Benetatos v. City Of Los Angeles

Facts

Jack Benetatos and his son Nick Benetatos (Ps) own and operate Tam's Burgers No. 6 (Tam's), a fast-food restaurant in Los Angeles. The site has a 12-space surface parking lot and is adjacent to residential homes. The restaurant has drive-through and walkup windows. The Los Angeles Police Department (LAPD) informed P that due to recent complaints about Tam's, it had initiated a preliminary nuisance investigation. The issues 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.” The Los Angeles Department of City Planning (Planning Department) received a letter from LAPD Officer Dickes concerning the abatement of a nuisance at Tam's. The officer cited 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; loitering including transients, gang, prostitution, and narcotics offenders; and the building is dilapidated and the lot is full of trash, debris and graffiti. The Officer stated that Ps were advised of the nuisance associated with the property and provided with voluntary conditions none of which have been complied with. The Officer stated that Ps have been uncooperative and will not meet physically with officers. The Officer also provided several citizen declarations from people living in the area directly affected by the nuisance activity at the location. The location was currently being monitored by a 24-hour pole camera operated by the police department depicting the nuisance activity. 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. The Planning Department's zoning administrator held a hearing to determine whether Tam's, as operated, constituted a public nuisance and whether to impose conditions on its operation. Ps testified and said they could not control the nuisance activities outside the property; that 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. Ps agreed to comply with several operating conditions but Ps 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 hotline 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 Ps had not cooperated. Ps 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 Ps could not afford. The zoning administrator issued a determination that Tam's was a public nuisance. He stated that it was 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, assaults, batteries, loitering, and police detentions and arrests; and violated provisions of the Los Angeles Municipal Code, and other city, state, or federal regulations, ordinances, or statutes. Twenty-two operating conditions were imposed that included keeping the property free from trash and debris; requiring graffiti eradication; limiting hours of operation; hiring a security guard to be present from dusk to the close of business; installing a camera surveillance system that covered all common and high risk areas of the property; barring access to the property to prostitutes, pimps, prostitution customers, parolees with prior narcotics or prostitution offenses, narcotics users, narcotics possessors, narcotics sellers, and manufacturers of illegal controlled substances; establishing a 24-hour inquiry and complaint hotline; and installing a six-foot wrought iron fence. Ps appealed to the Los Angeles City Council. Zoning administrator Susan Chang testified that Ps had not maintained Tam's. She cited a rehash of the present evidence and stated that another Tam's just 15 blocks away in a similar crime district was “sparkling clean” and its operation did not create any “problems.” Its dining hours ended at 10:00 p.m., but its drive-through window remained open until 11:00 p.m. LAPD Detective Eric Moore testified that he oversaw all nuisance abatements in the City and that Tam's was a top priority because of the crime associated with the location and the community “outcry.” Detective Moore stated that he believed the evidence would show “a clear nexus with Tam's location as being an anchor … and center of some of the criminal activity … .” He further testified that there were a number of restaurants “up and down the Figueroa corridor” that were not the subject of nuisance investigations. He stated that P was uncooperative. Detective Moore read excerpts from a citizen's declaration concerning criminal activity the citizen had seen at Tam's. Ps' attorney stated that the City had not done what it could do to alleviate the problems. He disputed that the crime statistics were the same for the areas around the Manchester and Figueroa Tam's and Ps' Tam's and stated that there was a hotel across the street from Ps' Tam's that attracted prostitution activity. Ps' objected only to three operating conditions: the reduction in hours of operation, the requirement that they hire a security guard, and the requirement that they install a new video surveillance system. P testified that the community loved Tam's-it had never been robbed and was the only business in the area that survived the “riots.” Tam's did not sell drugs, paraphernalia, cigarettes, condoms, alcohol, or anything else that would attract criminal behavior. At the LAPD's request, he removed a pay telephone from which he had received $2,400 a year. The pay telephone's removal did not reduce loitering. He also removed tables at the LAPD's request, and his business dropped by 15 percent. P said that the Tam's at Manchester and Figueroa was a newer building. He also said he could not spend money on Ps' Tam's because it had been in several foreclosures during the prior six years during which time he was constantly told that “this is your last week.” The Los Angeles City Council denied Ps' appeal and adopted the zoning administrator's findings as amended. Ps filed a writ of mandate to command the City to set aside its nuisance determination concerning the operation of Tam's and the operating conditions based on that determination. Ps alleged in part that they were being blamed for criminal activities in the area that were not in any way related to the purchase or consumption of food. Ps argued that “a public nuisance cannot exist where there is no causal nexus or connection between an individual or entity's actions or inaction and an alleged nuisance. Ps contended that they could not properly be held responsible for the criminal activity of third parties. Ps contended that the operating conditions imposed were so onerous and expensive, that they would force Ps out of business. The trial court denied the writ. The court held there was substantial evidence from which one may reasonably infer that Detective Moore's characterization of the Ps' business operations as an ‘anchor’ for criminal activity is accurate-in other words, that the poorly- and neglectfully-maintained restaurant premises cause the disproportionate level of criminal activity and disturbances, supporting the D's determination that the operation of the business constitutes a public nuisance which is appropriately mitigated by mandatory conditions.” The court entered judgment for D and Ps appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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