NIc Nak Redux: Just Say NO to Desley Brooks and Rebecca Kaplan

We thought readers who wanted a break from the mismanagement of the Oakland Tree Services Program, would like to hear a quick update on the Nic Nak. After a long and contentious public process that resulted in the approval of a convenience store, but the denial of alcohol sales at the Nic Nak, the owners of the Nic Nak seem to have lost steam. Their convenience store is open erratically, but mostly shuttered, fenced off and closed with little to no interaction with the neighborhood and community. From time to time someone will sell watermelons from the parking lot. Signs on the property still advertise the sale of alcohol, even though it is prohibited. Surprisingly, several days ago the billboard on the property was removed. Apparently, the Pannells have yet to sue the City as threatened at the public hearings and encouraged by Councilmember Desley Brooks. Most likely, they have not done so because their legal case has little merit. Just as Councilmembers Desley Brooks' and Rebecca Kaplan's support of the Nic Nak had little merit.

The supporters of the Nic Nak, such as Councilmembers Desley Brooks and Rebecca Kaplan, were adamant that the owners were good, law abiding citizens, who ran a clean business. There is no doubt the site is well-maintained and clean, free of graffiti, litter and weeds. Yet, despite their claims, the Pannells still seem to think the rules and laws do not apply to them. As a condition of operating the convenience store, the conditional use permit requires the Pannells to carry out several improvements including relocating portions of the fence, installing some landscaping, pulling the sign pole off the public right of way and removing the RV that is parked on site. The Pannells have made little effort to fully comply with the conditional use permit. So where are Councilmembers Desley Brooks and Rebecca Kaplan when it comes to enforcing the terms of the Nic Nak's permit since they were such staunch supporters?

Councilmembers Desley Brooks and Rebecca Kaplan suggested they would work with the Pannells and encourage them to use City programs to determine what kind of development and uses could be undertaken at the site once it became clear alcohol sales would not be approved by the City Council. It is unclear whether the City Councilmembers or the Pannells have made such efforts to date. The community would certainly be interested in a pedestrian-oriented development that takes advantage of the transportation corridors along Shattuck and Alcatraz and that had neighborhood serving uses. But not the liquor store of which Councilmembers Desley Brooks and Rebecca Kaplan were staunch advocates.

What is interesting is that two of the most ardent public supporters of the Nic Nak's application to sell alcohol in an already over-saturated liquor store market, Desley Brooks and Rebecca Kaplan, are running for election. Desley Brooks is asking her constituents to return her to another term on the City Council and Rebecca Kaplan is seeking a Mayoral bid.

If you recall, Desley Brooks intentionally accused the opponents of the Nic Nak liquor sales of being racist and sending out racist emails. She did this at two separate public hearings. When called to task on this and asked to back up her inflammatory statements through a Public Records Act request, Desley Brooks stalled, stonewalled, and then failed to respond in a timely fashion.  She had to be bird-dogged by the City Attorney to comply. After threats of litigation and public exposure, she finally complied and provided some of the emails. She conveniently left out several key emails. As expected, there was no smoking gun. Desley Brookes had intentionally misled the City Council and the public with her inflammatory accusations. Some might say she lied. One term does come to mind--ethically challenged and morally bankrupt. Certainly not someone who should be returned to City Council by the voters.

As for Rebecca Kaplan, the Pannells have posted in their window a sign supporting Rebecca Kaplan for Mayor. If you recall, Councilmember Kaplan was "ensnared in a racial dispute" http://www.eastbayexpress.com/ebx/kaplan-ensnared-in-racial-dispute/Content?oid=1737565 over the Nic Nak. Her staunch support of more liquor stores seemed to many North Oakland residents to be a quid pro quo vote swap for the support of the Oakland Black Caucus and Geoffrey Pete and a misguided effort to pander to black voters. The fact that Rebecca Kaplan has an impressive academic resume, including a BS from MIT, an MA in Urban and Environmental Policy from Tufts and a JD from Stanford Law School, did little for her in analyzing the Nic Nak fact pattern and  applying the law to the facts. Her eagerness to sell out, and her inability to see past the greedy political buy-off from Geoffrey Pete and the Oakland Black Caucus and do the right thing by denying the Nic Nak's ability to sell liquor, was shocking and revealing.  Hardly the leadership needed to steer Oakland in the right direction and certainly not mayoral fiber. Not surprising is that Geoffrey Pete has strongly endorsed Rebecca Kaplan.To this date, Rebecca Kaplan has failed to adequately explain her support of the Nic Nak Liquor Store. Just ask her campaigners why she voted to approve Nic Nak and watch them scatter.

