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2A - Docket No. 2008-01 - 1124 Pearl St. - Nitro Club appealing a use determination of the Zoning Administrator.,a~.~ ~ ~ ~ CITY OF BOULDER Planning and Development Services 1739 Broadway, Third Floor • P.O. Box 791, Boulder, Colorado 80306-0791 phone 303-441-1880 • fax 303-441-3241 • email plandevelop@ci.boulder.co.us www.ci. boulder.co.us/pwplan! MEMORANDUM Mazch 14, 2008 TO: FROM: SUBJECT: BOZA Brian Holmes, Zoning Administrator Nitro Club, 1124 Pear] Street. The purpose of this memo is to list and provide a brief description of the materials related to the use determination appeal by the Nitro Club. 1- Excerpts from both the Use Charts from 9-6-1 and associated definitions found in 9-16. 2- A copy of the Weekly Information Package (WIP) prepared for City Council, dated I/16. This packet includes the original letter sent to the Nitro C(ub by Neil Poulsen, Chief Building Offfcial, on 12/21. 3- A copy of the follow up staff inemo to the Nitro Club representative, dated 2/19. 4- Nitro Club letter dated 1/6, written in response to Neil Poulsen's 12/21 letter. 5- Nitro Club letter dated 2/20, the formal request to appeal stafPs use determination. 6- Floor plans provided by applicant. Land Use Code -Use Standards §9-6.1, Schedule of Permitted Land Uses TITLE 9 Land Use Code Chapter 6 Use Standards[ 9-6-1. Schedule of Permitted Land Uses. The schedule shows the uses which are permitted, conditionally permitted, prohibited or which may be permitted through use review pursuant to section 9-2- I5, "Use Review," B.R.C. 1981. (a) Explanation of Table Abbreviations: The abbreviations used in table 6-l of this section have the following mean- ings: (1) Allowed Uses: An "A" in a cell indicates [hat the use type is permitted by right in the respective zoning districi. Permitted uses are subject to all other applicable regulations of this title, including the development standatds set forth in chapter 9-9, "Development Standards;' B.R.C. 1981. (2) Conditional Uses: A "C" in a cell indicates that the use type will be reviewed in accordance with the procedures established in section 9-2-2, "Administrative Review Procedures," B.R.C. 1981. Conditional use applications shall also meet the additional standards se[ forth in sections 9-6-2 through 9-6-9, B.R.C. 1981, for "Specific Ilse Standards," or other sections of this title. (3) Use Review Uses: A "U" in a cell indicates that the use type will be reviewed in accordance with the procedures established in section 9-2-15, "Use Review," B.R.C. 1981. Use review applications shall also meet the addi- tional standards set forth in sections 9-6-2 through 9-6-9, B.R.C. 1981, for "Specific Use Standards." (4) Ground Floor Restricted Uses: A "G" in a cell indicates [hat the use type is permitted by right in the respecH~~e zoning district, so long as i[ is located above or below [he ground floor, otherwise by use review only. (5) Residential Restricted Uses - M: An "M" in a cell indicates the use is permitted provided a[ (east fifty percent of the floor area is for residential use and the nonresidential use is less than seven thousand square feet per buhr ing, otherwise by use review only. (6) Residential Restricted Uses - N: An "N" in a cell indicates the use is permitted provided at least fifty percent of [he floor area is for nonresidential use, otherwise by use review only. (7) Prohibited Uses: An asterisk symbol in a cell indicates [hat the use type is prohibited in the zoning district. (8) Additional Regulations: There may be additional regulations that aze applicable to a specific use type. The exis- tence of these specific use regulations is noted through a reference in the last column of the use table entitled "Specific Use." References refer to subsections of sections 9-6-2 through 9-6-9, B.R.C. 1981, for "Specific Use Standards." Such standards apply [o all districts unless otherwise specified. (9) n/a: Not applicable; more specific use applications apply. f (b) Interpretation: The city manager may decide questions of interpretation as to which category uses not specifically listed are properly assigned to, based on precedents, similar situations and relative impacts. Upon written applica- tion, the BOZA may determine whether a specific use not listed in table 6-I of this section is included in a specific use category. Any use not specifically listed in table 6-1 of this section is not allowed unless it is determined to be included in a use category as provided by this section. (c) Multiple Uses of Land Permitted: Permitted uses, conditional uses and uses permitted by use review may be located in the same building or upon the same lot. (d) Use Table: ~ Adopted by Ordinance No_ 7476. Supp. 95, February ?008 Boulder, Colorado -land Use Code Page 9-6-I Zoning District Use Module Form Module Intensity Module (abbreviation) Downtown 4 (DT-4) Dl q 27 From 9-5-I B.R.C. 1981 http://www.colocode.com/houlder2/chapter9-S.htm Use Definitions "Indoor amusement establishment" means a commercial operation open to the public without membership requirements, including, without limitation, bowling alleys, indoor arcades, theaters, pool halls, skating rinks, dance halls, and reception banquet facilities. "Restaurant" means an establishment provided with a food prepazation area, dining room equipment, and persons to prepare and serve, in consideration of payment, food or drinks to guests. "Tavern" means an establishment serving malt, vinous, and spirituous liquors in which the principal business is the sale of such beverages at retail for consumption on the premises and where snacks are available for consumption on the premises. "Small theater or rehearsal space" means an establishment for live dramatic, operatic, or dance performances open to the public, without membership requirements, whose seating capacity does not exceed three hundred seats and seating area does not exceed three thousand square feet, or any area for the rehearsal of such live performances. From 9-16-1 B.R.C. 1981 http://www.colocode.com/boulder2/chapter9-16.htm 9-6-1 W 9-6-1 HRE' RB2X RR - HRD ~ RD3X existing, - ER" MRE MAD' MXR MXR HRX TBE 'CBD RDE RB2E ISE IGE IME (m be deleu;d) LRE LRD MRX' -E D Hg HRI% MH MUX MUD RMS TBD BMS CBE CSE RDD RDIE RBIX RD7E ISD IGD U1D IMS P A Specific Use modules ~ Rl R2 R3 R4 RS .$6 R7 MH Ml M2 M3 Bl B2 B3 B4 BS Dl D2 D3 Il L^. I3 I4 P A Use Standard Dining And Entertainment Ari or craft studio space * U U U U U U * A A A A A A A A A A A A A + A U * 52,000 squaze feet An or craft studio space * U U U U U U * M U U A A A A A A A A A A * p * * >2,001 squaze feet Commercial kitchens and * * " * * * * * * * * * U U U U U A A A A * + catering ~ Indoor amusement estab- * * * * * * * * * * U U U A U U U * * * * * lishment MuSeumS * * * - * * - * * * * * U A A A A A A A U U U U Restaurants (general) n/a Na Na n/a Na Na Na Na Na Na Na Na Na n/a Na Na Na Na Na C C C C Na Na 9-6-5(b) Taverns (general) n/a Na Na n/a Na Na Na Na Na Na Na Na Na n/a Na n/a Na Na Na * * * * Na n/a Restaurants and taverns no * * * * * U A * A A A Na Na n/a Na n/a Na Na Na Na Na Na Na Na n/a larger than 1,000 square feet in floor area, which may have meal service on an outside patio no[ more than [he floor area, and which close no later than 11:00 p.m. A: Allowed use. C: Conditional use. See section 9-2-2 for administrative review procedures. Use prohibited. U: Use review. See section 9-2-15 for use review procedures. G: Allowed use provided that it is located above or below the grou¢d floor. M: Allowed use provided at least 5090 of the floor area is for residential use and the nonresidential use is less than 7,000 square feet per building, otherwise use review. N; Allowed use provided at ]east 5090 of floor area is for nonresidential use, otherwise by use review. n/a: Nat applicable; more specific use applications apply. April 2007 Land Use Code /City o/'Bould r e 9-6-1 j' CIV~ 9-6-1 ' HAE RffiX AR "HttD RB3% 6 ER MRE MRD, .MXR ~MXR ~HRX ez~sun -TBE CBD . ~RBE RB]E ISE' IGE IMB (to be delemdJ LRE LRD 'MR% E. D.,~ HZE.' ,HR1X -MH MIJX MUD -RM$ iBD BM$ CBE CSE ABD RB1E RB1X RB3E ISD IGD. IMD IMS:. R A,I' Specific Use modules ~ ~ Rl R2 R3 R4 RS' t26 R7 MH Ml M2- M3 Bl B2 B3 B4 BS D1 D2 D3 Il I2 I3 I4~ P A Use Standard Restaurants and taverns no * * * - * * * * + q * U A A A A A A C Na Na Na Na Na n/a 9-6-5(b) lazger than 1,500 square feet in floor azea, which may have meal service on an Dutside patio not more than '/r the floor azea, and which close no later than ' 11:00 p.m. Restaurants and taverns ~ * ~ * ~ ~ * ~ ~ U * * U A U Na Na Na Na Na Na Na Na Na Na Na Na Na Na over 1,000 squaze fee[ in floor area, or which close ' after 11:00 p.m., or with an outdoor seating area of 300 square feet or more Restaurants and taverns - * * * Na Na Na Na