building was not unsafe as it confirmed to all state and local
building code requirements and that a fire inspection had been done that confirmed there
were no issues as to the building being a fire hazard, no danger to the public.
20. When questioned about the Appellant's alleged fire inspection, Mr. Mattia stated that he was
not involved in filling out the appeal form and could not provide additional information.
21. In light of paragraphs 19 and 20 and the record, Appellant did not provide any evidence to
support his denials that the building was improperly occupied, had inadequate egress, was a
potential fire hazard and was dangerous to human life. Appellant also did not provide any
evidence to support his claim that the building was not unsafe, on the ground it conformed to
all state and local building code requirements, or that a fire inspection had been done that
concluded there were no issues as to the building being a fire hazard, no danger to the public.
22. Mr. Mattia stated Appellant desired to cooperate with City staff to remedy the violations,
such as obtaining permits to demolish the unpermitted tenant improvements and returning the
building to the condition it was in before the unpermitted tenant alterations. City staff stated
they would assist Appellant in obtaining demolition permits.
Based on the foregoing, the Appellant's Appeal is DENIED, and the Notice and Order to Vacate is
UPHELD. The appeal fee will be added to the City's costs of abatement/ vacation, which will be
billed to Appellant or levied and assessed against the property as a special assessment lien. Pursuant
to CVMC section 1.40.020.1-1, unless and until a timely request for judicial review is filed,
enforcement of the final decision may proceed in due course.
L,
Notice Pursuant to California Code of Civil Procedure Section 1094.6
Notice is hereby provided that Appellant may appeal this decision by filing an appeal in the San
Diego Superior Court pursuant to Government Code section 53069.4(b)(1) on or before the 90th
day after this decision is served. This decision is deemed served on the date noted in the attached
Certificate of Mailing/Proof of Service.
By:
0
Jose Doria
Chair
Board of Appeals & Advisors
Attachments:
1. Exhibits List
2. Certificate of Mailing/Proof of Service
Date: / 2 - / 0
Exhibits List
City's Hearing Package for Item 3, Appeal of a Notice and Order to Vacate, 3149
Main Street
2. Six (6) color photographs of interior of 3149 Main Street, the sales room behind
door secured by an electromagnetic lock, taken on October 8, 2018 by Attorney
Steve S. Mattia (showing vacant interior, empty display cases)
C,
BEFORE THE CITY OF CHULA VISTA
In the Matter of.
Property Matters LLC's Appeal of the Notice
and Order to Vacate 3149 Main Street, Chula
Vista, California
CERTIFICATE OF MAILING/
PROOF OF SERVICE
Hearing Officer: Board of Appeals & Advisors
Hearing Date: 10-08-2018
Hearing Location: 276 Fourth Avenue, Chula
Vista, CA
CERTIFICATE OF MAILING/PROOF OF SERVICE
I, the undersigned, certify and declare that I am a citizen of the United States, over the age of 18
years, employed in the County of San Diego, State of California, and not a party to the above -
entitled cause. On \ _ \% (date) I served by mail a copy of:
FINDINGS AND DECISION ON THE APPEAL OF A NOTICE AND ORDER TO VACATE,
3149 MAIN STREET, CHULA VISTA, CALIFORNIA, AS AN UNSAFE BUILDING AND A
PUBLIC NUISANCE in the above entitled case on the following:
Property Matters, LLC
c/o Nozad Shaba
608 Sandra Lane
El Cajon, CA 92019
I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct.
DATED: -- \ \— �%
Rosemarie Rice
Secretary, Building Division
City of Chula Vista
7
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1. Article Addressed to: -
Steve Mattia
Attorney at Law
343 East Main Street, Ste. 202
El Cajon, CA 92020
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