In the upcoming election, just say no to Desley Brooks and Rebecca Kaplan. Don't be fooled by the slick packaging and glossy ideas.


Rebecca Kaplan and Desley Brooks are hardly the type of leaders Oakland needs..

City Council Denies Nic Nak Proposal to Sell Liquor

Tonight, the City Council overturned the Planning Commission's approval and denied the Nic Nak convenience store the ability to sell alcohol. Focusing on the legal requirements for a variance and discounting the Planning Commission's fabrication of "historical relevance" as a basis for granting a major variance, the Council voted 5-3 to uphold the appeal and deny the alcohol sales. Many of the arguments adopted by Councilmembers voting to uphold the appeal were arguments We Fight Blight has articulated over the last year and that were confirmed by the City Attorney in his legal opinion. Councilmembers Brunner, Quan, Nadel, Kernigan, and De La Fuente voted in favor of the appeal. While Councilmembers Brooks, Kaplan and Reid voted to deny the appeal. More details to come later.

Nic Nak to Return June 1, 2010 for Fifth Public Meeting

The Nic Nak saga returns to the Oakland City Council on June 1, 2010 for its fifth public meeting. For what should have been an open and shut land use decision denying alcohol sales at 6400 Shattuck Avenue, the Nic Nak permit review has turned into a three ring circus replete with accusations of gentrification, racism and intolerance. While most of those charges have come from the supporters of the Nic Nak, including the applicant Ashrious Pannell, Jeffrey Pete of the Oakland Black Caucus and the Uhuru Group, Oakland City Council members Desley Brooks and Rebecca Kaplan have leveled their own accusations against neighbors who are fighting to maintain and improve their quality of life by uniting against what would be the 20th liquor store within a mile radius of Nic Nak in North Oakland and South Berkeley.

The Nic Nak representatives requested a delay in the vote so that their new attorney can come up to speed on the issues. Mind you this is their third attorney who has represented them over the past year. City Council, however, could not even agree on granting the delay, with a four to four vote, requiring the matter return on June 1, 2010 with a tie breaking vote by Mayor Dellums. If Mayor Dellums fails to show for the tie breaker, the matter will be voted on that evening. If Mayor Dellums votes in favor of the delay, the matter would be voted on June 15, 2010. Critics of the delay believe it is intended to provide the Pannell's with one more opportunity to lobby City Councilmembers behind the scenes.

Despite the fact the City's professional Planning Staff and the City Attorney have both come out against the Nic Nak, stating that the City cannot make the necessary legal findings to approve the project, and despite the City Attorney declaring publicly in its legal opinion the City would lose in court should it approve the Nic Nak using the rationale of "historical relevance", Councilmembers Desley Brooks, Rebecca Kaplan and Larry Reid  continue to support additional liquor stores in an already over saturated market.

While Councilmember Reid has been silent about his rationale for supporting more liquor stores, Councilmember Desley Brooks has been quite vocal and passionate in her desire to allow Nic Nak to sell liquor, arguing the City Attorney did not provide both sides of the case and did not provide appropriate citations to support his legal opinion. She also noted that because the City Council has made exceptions in the past allowing liquor to be sold near a school in Downtown Oakland, that justice demands the City Council look the other way and allow Nic Nak to sell liquor despite being within 1,000 feet of another liquor store.  In addition, Councilmember Brooks publicly rebuked those who are opposed to additional liquor sales by stating that she was privy to certain emails that raised the issue of race and that if people where brave enough to raise such concerns under the cover of a private email they should be brave enough to raise them in the light of day at the public hearing, implying that the emails were somehow racist in nature. All the while, she exhorted interested parties to rise above race and focus on the merits of the project. Despite her passionate support of liquor sales, Councilmember Brooks has yet to articulate a rational, legal basis for allowing Nic Nak a major variance.