Na Na U U A A A A A U Na Na Na Na Na Na that are: over 1,500 square ' feet in floor azea, outside of the University Hill gen- eral improvement district; over 4,000 square feet within the University Hill general improvement dis- [ricq or which close after 11:00 p.m. A Allowed use. C: Conditional use. See section 9-2-2 for administrative review procedures. Use prohibited. U: Use review. See section 9-2-15 for use review procedures. G: Allowed use provided that it is located above or below the ground floor. M: Allowed use provided at ]east 50% of the floor area is for residential use and the nonresidential use is less than 7,000 square feet per building, otherwise use review. N: Allowed use provided at least 50% of floor area is for nonresidential use, otherwise by use review, n/a: Not applicable; more specific use applications apply. April 2007 Land Use Code /City of Boulder ti 9-6-1 9-6-1 . HRE' -RBIX RR ~HRD. Ra3X existing ER MRE MRD MXR- MXR. NRX ~ ~ TBE CBD RBE RB2E ISE [GE IML (m be deleted) LRE LRD MRX E D ~ HZE HRIX MH MUX MUD RMS 78D BMS CBE CSE RBD RBIE RBIX RIi3E [SD [GD [MD IMS P A Specific Use modules Rl R2 R3 R4 RS R6 R7 MK Ml JI2 M3 Bl B2 B3 B4 BS Dl D2 D3 Il I2 I3 I4 P A Use Standard Restaurants and taverns in n/a Na Na Na Na Na Na Na Na Na Na Na C Na Na Na Na Na Na Na Na Na Na Na n/a 9-6-5(b) the University Hill general improvement district that are greater than 1,500 square fee[ and do no[ ~ ' exceed 4,000 square feet in floor area, and which close no later than 11;00 p.m. Restaurants and taverns n/a Na Na n/a Na Na Na Na Na Na Na U L' U U U U U U Na Na Na Na Na n/a with an outdoor seating area of 300 square fee[ or more within 500 feet of a residential zoning district Small theater or rehearsal * ' * ' * * * * * * * U U U A U U U A A U A * space Temporary outdoor enter- * * * * * * C C C C C C C C C C C C C * 9-6-5(c) tainment Lodging uses: Hostels * * * * U U * U A U U G A * A G G U * U U * * * Bed and breakfasts * * * * U A * U A A * * * * * * * * * * * * * * 9-6-5(a) Motels and hotels * - * * * * * * * * U A A * A A A U * * * * i A: Allowed use. C: Conditional use. See section 9-2-2 for administrative review procedures. Use prohibited. U: Use review. See section 9-2-15 for use review procedures. G: Allowed use provided that it is located above or below the ground floor. M: Allowed use provided at least 60%a of the floor area is for residential use and the nonresidential use is leas than 7,000 square feet per building, otherwise use review. N: Allowed use provided at least 50% of floor area is for nonresidential use, otherwise by use review. n/a: Not applicable; more specific use applications apply. April 2007 Land Use Cade /City of Boulder WEEKLY INFORMATION PACKET To: Mayor Shaun McGrath and Members of City Council From: Frank Bruno, City Manager Stephanie Grainger, Deputy City Manager Jerry Gordon, Acting City Attorney David Gehr, Acting Deputy City Attomey Sandra Llanes, Assistant City Attomey II Mark Beckner, Chief of Police Dave Lowrey, Fire Battalion Chief Ruth McHeyser, Acting Planning Director Robert Ray, Land Use Review Manager Brian Holmes, Zoning Administrator Maureen Rait, Director of Public Works/Development and Support Services Neil Poulsen, Chief Building Official Brett Weideman, Code Enforcement Supervisor Mishawn Cook, Licensing Clerk Aate: February 7, 2008 Subject: Update on Nitro Club, 1124 Pearl Street EXECUTIVE SUMMARY: A letter was issued to the business and property owners of the Nitro Club on Dec. 21, 2007 listing 20 code violations (fire, building and landmark alteration codes) that needed to be addressed. The letter also requested that the business owner provide Planning & Development Services (P&DS) with additional information about how the business operates in order to determine if a use review is necessary or if the business meets the property's current use designation and can continue to operate "by right." The city's investigation into code violations and a potential use review at this business are consistent with how city staff responds to all complaints received. For example, during 2007, code compliance cases for commercial businesses included five building, 14 land use, and 106 sign code violations for commercial properties. During 2007, the Fire Department and P&DS also routinely conducted joint inspections of commercial businesses (similar to the inspections at Nitro Club). Consistent with haw the city of Boulder has worked with other businesses, the Nitro Club was allowed to continue temporary operation while the business operator worked to come into compliance. As of Jan. 31, fire code issues were resolved. All building code issues were also resolved except for minor electrical work that was completed on Wednesday, Feb. 6. One identified exit is being installed next week. With respect to state liquor laws, the Nitro Club is operating legally. 1 In relation to the land use status, the city has determined that a use review is required. Since there is currently no specific use category for sexually oriented businesses, staff has determined that the Nitro Club is a use most similar to a theater. Additionally, staff has determined that the proposed food service component of the Nitro Club is an accessory "restaurant" use that is subordinate to the theater use. (Theaters require a use review approval and restaurants are allowed by right.) This determination was communicated to the business owner on Jan. 31, 2008, together with a revised schedule that requires the applicant to submit either an application for use review no later than March 3, 2008, or file an appeal of the staff decision regarding its interpretation of the use as a "theater" to the Board of Zoning Adjustment (BOZA) no later than Feb. 20, 2008 (in order for the appeal to be heard by BOZA at its March 13, 2008 meeting). Any interpretation made by BOZA would be subject to call-up by the Planning Board. If acted on by the Planning Board, its decision would then be subject to call-up by the City Council. The applicant has also been told that a landmazk alteration certificate application for changes to the doors on Pearl Street and the alley must be submitted by Feb. 12. In response to a City Council request, information on what other metro area communities are doing to address sexually oriented businesses has been researched and the steps necessary for developing a regulation in Boulder have been identified. If City Council is interested in pursuing this type of policy discussion, it could be added to the agenda for the joint study session between the City Council and Planning Board that is cun•ently being scheduled. FISCAL IMPACT: Costs for the development and implementation of potential code changes would be evaluated as council work program priorities for 2008 aze further refined. Citywide code enforcement resources are annually assessed as part of the budget process. COMMUNITY SUSTAINABILITY ASSESSMENTS AND IMPACTS: • Economic: The consistent application of land use, building and fire codes and standards that reflect community objectives support all segments of the community and a sustainable economy. • Environmental: The application of city codes, coordinated inspections and the routine monitoring of commercial activities assist in the management of environmental impacts. • Social: Land use requirements and public safety elements of the city's codes address the social impacts of the Boulder community by supporting the management of potential impacts to life and property. There are some community perceptions that the city is being too strict in enforcing its regulations and may be targeting this business because of its land use. There are other community perceptions that the city should be more strictly regulating this business because of its land use. 2 BACKGROUND: At the Jan. 8, 2008 City Council meeting, City Manager Frank Bruno provided an update on activities involving the Nitro Club and reported the following: • Fire Dept. and Planning & Development Services staff inspected the Nitro Club at 1124 Pearl St., on Dec. 19. A letter outlining city code violations and actions required was sent to the owner and the tenant on Dec. 21. Owner and tenant have been in contact with city staff since then to discuss necessary steps to achieve compliance. All building and fire code violations must be remedied by Thurs., Jan. 31 and appropriate applications for necessary land use review submitted by Jan. 31. • The detailed list of violations outlined in the Dec. 21 letter was provided to City Council at the Jan. 8 meeting and is included here as Attachment A. • The violations include that no permits were obtained or inspections conducted for work performed, including some electrical and plumbing work. Staff also requested additional operational information about Nitro