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APB 1 1 2083 Dear City of Malibu, PANNING Dept

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APB 1 1 2083 Dear City of Malibu, PANNING Dept Joseph Smith From: Preserve Malibu <[email protected]> Sent: ~ Thursday, April 11, 2013 1:40 PM To: Joseph Smith; Joyce Parker-Bozylinski Cc: Jim Thorsen; Lisa Pope; Laura Rosenthal; John Sibert; Skylar Peak; Joan House; Lou LaMonte Subject: Preserve Malibu Draft Ordinance Response RECEIVED Attachments: DRAFT ORDINANCE LETTER.pdf APB 1 1 2083 Dear City of Malibu, PANNING DEpT Attached is Preserve Malibu's letter regarding: Malibu's Draft (version) Formula Business Ordinance. Thank you. Joseph Smith Aprit 11, -2013 Senior Planner, City Of Malibu DearJoseph, After six years, thousands of Malibu resident signatures, overflow crowds. at city meetings, and community hard work, residents are gratified that finally Malibu's Formula Business Ordinance is moving forward. The following listed items are critical oversights in Malibu's Draft Formula Ordinance that must be, and can be easily amended. Properly written, California Formula Business Ordinances (case point Coronado) have been proven fully legal in a Court of Law, are successfully improving, and lawfully enacted in cities across this Nation. Summary of Items: Item 1: STANDARD/ZED MERCHANDISE AND MENU The definition wording: Standardized array of merchandise, or a standardize menu, is the very essence of the definition of a Formula business. Malibu Draft's Ordinance excludes the most primary qualifier as defined by every Formula Ordinance enacted into law across the nation. Without this crucial definition, many Formula Retail giants (such as: The Gap) would not qualify as a Formula business solely in the city of Malibu. This is a fatal flaw and needs immediate correction. Item2: DEFINITION FORMULA BUSINESS: Location parameter This Draft proposes an unprecedented clause that limits the number of businesses that qualify as Formula by specifying that 6 locations must be located in So. CA. This definition creates a flagrant loophole that is not present in any city ordinance in this country. This weakens Malibu's Ordinance and puts our city on precarious legal footing by discriminating against businesses based solely on location. Second fact, Malibu is marketed as a global destination not only by Malibu's retail developers, but by the City of Malibu's own marketing plan. Malibu's Formula Ordinance must reflect this inarguable fact. Item 3: DEFINING RETAIL: Eliminate affrce use This is a serious oversight; this Draft definition of "Retail Establishment" creates a severe loophole that renders Malibu's Draft Ordinance 100% ineffective at protecting Malibu's future. Commercial establishments such as private offices do not meet the criteria of "retail", fail to provide walk-in sale of goods or services to the general public and must be excluded from both: the definition of "Retail Establishment" and the formula percentage that regulates each center. In this present draft form, centers could lease their retail sections to 100% Formula chain corporations. A correction here is mandatory. Item 4: 50% PERCENTAGE FORMULA CAP PER CENTER City Council directed staff to use a 40% percentage as the maximum number Formula cap per center. This is still extremely lenient. The City town-hall polling meeting also confirmed the cap criteria at a lower percentage. The calculation percentage must be adjusted downward to reflect both the decision of Council and residents. Malibu residents will not accept half of their Civic Center given away to Formula businesses. BREAK DOWN ITEM 1: DEFIN/NG FORMULA AS STANDARDIZED MERCHAND/SE/MENU From Malibu's Draft Ordinance: "Formula retail" means any type of retail sales activity and/or retail service activity conducted within a retail establishment which, along with 6 or more other existing, operational retail establishments located within Southern California (as defined by the counties of San Luis Obispo, Kern, San Bernardino, Santa Barbara, Ventura, Los Angeles, Orange, Riverside, San Diego, and Imperial), is required to maintain two or more of the following features: 1)standardized color scheme; 2) standardized decor; 3)standardized facade; 4)standardized layout; 5)standardized signage, a service mark, or a trademark; and 6) uniform apparel." The City has removed the NUMBER ONE most critical and standard definition of what constitutes a Formula Business: features a standardized array of merchandise, or a standardize menu For this Ordinance to be credible, this essential description must be the core definition of "Formula". Without that primary definition, an absurd loophole exists where corporate giants such as THE GAP would be arbitrarily, and exclusively to the city of Malibu, not be defined as a chain store/formula retail. The Gap has no standardized uniform. Decor, color