Meanwhile, Councilmember Kaplan continued to exhibit her bizarre and seemingly poor leadership qualities over the Nic Nak affair. At the May 18th City Council meeting, she made a rambling and embarrassing apology to the audience, yet failed to provide any rationale as to why she wants to bring more liquor stores to North Oakland. However, she did provide some explanation to Robert Gammon of the East Bay Express for his article Kaplan Ensnarled in Racial Dispute. Discussing her vote supporting liquor stores she stated "This wasn't a quid pro quo" for black support.  "The fact is, I couldn't rule against this gentlemen [Pannell] based on what was in front of us." According to Gammon, "Kaplan contended that the anger focused on the store is misdirected because it hasn't attracted crime. And she pointed out that the only reason Nic Nak's permit is up for a vote is because Pannell closed the store for a time. If he hadn't, neighbors effectively would have no recourse to close it down permanently." Discussing the issue of race, Kaplan stated "Think about it, if you run a store that hasn't caused crime and people are trying to take away your permit, might not you wonder whether your race is an issue? And wouldn't you feel that's unfair?"

What is troubling about the political support for Nic Nak is a seemingly complete lack of understanding of the legal requirements and the necessity to make legal findings in approving the major variance. No one has taken away Mr. Pannell's permit. He lost his permit and his right to sell alcohol at 6400 Shattuck under the deemed-approved status for non-conforming liquor outlets by completely shutting down for five years. Moreover, neither Reid, Brooks or Kaplan have offered a sound, legal rationale for approving new liquor sales at Nic Nak that could pass judicial scrutiny. If you want to talk about the merits of  the proposed liquor sales, as Councilmember Brooks has requested, you need to evaluate the liquor sales against the City's stated policies and regulations and make the legal findings either supporting or denying a major variance for the liquor sales. It's not the community that is misdirected as Councilmember Kaplan states, it is Councilmembers Reid, Brooks and Kaplan's blind support for more liquor sales in Oakland.

Maybe, just maybe, these Councilmembers might realize the opposition to Nic Nak is not a racial issue, but a quality of life issue. Maybe they will realize that the claims of racism, gentrification and intolerance are simply a smokescreen intended to confuse the real legal issue because there is no legal rationale to approve Nic Nak. When evaluating whether the City has acted in an arbitrary and capricious fashion to approve a major variance, the courts will not rely on the emotional testimony of the applicants and their supporters, but the regulatory requirements and whether the Nic Nak meets the legal threshold for a major variance. The City Attorney says it does not.

Nic Nak to Return to City Council May 18th

The appeal of the Nic Nak Liquor store is returning to the City Council and has been agendized for Tuesday, May 18, 2010 at 6:30 pm at the Oakland City Hall, 1 Frank H. Ogawa Plaza, Oakland, CA. See agenda item 9.1  (City Council Agenda).

At it's meeting of May 4, 2010, the City Council was unable to either deny or approve the proposed alcohol sales for the Nic Nak Liquor Store. This was due to an insufficient number City Council members and the inability to garner enough votes one way or another. Consequently, the proposed liquor sales remain in limbo. City regulations require this matter to return to City Council until a successful vote either in favor of the appeal or denial of the appeal is achieved. Although the public hearing is closed, the public is still entitled to speak on the matter under Oakland's Sunshine Ordinance and the California Ralph M. Brown Act.