Club to determine the specific type of land use approval needed. Based upon the currently available information, it is anticipated that a Use Review will be needed and may be referred to the Planning Board for a board decision (subject to City Council call up). The property location is with the downtown historic district, which will also require a Landmark Alteration Certificate for signage and all exterior alterations. • To date, Police responded to a Dec. 18, 2007 call involving an intrusion alarm and criminal mischief and a Dec. 21, 2007 disturbance involving the brandishing of a weapon. The Boulder Police Department (BPD) continues to monitor activities as part of its downtown enforcement patrols. • The code violations observed on Dec. 19 and the Dec. 21 police disturbance have also resulted in the issuance of a notice (to the owner and tenant) of potential nuisance abatement action, should there be additional code violations at this property. • This business does not currently have a beverage license and no application for a beverage license has been submitted to the city. Staff is evaluating this situation to determine if a license is needed. • An update on these activities is expected to be provided on Feb. 1. • The policy discussion related to any potential regulation of sexually oriented businesses could be added to the agenda for the joint study session between the City Council and Planning Board tentatively scheduled for February. 3 In response to this information, City Council requested that the next staff update include an analysis of the beverage license issue and provide information on what other metro area communities are doing to address sexually oriented businesses. Staff was also asked to clarify how 18 to 21-year-olds are managed in the club and the extent of any accessibility requirements related to the building code issues. ANALYSIS: An Evaluation of the Beveraee License Issue The Nitro Club is open from 7 p.m. to 4 a.m. Thursdays, Fridays and Saturdays. The club charges a cover charge of $10 to get in and requires customers to purchase at least two non-alcoholic drinks inside. Alcoholic beverages are not provided by the club. However, club patrons may bring in their own alcoholic beverages if they have a monthly or yearly membership. A one year membership at the Nitro Club costs $500 and a monthly membership costs $50. The club has a private section (the "private club") where club members who have brought in their own alcohol can drink. The club provides members with cups, ice, etc., ("setups") for their liquor drinks. The Colorado Liquor Code (Code) prohibits consumption of alcoholic beverages in an unlicensed public place. However, there is no state regulation which prohibits consumption of alcohol in a private place. There is also no law which prevents private clubs from allowing its members to bring in their own alcohol. In fact, a private club can provide its members who bring in their own alcohol with setups (cups, ice, mixers, etc.) so long as it is provided during times that service of alcohol is allowed.[ The sale or service of alcohol is prohibited between the hours of 2 a.m. and 7 a.m. Therefore, the private club cannot provide setups between the hours of 2 a.m. and 7 a.m.Z In addition, the private club area must be sectioned off so that the public cannot access it without being a paying member. Conversely, alcoholic beverages are prohibited in the public area which is monitored accordingly. Membership must be legitimate and not a subterfuge for a public drinking establishment. The club manages customers between the ages of 18 and 21, by controlling access to its 21 and over private club members' area. The private members area is physically separated from the rest of the club, with access restricted by a door that is staffed. In summary, with respect to liquor laws, the Nitro Club is operating legally. ~ C.R.S. 12-47-901(5)(b)(I) Z C.R.S. 12-47-901(1)(1) ...it is unlawful for any person to regularly provide premises, or any portion thereof, together with soft drinks or other mix, ice, glasses, or containers at a direct or indirect cost or charge to any person who brings alcohol beverages upon such premises for the purpose of consuming such beverages on said premises during the hours in which the sale of such beverages is prohibited or to consume such beverages upon premises operated in the manner described in this paragraph (i). 4 Land Use Determination The land uselzoning portion of the Dec. 21, 2007 letter from staff indicated that based upon available information, a use review would be required and that additional information was needed from the business owner to better understand the operational characteristics of the club. The letter also requested that the business owner identify the use category related to this business. The city also indicated that compliance must be achieved by Jan. 31, 2008, by either resolving the land use/zoning issue, or submitting the appropriate applications necessary to request city approval. The business owner's legal representative provided the requested supplemental information on Jan. 16; based on that information, staff concluded that there is no use category within the land use code into which the Nitro Club can be clearly assigned. The city has determined that the characteristics of the Nitro Club (i.e., its principal use) are most like that of a "theater," which is included within the definition of "Indoor amusement establishment," as defined within section 9-16 of the land use code. The service of food and drink results in its having a "restaurant" as an accessory use. As a "theater" the Nitro Club cannot be considered a "by right" use in the Central Business District (DT-4) zone district, and requires a use review approval; restaurants can be operated "by right" within the DT-4 zone district, and that use would not require discretionary review. This determination was communicated to the business owner on Jan. 31, 2008, together with a revised schedule that requires the applicant to submit either an application for use review no later than March 3, 2008, or file an appeal of the staff decision regarding its interpretation of the use as a "theater" to the Board of Zoning Adjustment (BOZA) no later than Feb. 20, 2008 (in order for the appeal to be heard by BOZA at its March 13, 2008 meeting). Any interpretation made by BOZA would be subject to call-up by the Planning Board. If acted on by the Planning Board, its decision would then be subject to call-up by the City Council The applicant has also been told that a landmark alteration certificate application for changes to the doors on Pearl Street and the alley must be submitted by Feb. 12. Relevant land use definitions from the Boulder Revised Code are included below. "Indoor amusement establishment" means a commercial operation open to the public without membership requirements, including, without limitation, bowling alleys, indoor arcades, theaters, pool halls, skating rinks, dance halls and reception banquet facilities. "Accessory use" means a use located on the same lot as the principal building, structure, or use to which it is related and that: (1) Is subordinate to and customarily found with the principal use of the land; (2) Is operated and maintained for the benefit or convenience of the occupants, employees, and customers of or visitors to the premises with the principal use. 5 Reaulatine Sexually Oriented Businesses The city does not currently regulate sexually oriented businesses. The legal steps necessary for the regulation of sexually oriented businesses are provided here in order to assist the City Council in determining whether to consider proceeding with a potential code change. In preparing this information, a review of ordinances regulating sexually oriented businesses from 11 different Colorado cities was undertaken. The local ordinances run the gamut in terms of how they regulate these types of uses. Any proposed ordinance that completely bans a sexually oriented business on the basis that it dealt with obscene materials, expression or conduct would likely be held unconstitutional. The constitution prohibits any regulation intended to suppress expression on the basis of its allegedly obscene content. This type of content-based regulation would be judged under the highest scrutiny - a strict scrutiny standard. In other words, overcoming a challenge to this type of regulation requires a showing that "the regulation is a precisely drawn means of serving a compelling state interest." 