scheme, layout, etc., can vary from store to store and -can be easily altered to fit into this significant and unwarranted Malibu loophole. The core "formula" of their business model is based on their standardized merchandise and image ads. Merchandise that is sold at The Gap in Seattle, is sold at The Gap in Costa Mesa, is sold at the Gap in NY =the definition of standardized. Not basing Malibu's Formula definition directly on: standardized array of merchandise, or a standardize menu, renders this Ordinance essentially worthless. As stated in the last edition of the Los Angeles Business Journal, a legal expert states regarding Malibu's Draft Ordinance: ", . ,it's definition of a Formula Business (is) potentially too vague and arbitrary ro survive legal challenges': The demand for this critical correction is indisputable. Every Formula Ordinance uses this "standardized" definition, a few examples: O,JAI Definitions. "Formula Business" means a type of commercial business establishment, retail sales or rental activity and retail sales or rental establishment, including restaurants, hotels and motels,-which, along with ten (10) or more other establishments, maintains two (2) or more of the following features: (i) standardized array of merchandise or standardized menu; (ii) standardized facade; (iii) standardized decor or color scheme; (iv) uniform apparel;(v) standardized signage; or (vi) trademark or service mark; provided, however, a "formula business" shall not include an automated, standalone vending machine. SAN FRANCISCO Formula Retail Use. Formula retail use is hereby defined as a type of retail sales activity or retail sales establishment which, along with eleven or more other- retail sales establishments maintains two or more of the following features: a standardized array of merchandise, a standardized facade, a standardized decor and color scheme, a uniform apparel, standardized signage, a trade mark or a service mark. SAUSALITO "Formula Retail" means a type of retail sales activity or retail sales establishment, including food service, which is required to maintain any of the following: standardized ("formula")-array of services and/or merchandise, trademark, logo, service mark, symbol, sign, decor architecture,. layout,_ uniform, or similar standardized feature. CORONADO 86.04.682 Retail, Formula. "Formula Retail" means a type of retail sales activity or retail s-ales establishment (other than a "formula fast food restaurant") which is required by contractual or other arrangement to maintain any of the following: standardized( "formula") array of services and/or merchandise, trademark, logo, service mark, symbol, decor, architecture, layout, uniform, or similar standardized feature. ITEM 2: DEFINITION OF FORMULA BUSINESS "Formula retail means.any type of retail sales activity or retail service activity conducted within a retail establishment which, 6 or more operational retail establishments located within SOUTHERN CAL/FORNIA." By determining that to qualify as a Formula, 6 business locations must be in So CA, this Draft Ordinance mandates an unwarranted loophole for established national and global corporate Formula powerhouses. The entire point of enacting this Ordinance is to balance Formula corporations with smaller, independent, and unique businesses. This clause defeats this purpose and serves to encourage more evictions. This is easily demonstrated by the proliferation of high-end international chains such as Lavin, Missoni, and Henry Beguelin into the Civic Center. Corporate businesses that establish a storefront primarily-for their advertising purposes, by the use of the name "Malibu", driving out Malibu's unique and independent venues. The unintended consequences of this clause are severe. This prejudicial requirement puts our city on precarious legal footing by discriminating in favor of national and global companies and penalizing in-state, regional businesses. For this reason alone, this requirement must be eliminated. This clause removes Malibu from its authentic context, which is that Malibu is not merely a regional destination it is a global destination. Malibu has no need to distinguish itself in Southern California; Malibu competes on a state, national and global level Here are examples of recognized chains that have been in the Civic Center that this Malibu's loophole would exempt. Nobody can state with any legitimacy that these are not Formula Businesses: CHROME HEARTS NEW YORK LAS VEGAS HONOLULU, HI LOS ANGELES MALIBU LONDON PARIS HONG KONG KOWLOON, HONG KONG TOYOKO,JAPAN SHIBUYA-KU, TOKYO OSAKA,JAPAN FUKUOKA,JAPAN AICHI, JAPAN GINZA, JAPAN HYOGO,JAPAN SEOUL, KOREA TAIPEI, TAIWAN TAIPEI, TAIWAN (2ND LOCATION HENRY BEGUELIN USA: COLORADO: Aspen CALIFORNIA: Los Angeles Malibu San Francisco CHICAGO, ILLINOIS NEW YORK ITALY: Milan 2nd Milan Rome Koloaki Athens
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