3 It is highly unlikely that acontent-based regulation of expression would survive the strict scrutiny standard. However, regulations related to time, place and manner are considered content-neutral and therefore much more likely to be upheld. Time, place and manner regulations must serve a substantial governmental interest, must be narrowly tailored to serve that purpose, and must not unreasonably limit alternative means of communication.4 A substantial governmental interest can be established by identifying adverse secondary effects created by sexually oriented businesses. Examples of adverse secondary effects cited by other cities include: unlawful sexual activities, an increase in sexually transmitted diseases, a deleterious effect on surrounding businesses, declining property values in surrounding businesses, declining property values in surrounding residential neighborhoods, increased crime, increased blight, and deteriorating quality of life in the areas near these types of establishments. Zoning regulations and/or licensing requirements can be used to minimize the secondary adverse effects of sexually oriented businesses if they are narrowly tailored to serve that purpose. Typically, cities either employ one or both of these methods. For example, an ordinance that regulates the location of a sexually oriented business or regulates aspects of how it is operated, for the purpose of reducing specific adverse effects, would likely be upheld. Steps for Developinng a Regulation: If City Council is interested in pursuing potential regulation of sexually oriented businesses, the following are the necessary steps: 1. Identify the secondary adverse effects of these businesses that you want to minimize. ' Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 540 (1980). "Barnes v. Glen Theatre, Inc., 50] U.S. 560 (1991). 6 2. Research and obtain documentation to support the adverse effects cited. 3. Explain how the restriction (such as location restriction} relates to reducing those effects. 4. Craft an ordinance that is rationally related to the purposes for which the ordinance was enacted. Other Methods of Re ulation Zoning regulation: Many Colorado cities regulate the location and concentration of sexually oriented businesses. By way of example, some cities allow them only in industrial zones, and/or prohibit them within 1,500 feet of another sexually oriented business, church, school, daycare facility, boundary of a residential district, existing dwelling unit or public park adjacent to any residential district. Licensing regulation: Another way to regulate these types of businesses is through licensing. Special licensing requirements may be imposed on businesses identified as sexually oriented. The license requirements and procedure can be more administrative in nature and as simple as conforming to the proper zoning location, paying a fee and submitting the license application to a municipal clerk; or as complex as complying with requirements as detailed as a liquor license application and participation in a full-blown public hearing. Public hearings can be conducted either by a city council or a director of licensing. These public hearings are modeled after liquor license hearings where the applicant has the burden of demonstrating that they have fulfilled all of the licensing requirements. Some cities even go as far as defining neighborhood boundaries and requiring applicants to put forth evidence demonstrating that the needs and desires of the neighborhood support approval of the sexually oriented business license. The following are some examples of licensing requirements: • Criminal background checks on operators and managers • Age restrictions (e.g. must be 18 years or older to be upon the premises) • Diagram of premises must be provided • Stage requirement • Proof of applicant's ownership or right to possession of the premises • Prohibiting certain types of behavior such as: 1. Regulating conduct inside the business (e.g. employees who mingle with patrons cannot be nude), 2. Tipping (e.g. tips cannot be given directly to employee), and 3. Audience members prohibited from being within three feet of stage. Fees: The fees for licensing/regulating sexually oriented businesses vary by community, but the range is approximately $100 to $1,000. 7 License Revocation: Some cities define violations, other than just non-payment of fees that warrant license revocation. For example, a sexually oriented business license may be revoked if the licensee knowingly allows the possession, use or sale of controlled substances on the licensed premises; lrnowingly allows prostitution to occur on the premises; or knowingly allows sexual activity to occur on the premises. Finally, there is always the challenge of drafting an ordinance that does not contain definitions or restrictions that might be construed as too broad or vague. An ordinance can be struck down as invalid if it is interpreted by a court to be too broad or vague. Chanee to Business License Review Process The existing business licensing application form includes a field used by staff to indicate zoning review approval or denial. At the time Nitro Club submitted this form, the determination of whether or not the proposal was in compliance with the underlying zoning was made largely based upon the applicant's description of the proposed business. Tn this case, the description included references to the sale of beverages and food, in addition to a nightclub. Based upon the applicant's information provided at that time, staff determined that the use was consistent with the allowed uses within the zoning district. Because the existing form used for licensing purposes does not reference the same specific categories as those used within the land use code (business versus use categories for zoning purposes), there is no consistent application of terms such as restaurants or theaters. Furthermore, since the form does not reference the use-specific categories found in the land use regulations (Title 9, B.R.C. 1981), applicants may not be aware of the distinctions staff may draw between one use category and another. The licensing form is being revised in order to provide for a more consistent application of the land use regulations. The revised form will include a complete list of the zoning use categories to be used by both the applicant and staff. This approach is intended to encourage applicants to familiarize themselves with the specific use categories allowed within the applicable underlying zoning district, in order to facilitate a common understanding of terms (e.g., restaurant or theater) that more accurately reflect intended business uses. The revised form will be available for use by March 1. Calls for Service Status The Boulder Police Department (BPD) continues to monitor activities at the Nitro Club as well as other night time businesses as part of its routine downtown enforcement patrols. No disturbances have occurred at this business since Dec. 21, 2007. 8 Compliance with Building and Fire Code Requirements As of Jan. 31, all fire code issues were resolved. All building code issues were resolved except for minor electrical work that was completed on Wednesday, Feb. 6. One identified exit is being installed next week. In this existing building, the scope of construction work for the relatively minor tenant improvements did not trigger additional accessibility requirements, beyond that of the exit noted above. Full accessibility requirements would be required during a major building renovation unless "technically infeasible" as defined by the code. For example, an alteration that compromised structural conditions or a site with physical constraints may prevent full accessibility from being achieved in an existing structure. Code Enforcement Practice The city's investigation into code violations and a potential use review at this business are consistent with how staff responds to all complaints received. For example, during 2007, code compliance cases for commercial businesses included five building, 14 land use and 106 sign code violations for commercial properties. During 2007, the Fire Departrnent and P&DS also routinely conducted joint inspections (similar to the inspections at Nitro Club). Consistent with how the city has worked with other businesses, the Nitro Club was allowed to continue temporary operation while the business operator worked to come into compliance. NEXT STEPS: As noted, the applicant has been made aware of the use category determination and that their options include submitting an appeal of the determination to the Board of Zoning Adjustment by Feb. 20, or to directly apply for a use review by March 3. A policy discussion related to any potential regulation of sexually oriented businesses could be added to the agenda for the upcoming joint study session between the City Council and Planning Board. For additional information, please contact Ruth McHeyser, Acting Planning Director, (303) 441-3292 mcheyserr(a,bouldercolorado.gov or Maureen Rait, Director of Public Works for Development Support Services, (303) 441-3227, raitm@bouldercolorado.eov ATTACHMENTS: Attachment A - Dec. 21, 20071etter to Nitro Club business owner and property owner 9 CITY OF BOULDER a~/rt ~ Planning and Development Services 1739 Broadway, Third Floor • P.O. Box 791, Boulder, CO 80306-0791 Phone (303) 441-1880 December 21, 2007 Mike Cobb (tenant) and Justin Moore (owner) 1124 Pearl St. Boulder, CO.80302 (303}910-9657 Dear Mr. Cobb and Mr. Moore, This letter is a follow up to the inspection conducted on December 19, 2007 at 1124 Pearl Street. As was noted during the inspection, violations of city code were observed. A detailed list of all code violations is attached to this letter. Alt building and fire code violations must be remedied no later than Thursday, Jan. 31, 2008. The coning and historic pteservation issues must either be resolved by that date or appropriate applications submitted to request necessary city approvals. Failure on your part to resolve said violations may result in enforcement action including the issuance of a summons to the Municipal Court. Under section 5-2-4 of the Boulder Revised Code, 1981 (B.R.C., 1981), the maximum penalty for violations of these code provisions is a fine of $1,000.00 per violation, and incarceration for 90 days in jail. City inspectors must certify that you have remedied all violations put forth in this letter. Inspections maybe scheduled by contacting the Planning and Development Services Center at (303) 441-1880. Please call me at (303) 441-4189 or contact meat poulsenn c~bouldercolorado.s;ov if there are any questions about the information in this letter. Respectfully, Neil Poulsen, Chief Building Official cc: Ruth McHeyser, Acting Planning Director Maureen Rait, Director of Public Works for Development & Support Services Robert Ray, Land Use Manager Brian Holmes, Zoning Administrator Brett Weidemen, Code Enforcement Supervisor An inspection of the above-referenced property on Dec. 19, 2007 noted the following vio]ation(s) of Boulder Revised Code, 1981 (B.R.C., 1981): I. Fire Department Corrections: 1. Interior finishes -verify complying flame spread rating. a. International Fire Code 2003 Edition (IFC) - Section 805.1 -for decorations and trim {plastic bead curtains) b. IFC -Section 806.2.1 For ceiling finish -tested to NFPA 286 c. IFC - 806.2.2 for wall covering that is basically a sticker on the wall d. IFC -Section 806.2.3 for the carpet ar wall in VIP area e. IFC -Section 806.3 for the flame spread rating allowed in Group A Occupancy 2. Corrections to the fire sprinkler system -NFPA 13 a. Sprinkler needs to be added to the area in the VIP room b. Sprinkler needs to be raised in the VIP area and one added under the duct work based on obstructions. o. Sprinkler needs to be relocated in coat room for correct coverage, or the particle board blocking the electric heater can be cut to be at least 18" below the deflector of the existing sprinkler. 3. Install additional emergency lighting in northeast and southeast corner- of public areas. 4. 1FC 605.5 -Extension cords can not be used for permanent power source. 5. IFC 315.2 & 605.3 -Keep storage room in orderly fashion and provide 36" of clear space in front of electrical panel boards. 6. IFC 605.1 -Need blank plate in electrical panel board to avoid electtical shock. 2. Planning and Development Services -Inspections 1. International Building Code - 2003 Edition (IBC) -Section 105, 106 & 109 provide complete floor plans for review and obtain permits for work completed without permits or- inspections. a. Handrail extensions on south stairway -IBC 1009 b. Finger grips on south stairway handrails -IBC 1009 c. Handrails on south ramp coming out ofstairway -IBC 1010 d. Code review on space to detail requirements for ceiling fire protection - IBC Chapter 3 e. Obtain permits and request inspections for new electrical work (mark electrical disconnects on rear of building/rear door overhead light wire splicing and protection problems) -National Electrical Code 2002 Edition -Article 300 f. Obtain permits and request inspection for new plumbing work - International Plumbing Code -Chapter 4 g. Obtain permits for new signage - 9-9-21 B.R.C. 1981 3. Planning and Development Services -Zoning 1. Per section 9-15-I, B.R.C. 1981, "no person shall occupy, rose, or change the use of any structure or land except in conformity with all of the provisions o f this title and the conditions of any approval granted under this title." With respect to "use", section 9-6, "Use Standards," includes a schedule of uses that show the uses that are permitted, conditionally permitted, prohibited or which may be permitted through use review. A copy of Table 6-1 and the associated use definitions are included as an attachment for your review. At this point, based upon staff s understanding of the use characteristics for Nitro Club, it appears that the operation at 1124 Pearl Street (zoned DT-4) requires an approved Use Review. In order for a final determination to be made on this matter, it is necessary that you provide a detailed statement regarding the operational characteristics for Nitro Club. At a minimum, this statement should address the following: a. Is there a tnembership requirement?; b. Is food and/or alcohol currently available for payment? If not do you anticipate providing food or alcohol service in the foreseeable future?; c. What is the maximum amount of all proposed seating?; d. What is the size (in square feet) of all seating areas?; and e. Using the Table 6-1, please indicate which use category (per 9-6-1, with associated definitions found in 9-16-1 B.R.C. 1981) you believe best describes Nitro Club. 4. Planning and Development Services -Historic Preservation The property at 1124 Pearl St. is located in the Downtown historic district, which requires the owner to obtain a Landmark Alteration Certificate for all exterior alterations to the building pursuant to section 9-11-12, B.R.C., ]981. It appears that no landmark alteration certificate application was submitted for the signage and alterations to the door on the north (Pearl Street) side of the building, as well as the signage and alterations to the door on the south (alley) side of the building. Please submit a landmark alteration certificate application for all exterior alterations to the building (including signage, paint colors and alterations to the glass). All exterior alterations should be consistent with the Downtown Design Guidelines and Section 9-1 I- 18, B.R.C., 1981. A copy of the landmark alteration certificate application and Downtown Design Guidelines are available at the Planning & Development Services Department, 1739 Broadway, or on our Web site at www.boukierhistoricureservation.net. Landmark Alteration Certificates must be applied for and issued prior to submittal for any required building permits for such work. The above-noted violation(s) shall be stopped and/or con•ected within the time period specified: 1. Fire Department corrections done within 30 days 2. P&DS -Inspection corrections done within 30 days 3. P&DS -Zoning use information provided within 10 days. In any event the zoning issues must either be resolved by Jan. 31, 2008 or appropriate applications submitted to request necessary city approvals. 4. P& DS -Historic Preservation corrections done within 30 days S.The facility may be temporarily operated until Jan. 31, 2008 , , u.,a„,,,„o,,..N,,, rage i~ Zoning District Use Module Form Module Intensity Module (abbrevitaion) flowntown a (oz-a) ll] q 27 from 9-5-I B.R.C. 7981 ht[o://xnvw.cofocode.conr/boulder2/chantrr9-S.ium Use Definitions "Indoor amusement establishment" means a commercial operation open to the public without membership requirements, including, without limitation, bowling alleys, indoor arcades, theaters, pool halls, skating rinks, dance halls, and reception/banquet facilities. "Restaurant" means an establishment provided with a food preparation area, dining room equipment, and persons to prepare and serve, in consideration of payment, food or drinks [o guests. "Tavern" means an establishment serving matt, vinous, and spirituoas Siquors in which the principal business is the sale of such beverages a[ retail for consumption on the premises and where snacks are available Cor consumption on the premises. "Small theater nr rehearsal space" means an cswblishmen[ for live dramatiq operatic, or dance performances open to the public, without membership requirements, whose seating capacity does not exceed three hundred seats and seating area does not exceed tluee thousand square feet, or any area for the rehearsal of such live performances. 1%ran 9-I6-1 B.H.C. 7981 httP •//wwty enlocode cor dboulder2/ckapter9-IG htn: IL/G 1/GV V / ~ wcu r uumc/ / - rvw u vsuu auau u i sc/ u•N?" rayc c ! h 1 1 ? +Y \ j. \ h v t ~ h ~ \ ) 1, F 1 ti \ ~v v t r 4 C~ i ~ 5 ~ 1 \P i \i" [ 1 > ` 1 .I Y ~ ~ ~ 'yt° S }f 5 h y tax ->h1 ?a 5a ~ r~gai "w~ ~''fi'~xt r,J :f ~rsl ~ ti .I[~1~+. 5 5. h l~ d. ' \ v Y~t i 1 sft 3 ~ t '~4r 4r?~ t { i ~ 1~a is iii y Y rr ~ h i E ~ 5ks Y \Ni ti~ i t t ? t ' 1, i3~ ~ t 3 5 ? < ~ y' jr 1 j1G `C ) ,v' ,f > M l { Ky \ <ll ~ 1 t~ r, l j t R.~ f f r zt a ~ 7 ~ ) ~ \ y~~~w}jY~~sj ,,~[[ry-)r ; ~ ~i Tf~ y y .p, - l ,,,\sT 3k J~J q e S $ z7 ~t vi 'T i~t I ~s sz it 'Z +,yr ~\i°c Ix¢z ~c a ~ v ? ~is~ ~ r ~ - ~t I a': i ~ t4 rx f :~~~rYa~ i~y'~f~ *?~t r3 ? gyp e~`'~i ' ^~`3 i ~S t L~ 5t ~ x t a,':ti " ~ S i ! -zx§ "t~~ -MZ.~'s~ - ~ v sN'~e~ 3 ~ t.,: A~ f~F 3 ass )"'Z. ~~°`~~It~ ~ w._ iy a v t ~ v~. f e yryck[ r ~ x l / L T~ ~3 _ v ~~~r ~Y' ! ~~fdti A 5 ~ 3 Y 1 ,r { >x''~E;'~'4 [ s ~ \ t R t x Sl - jMS Yy, F:Y~'w 3",y~ t~ - 5 7 :y % 1 ~ ~ < pt^ 1~ ~ ~(Y'~ ~~.~1'A4 T!:. ~ t . .il.Y ~ Mr. • N<: ~n in, i- It Q i~ ii 9-6-i ~ u 9-6•i ~ ' ~ alas r 'RBm ' na aan assx ~ i = et I t FA" aaRE JOS U%1 WA NR% TBE ~ rSD RBL ~ .aaza ISe' KC' It1E _ C MkGkkdl`„ :tea- !AD Ma% 5's D ~ -H3E ~hm1X TUI afll% MUD BAIa ,2pC DatT CD): .CSC ABD R?JL RBl%. -aDJL ltD. IGD 7bK NS :r ? i C 'Us<modulo4 C J1 Rl'' R2 R3 3Cb M1~. t,)!t6 ~'.A7 b1H MI .lL~ 119 Bl~~~$2 B3 86 :'85 D3 D2~~. ~D3 II ""U 73 Ia' 'P ' A Use Stindard ~ p Reataunnu andm ems no +.t tF A i U A A A A w n C Na Na Na Na Na n/a 9-6~5(b) fl latgv then IS00 aquaro a ~w_N f _ i feet in ftagr area wtuch Js ` .a as } w ~ I 1 may have mml xr tt on t q 3 t ~ an outride patio oar mole - rhan 41 the floor am and t - whkh close no lamr Nan <7'.; -1 ~ ~ 11:00 p.m. ' b i C Restiuranu and to ems ~ U ~ U A U ~ Ne Na + Na Na rah Na Na Na Na Na Ne Na Na Na ove[ h000 aquam fttt m 5aor rose, W wh ch clou _ ' i after 11:00 pm. or with an outdoor xating ama of 300 _t}~ squam feet or nwrc i Restaurants and taverns 1 ~ Na Na Na Na Na Na U U A A A A A U Na Na Na Na Na Na Wat az: over 1,50:! squarc feet in Hoot atta antslde of the Univeniy Hiil gen. eral improvement distort; ~ ovu o,000 square fttt ~ 1 within the Univetsny H+U ~ pene[al improverunt dw i I i tract; or wkcn dox attcr - i 11.00 P.m. " i' i A elliowad use. C: Conditional use See seeGan 9-2-2 for edmivistratlve rndew procedures. Use prohibited. U: Use review. S¢e section 9215 for use review procedures. C: Allowed use provided W at it u located above ar below the ground floor. M: Allowed use orovided at ]east 50% of the floor azea is for rosidenaal use and the nonresidential use is , less Wan 7,000 square feat per building, otherwise use review. N: Allowed use provided at least 50% of floor area is for nonresidential use, oWerwsc by use review. r?a: Vol appligaDle; more spetific use applications apply. Apri1200'! land G'se Cad¢ / Ci(y o)floulder ~ ay I 10 .d ~C I i, r i~ is jt s-s-> s-sa - ' I Nom.. I aaix aA ~ Man 2 L ER MRC MBa il%A KCR 1111( 'fa4 COD :~n& ~ RexE ISG IGE aME ( <I lcC it wl ~ ~ ~tR. LRO NWf P. D N!E i(0.1X NI[1'Md%!ALD 0.15 '!nD' nN$ CBB CSE:'aBD RDIE 0.4IX aa16 ISp "(Gp~ la0 IMS P h i; . i t SPetific f Us¢madbin~~ `R] R2 R7 Rd R5 A6~': R7 MH Y11 K2 M3 B]' '82 H3' H6 BS I;1 1)2., ,D3-' II ~i2 I3s id' p A qie $taadacd ~ I I[ Reslaucann amt lavems in Na Na Na Na Nx Na Na Na Na Na Na Na C Na Na Na Na Na Na Na Na Na Na Na Na 9.6.5(6) ~ $ IhG University Hill gen<td I improvement diadu that I - are greakr dssn I,SdJ square [ut erne do nc[ exceed 4,000 square feet in i Boar uen, an6 wNeh clasc I f na Ivcr Nan i 1:00 p.m. i I Ratawams avd lavrms n/a Na Na v/a Na Na Na n'a Na Na Na V U U U U U U Na o,'a Na Na Na Na with an oumoor uatlnq J azea of 300 square feet or ~ mope within 500 fen of a -•;densial Zooin6 district 1 Small thcawr or rehearsal a' V ti L A C' V U A A U' A i sparo ~ Temporary ousdoor evtc- C C C C C C C C C C C C C~ 9-6.5(<) I tafnment ~ a: v. ~ .a Lodging uses: I Hosmis ~ U U- G A U U G A A G O L' U V BrA and breakhsts f V A V A A s 9-6.5(s) Motels Jnd herds L' A A v A A A U? i A Allowed use. C: Conditional user. See xenon 8-22 Eor admi¢istrativ¢ review procedures. Use prohibited. L": Use review. Sea erection 9.2-15 for uae review yroeeduros. G: Allowed tree provided that it is located above or below Cher ground floor. M: eUlowed use proridnd at teest S04 of the Boor area is .eor reaideatlal uaa and Lhe nonrasidcadal use is less than 7,000 squacc f¢et per building, otherwise use revimv. N: A1lmved use provided at least 50% of floor area is 2r nonruidentiel ux, otherwise Ay use review, aUa: Not applienble; more apeeiBC use appBoations apply, April 2007 Land Use Code / City o(Bovider ~I i0 L CITY OF BOULDER Planning and Development Services n~ I 1739 Broadway, Third Floor P.O. Box 791, Boulder, Colorado 80306-0791 U phone 303-441-1880 fax 303-441-3241 email plandevelopC~Jci.boulder.co.us 'jy www.ci.boulder.co.us/pwplan/ MEMORANDUM February 19, 2008 TO: Michael Gross and Michael Cobb sent via email FROM: Brian Holmes, Zoning Administrator SUBJECT: Nitro Club, 1124 Pearl Street. The purpose of this memo is to reiterate the use determination made by city staff regarding the Nitro Club that was originally communicated to Michael Gross via phone on January 31, 2008, and also referenced in subsequent phone conversations related to this topic. Based upon staff's observations during a site inspection on December 19, 2007, and the information provided on behalf of Nitro Club on January 16'h (in response to the December 21, 2007 letter from Neil Poulsen, Chief Building Official) staff concluded that there is no use category within the land use code into which the Nitro Club can be clearly assigned. The city has determined that the characteristics of the Nitro Club (i.e., its principal use) are most like that of a "theater", which is included within the definition of "Indoor amusement establishment", as defined within section 9-16 of the land use code. Further, the service of food and drink results in its having "restaurant" as an accessory use. As a "theater" the Nitro Club cannot be considered a "by-right" use in the DT-4 zone district, and requires a Use Review approval; restaurants can be operated "by-right" within the DT-4 zone district, and that use would thus not require discretionary review. Also as a part of the discussion with Michael Gross on January 31, 2008, staff outlined a revised compliance schedule that requires the applicant to submit either an application for Use Review no later than March 3, 2008, or file an appeal of the staff decision regarding its interpretation of the use as a "theater" to the Board of Zoning Adjustment (BOZA) no later than February 20, 2008, in order for the appeal to be heard by BOZA at its March 13, 2008 meeting. Relevant land use definitions from the Boulder Revised Code are included below. "Indoor amusement establishment" means a commercial operation open to the public without membership requirements, including, without limitation, bowling alleys, indoor arcades, theaters, pool halls, skating rinks, dance halls and reception/banquet facilities. "Accessory use" means a use located on the same lot as the principal building, structure, or use to which it is related and that: (1) Is subordinate to and customarily found with the principal use of the land; (2) Is operated and maintained for the benefit or convenience of the occupants, employees, and customers of or visitors to the premises with the principal use. I~ROM f CW ED).iAN l8 208 t2'13/ST. 12:12/t)1o. 88539~TA16 P 2 I SCHWARTZ (Sr GOLDBERG, P.C. ATTORNEYS AT LAW THE TABOR CENTER SUITE 2190 _ 1200 SEVENTEENTH STREET DENVER, COLORADO 80202 LEPHONE (303) 3-2500 AOSIMILE (303} 3-3349 January I6, 2008 ~ I MICHAEL W. GROSS mk:ross~isl:attorne~s.com 1 Brian Holmes ! Zoning Administrator 1739 Broadway, Third Floor P.O. Box 791 Boulder, CO 80306-0791 Phone: 303 441-3212 Fax: 303 441-3241 Re: Nitro Club, 1124 Peazl Street Dear Mr. Holmes: This office represents Mike Cobb and the Nitro Club with regard to the business at 1124 Pearl Street. Pursuant to our previous communications, Iwill try to address the questions you have raised with regazd to the business. This property has historically been operated as a tavern use with a liquor license. The current operation of the Nitro Club is essentially the same use with the exception that there is no liquor license but patrons aze allowed to bring their own alcoholic beverages pursuant to a determination by the Department of Revenue. There is a membership requirement to the VIP portion of the business which the area where persons may mix their own drinks. There is no membership requirement to enter the Nitor Club itself. The business is licensed to serve food based upon the sales tax license from the departrnent of finance. See attached tax license. The Boulder County Department of Health required installation of a prep sink and hand wash sink to comply with code requirements because the service of fruit and ice is considered to be food service. The business provides food service based upon this determination of the Health Department, as well as the sales tax licen e. As such, it is our position based upon the historic use of the property as well as e determinations of the Departrnents of Health and Finance, the Nitro Club fits into the category f "Restaurants and taverns that are: over 4000 square feet in floor area, outside of the Univers Hill genera] improvement district, over 4000 feet within the University Hill general improvem nt i FROM (WED)JnN'16 2008 12:14/ST. 12: 12/No. 6813977416 P ' 1 ' district; or which close after 11:00 P.M: ' on Table 6-1 o e zoning code. The business . p1-aE~'"~ fe~tn <tlienear~ future{ toinclude microwavable snacks and small meals. i The business appazently has an occupancy load of 230 according to existing signs on the premises. Based upon rough measurements, subject to a more accurate measurement, it is my understanding the seating azea is approximately 1800 square feet. ~ On a related matter, Mr. Cobb has made inquiries with regard to the signage and historic preservation issues and has been told the glass film on the mall side do not require any permits. ' We are following up on the landmazk alteration issues with regard to the color change and modification of the back door. There is no longer a sign on the alley side door. ~ i ~ E I would further note that yesterday Mr. Cobb met with Neil Poulsen, Chief Building Official, with regazd to the code issues. I hope this provides a substantive response to the questions previously raised. Mr. Cobb is committed to taking steps to comply with Boulder ordinances and is happy to meet with you in order to address any concerns. Please do not hesitate to contact me if you wish to discuss this further. Very Truly Yours, Michael W. Gross enclosures )R to tostmp STATE OF COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIR M LIC MSE TO OPERATE A RETAIL FOOD E T BLISHMENT USE ACCWN7 NUMBER LIABIL77YINFORMATI N ISSUE DATE iL1CENSE VALID TO for all references n u,r. ~a a•r pECEMBEA 31 F_ 00)373 OIQ2 1>4.00 ~-5; 7 ~ 1I LICENSE US~'BE POSTED AT HE FOLLOWING LOCATION: This certif ies that licensee shownhereon is authorized and licensed to engage in business in accordance with the provisions of the law and regulations of the Colorado Department of Public Health I I t and Environment. ! Any alterations made on th~s 3icanse wilt ' NCLLC ~ automatically make iinuUandvoid. 1LL11TR0 CL M ~ IpZRPE ST ULDER CO 80302- I POST IN A CONSPICUOUS LICENSE ISSUCD B}` 730 ],D COUNTY PUt3LiC t1F TA P}_AGE D~ACH HEFiF NEW AUTOMATED SERVICES FOR AND ABOUT BUSWESSES The Coorado Department of Revenue Sales Tax Infrmation System provides the following automated services: ~r Colorado Sales Tax Rates -find specific city, c my and special district rates. ~ Vert f ication o t Sales Tax license Exemption Nupnbers -determine whether a Colorado sales tax license or exemption certi f icate is vat id. s Tax Rates by Account Number -find sales tax ra~'es and locati ens for specific sales tax accounts. These services make it possible for taxpayers fo help themselves io information 24 hours a day -without requiring the assistance of a customer service representative. In this way, more complicated or confidential tax information inquiries can be reserved for speaking to a live agent. Listen and look for these services on the deparlmen Ps business taz information phone line at 303-238-FAST (32781 for speca is account mfermation Cali 303-Z38-SERV (7378) for general information OR visi[the DOR Web site at vvvvw_taxcolorado.ctxn ~lVeb users can try the system online at vvww.[axviewstate.co~us We ors interested in your comments about the system You can send us an e-mail with your comments through our pepartment of Revenue Web site. TltT;fO CLUB 1124 PE.~RL S7 BOULDL•R CO 8030^_- , a Tess to9roa7 OLDRA00 CEPARTMENT OF REVENUE Computation Worksheet for Sates Tax Deduction for Gas ENVER co soasrooi a and/or Electricity Use in Food Service Establishments Either m©thod 1 or 2 may lie used it sales of processed food exceed 25%of youc totalbusinessseles. Sales Tax Account NO- ~nethod 2 must be used iE sales of processed food does net exceed 25%04 your total business sales. Year 'JIETHOD 1 METHOD 2 1. Monthly cost of eas and electricity used for restaurant operation 3.Total sales for year (do not include room sales for einus sales tax: i hotels, motels, etcj 2. Processed Food sales for immediate consumption January May September made during the calendar year minus liquor sales: =ebruary June October _ 3. Amount on line 2 x.005 = Jlarch July -November Deductionfrom taxable sales to be entered on reverse side of Sales Tax Aeturn tDR 01 DDI, line 7. lpril Avgust_ December . Total cost of gas 8, electricity usedior year: TYPE Of RETUAN DUE ATTACH TNIS Amount on tins 2 x.55 = Monthly February COPY TO Quarterly April SALES TqX )eduction from taxable sales to be entered on tine 7 under "Other RETURN )eductions" of Sales Tax Return (DR D 7 00). ~ Seasonal Submit with season s last return (DA 0100) V trrcv/~aiv 1ti 2008 12:15/ST. 12:12/NO. 6813977416 P 4 Jan 09 08 06:40p M. Cobb 303-659-9361 p.2 ~ C 1 'r ~ F o t; It ~ R No. 6089 i ~+g? ~g Dcp:u-tmcnt of t~inanee Whereon is ~ ?il x.~ I1 Tltis ceRi 6cs that d1e licensee shorn ~~f o lssr~c D.,m' nub ss i L'<oDT authoriztd to colltc! the taxrs beiaw for the Cily of \ ck- 9~ Boulder, Colorado, at the address shown hereon, in Namre of 3usirxss: NIGNTCLUO aacordan:.e with [he provisions of ordinance 2fi03. Owrer Name: NC ~.LC j Tax T~nae(s} Re~orlin Puio Cuing Rusincv n>: 1720 CLUa IlzglI FVtILLS'I' Admissions MONTHLY oet9LO>=x. co s~~aoz Food Service i Retail Sale Tax j ! 1!J_ I Consumer se Tax Mail , NITRO LUB To: 1124 FIEARL ST E I BOUT, L-R, CO 80301 Not transferable. Valid until revolted or cancelled. This license must be posted in a conspicuous place. tiales I'ev shoulJ be chmgtd on ell mail sales of tangible personal pmpeny, including day-(o-day equipment rentals and leases. Some services, such ns cable [dcvision, mlcphore ,gas, and elcetric arc also :azabbs. L'se fax is lbe reciprocal of salts tax. Csc lax app{irs to all m¢nerials and equipment purchazed for use in your business. This equipment anJ mmcli als me not for Iesde and n',usl not have had any other city's :az applied al [he ume of pu¢hase. 1'erify the tax you pay to any vendor when pnrchas isng mmeri als and equipment to assure you ore no v:cr paying your l':xts. -\dmiysi mis qrx rs usually charged lor:he admission into an even!, suds as a nightduh ur thtater. \ccomnmdmious tas is d;arge;l tar the use o(a ho!eVmolel nloro for thirty (3U) days or less. Tas rcni nls arccue on the 207§ of each month fallowing your report period. IF[he 20dt falls on a~city holiday or en a rvcckend, Iht (o llewing business dam is the due dote / Inx relutT must be fled, even if taxes ne no[ due. Tai roles cur rently in effect in the Ciq~ of 13nuldet: Accommodalicns 5. Sri - Ad'.n'ssions o,pp Conanm[ion Csc Taz 3-56 0011511111 ]r lsC Tax ~.5h ' Pnod Strvicc I j Motor Vch: alt Lase Tux SS/i 0.ctaii Sales Tax 3S5 Trash ~ u FTD/CD/SD 1.2D =ccnty lax .65 S.ace Sales/Use Tex 2.90 'Ur quesGOnS aDOn( city faX°S antl llcenstng, please tau t712 U[y of LSOUInef Sales 1 aX U1v1510? at (OVJ)9q 1-DUJ V. l.O1TC5pontlenCC snoutR nailed to Cary of Boulder Sales Tax llrvision; P.O. IIox 791, Boulder, CO 80306-0791. A SCi1YYARTZ & GOLDBERG, P.C. ATTORNEYS AT LAW THE TABOR CENTER SUITE 2190 1200 SEVENTEENTH STREET DENVER, COl-O RADO 60202 TELEPHONE (303) 893-2500 FACSIMILE (303) 693-3349 February 20, 2008 MICHAEL W-GROSS 1TiflrOSS(CL%SflaT[OC11eyS.COnI Boazd of Zoning Adjustment City of Boulder Planning and Development services 1739 Broadway, Third Floor P.O. Box 791 Boulder, CO 80306-0791 Re: Nitro Club, 1124 Pearl Street Deaz Boazd of Zoning Adjustment: This office represents Michael Cobb and the Nitro Club with regazd to the business at 1124 Peazl Street. I am writing on the behalf of Michael Cobb and the Nitro Club to appeal to the Board of Zoning Adjustment the decision of staff of the Boulder Planning and development services that the use of the Nitro Club constituted a "theater", which is included within the definition of "indoor amusement establishment" as defined within section 9-16 of the land use code. Staff fm•ther determined that the service of food and drink at the establishment only makes the use a "restaurant" as an accessory use. The significance of this determination is that the Nitro Club is not a use by right as a theater in the DT-4 (D1 module) district and would require discretionary Use Review approval. If the use is classified as a "restaurant" it may operate as a use by right within the DT-4 zone district and would not require discretionary approval- It should be noted that "indoor amusement establishment " is a use by right only in a BS module. This property has historically been operated as a tavern use with a liquor license. The current operation of the Nitro Club is essentially the same use with the exception that there is no liquor license but patrons aze allowed to bring their own alcoholic beverages pursuant to a determination by the Department of Revenue. Mr. Cobb is currently considering applying for a liquor license at this location that previously held a liquor license. The current use of the property is consistent with previous uses of the property and is compatible with other tavern and entertainment venues on Pearl Street- Indeed, the only difference between the Nitro Club and other entertainment venues on Pearl Street is that it does not currently hold a liquor license. a There is a membership requirement to the VII' portion of the business which the area where persons may mix their own drinks. The City of Boulder and the Department of Revenue recognize this as lawfiil. This azea is approximately one third of the business area. There is currently no membership requirement to enter the Nitro Club itself, but Mr. Cobb is considering converting to the entire establishment to a members only establishment. The business is licensed to serve food based upon the sales tax license from the department of finance. See attached tax license. The Boulder County Depaztment of Health required installation of a prep sink and hand wash sink to comply with code requirements because the service of fruit and ice is considered to be food service. The defimition of "restaurant" in the Code includes the service of "food or drinks to guests" for consideration. The business provides food service based upon this determination of the Health Department, as well as the sales tax license. The business will commence additional food service during the next week of February. There is no definition of "theater" in the code and the defimition of "indoor amusement establishment" contemplates uses where special events occur or minors aze attracted to an arcade or skating rink. The operation of the Nitro Club does not fall into this classification. Indeed, the Nitro Club limits admission to adults for limited evening hours and entertainment is provided that involves expressive dancing with a component of nudity. As such, it is our position based upon the historic use of the property as well as the determinations of the Departments of Health and Finance, the Nitro Club fits into the category of "Restaurants and taverns that aze: over 4000 squaze feet in floor azea, outside of the University Hill general improvement district, over 4000 feet within the University Hill general improvement district; or which close after 11:00 P.M." on Table 6-1 of the zoning code. Pursuant to previous conversations with Brian Hohnes, Zoning Administrator, the Nitro Club reserves the right to supplement the record and in order to facilitate review by staff will attempt to file these additional materials on or before Mazch 4, 2008 Please do not hesitate to contact me if you wish to discuss this further. V Truly You s, ~..1 ` ~1~-~ Michael .Gross`' enclosures pR 00i0 109107) STATE OF COLORADO ' DEPARTMENT OF PUBLtC HEALTH ANO ENVIRONMENT LICENSE TO OPERATE A RETAIL FOOD ESTABLISHMENT USE ACCOUNT NUMBER LIABILITY INFORMATION ISSUE DATE 1LICENSEVALIDTC far all references m,,,,, „d„ d. DECFJN8ER31 FA00013T 0102 154.OU _42-532335140 OZ_ 5~2;~n07 -u%~nnnm ~nrn THIS LICENSE MUST 8E POSTED AT THEFOLLOWING LOCATION: This eertifles that licensee shown hereof is authorized and licensed to engage ii business in accordance with th, provisions of the law and regulations o the Colorado Department of Public Healtl and Environment. N C LLC Any alterations made on this 3icense wit automatically make it null and void. N1TR0 CLUB 1 i 24 PEARL ST BOULDER CO 80302- POST IN A CONSPICUOUS L3CENSE ISSUEll )1]` ItOU1,DER COUNT]' PUELIC tiT? :t TH PLACE DETACH {iEF2E NEW AUTOMATED SERVICES FOR AND ABOUT BUSWESSES The Colorado Department of Revenue Sales Tax Information System provides the following automated services: + Colorado Safes Tax Rates -find specific city, county and special district rates x Verification of Sales Tax License Exemption Numbers - determinevvhether a Colorado saves Yax license or exemption certificate is valid. ~ Tax Rates by Account Number -find sales tax rates and locations for specific sales tax accoums. These services make it poss ible f or taxpayers to help themselves to information 24 hours a day -without requiting the assistance of a customer service representative. In fhisway, more complicated or confidential tax information inquiries can be reserved for speaking to a live agent. Listen and look f or these services on the departments business tax information plrone fine at 303 -238-FAST (32781 f or speca is account information. CaII 303-238-BERN {73781 for general information OR visi[the DOR Web site at vvww.taxcoloradocom Weh users can try the system online at www.taxview.s-tate.caus We are interested in your comments about the system You can send us an e-mail with your comments through our Department of Revenue Web site. N1TA0 CLUD t 124 PEARL ST BOULDER. CO 80302- DR 116 5 10 910 9) COLORA00 OEPA RTMENT OF REVENUE Computation Worksheet for Sates Tax Deduction for Gas DENVER CO BDx81-0013 and/or Electricity Ilse in Food Service Establislvnerits Either method 1 or 2 may be used if sales of processed food exceed 25%of your total business sales. Sales Tax Account No. Method 2 must be used if sales of processed food does not exceed 25Yo of your total business sales. Year METHOD 1 METHOD 2 7. Monthly cost of gas and electricity used for restaurantoperation 3.Total sales for year (do not include room sales for minus sales tax: hotels. motels, etc.) 2. Processed food sales for immediate consumption January May September made during the calendar year minus liquor sales: February June October 3.Amountonline2 x.005= March July November Deduction from taxable sales lobe entered onreversa side of Saes Tax Return (DR O 1 DDI, line 7. April August December 2. Totalcost of gas&elec Vicity usedf or year: TYPE OF RETURN DUE ATTACH THIS 3. Amount online 2 x.55 = Monthly Februxy COPY TO Quarterly April SALES TAX Deduction from taxable sales to be entered online 7 under"Other RETURN Deductions" of Sales Tax Return iDR 0 100). Seasonal Submit with season s last return (pR 6100) Cl~rr of [3o l:L,DGR No.6O$94 Ii y' Dcp:u•tmcnt of 1~innncc rl../+~w~./- II This certifies that the licensee shown hereon is ~3- ys ~r Issucc D, te: Auyvet i t. zan authorized to collect the texts below for the City of of- aov~- Boulder, Colorado, a1 [he address shown paean- in Nature of 6usixss: N]GFE[CLAa accordan:.e with the pmvtsions of ordinance 2803. Owner N:nne: NC LLC Dourp ausincss As: NITRO CLUn Taz Tvue(s) Renortine Period Ilza PFnItLST Admissions MONTHLY oeuLOaR.co so3oz Food Service Retail Sales Tax Consumer Use Tax Mail N[TRO CLUB To: 1124 PEARL ST BOULDL-R, CO 80302 Not transferable. Valid until revolted ar cancelled. This license must be posted in conspicuous place. Sales Crx should be chmgnd on :41 remit sates of tangible personal prepeny, including day-to-day equipment rentals and lease. Soma serviecs, such ns cable television, telephone ,gas, and elocriie arc also :axablc. L'se Iaz is the reciprocal of soles tax. lase tax apptics to sll mateials and equipment purchased for use in your business. This equipment and materials etc not For resale and n;ust not Iruve had any othtt city's ax applied at the time of purchase Verify the tax you pay [o any vendor when purchasisng materials and equipment to assure you are re nvcx paying your texts. Admissions tas is nsuully charged for the admission into an event, such as a nightclub or theater, Accommodations tax is charged tut the use of a hote]/molel room for thirty (30) days or less. Tax rchmas arc due on the 2UIS of each month Collowing your report period. If [he 20dt tally on a city holiday er en a weekend, the following business day is the due dine. r l;u return must Se filed, even if luxt5 arc not du.. Tax rates curreu[ty in effect in the City of 6aulder: Accumnwdaliuns 5.50 Adarssions S.OU Construction Cs=Tax 3.56 Consumer Csc Tax i.SS Food Scrvicc , I ~ Motor Vchiclc Ose Tax 155 Retail Salts Tax 155 Trtsh Tax ATD/CD/SD 1.20 Ce~ntp Tax .65 5=a~e Sales/Use Tzx. 2.90 rot quesnons anou[ ctry tars auo ncensmg, ptease eau ttte c..[ry of noutaer ~a1es f ax urvtston at (~u~]ggt-~u~o. ~orresponaence snouts mailed W Ciry of Boulder Sales Tax Division, P.O. Box 791, Boulder, CO 80306-0791. r,..., ..,oN...... ~h.,~.r or~ro r~.o~ ..lo~~~ ..alt bum ..F!'..1....,.r.. 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