At the May 4, 2010 City Council meeting, Council members Brunner, Quan, Nadel and Kernighan voted consistent with the City Attorney's legal opinion to approve the appeal and deny liquor sales at 6400 Shattuck Avenue. Council members Kaplan, Reid and Brooks voted contrary to the City Attorney's legal opinion to deny the appeal and allow liquor sales at 6400 Shattuck Avenue. Absent from the meeting was Council member Ignacio De Lafuente, who will be a pivotal vote in whether the City Council approves liquor sales at Nic Nak. De Lafuente, like most Council members has struggled with problem liquor stores and bars in his own District.

Since originally being proposed, members of the East Lorin Neighborhood Association, the Shattuck Crime Prevention Council, and numerous residents, as well as We Fight Blight, have consistently stated the alcohol sales at 6400 Shattuck Avenue are not consistent with the the legal requirements of the deemed approved program for non-conforming liquor stores and major variances. This position was supported by the Planning Staff when it originally recommended denial of the alcohol sales to the Planning Commission. A central point of contention has been the fabricated rational of "historical relevance" from the City Planning Commissioner, Doug Boxer, and former City Planning Commissioner, Anne E. Mudge.

At the last City Council Meeting, the City Council, in a highly unusual move, voted to waive its attorney-client privilege with the City Attorney's Office to allow the City Attorney to provide its legal opinion at the public hearing. The City Attorney stated the use of "historical relevance" to approve a major variance for alcohol sales at 6400 Shattuck was indefensible and would be overturned by the courts if it were litigated.

If liquor sales were to be approved by the City Council, the matter would likely end up in Superior Court. This would put the City in the unenviable and untenable position of defending a liquor store despite its stated policy of trying to reduce the number of liquor stores in the City. Since the City Attorney's Office and the Planning Staff have both unequivocally stated the findings for a major variance cannot be met in this case, they would not be in a position to defend the City against litigation. Quite the contrary. The City would likely have to hire a private law firm to defend its interests. Obviously, at a time when the City is facing a major budget crisis, is moving to reduce police services and is asking residents for more taxes, it seems imprudent to approve a project the City knows it will lose in court. Moreover, the City's reputation is already tarnished among Bay Area residents, does it really need more bad publicity over a liquor store? Up to this point, the City has expended a significant amount of staff time dealing with the City Planning Commission's ill-fated decision to approve Nic Nak using "historical relevance". Why toss more good money after bad?

What continues to be interesting are the politicos lining up to support Nic Nak--Kaplan, Reid and Brooks. While there was not much surprise in Desley Brooks supporting Nic Nak, some have wondered why Reid would approve such a project given his own troubles fighting liquor stores in his District. While Reid is sympathetic to African American owned businesses, many thought he would abstain.

Kaplan's vote, while unexpected, has been explained by some as her crass political desires for a Mayoral run and the need to cultivate support among African American voters. Apparently, Desley Brooks is the only Council member who openly endorsed Rebecca Kaplan in her bid for the at-large City Council seat she recently won. Also, the Oakland Black Caucus is endorsing Kaplan's bid for Mayor should Dellum's not run (which is highly likely). Their PAC endorsed Kaplan's bid for City Council too. Now that this matter is returning to the City Council on May 18, 2010, Rebeca Kaplan and Larry Reid can more fully explain to voters why they think approving yet another liquor store in Oakland, despite the legal opinion of the City Attorney, is a prudent decision.

Council member Kaplan has been asked by some members of the North Oakland community to explain her vote. Yet, she has largely been silent and has refused to respond directly to constituents in an apparent attempt to duck the controversy. However, she did speak with Bob Gammon of the East Bay Express (Kaplan Ensnared in Racial Dispute) explaining that she could not support the City Attorney's legal opinion because he failed to provide citations to support his conclusions. One has to wonder how a Stanford and Tufts graduate and her staff couldn't do a simple google search for relevant published court decisions on variances to understand the citations she claims the City Attorney failed to provide. On the other side, there are no published court cases supporting the use of "historical relevance" to approve major variances. Kaplan also alleged that Nic Nak was being unfairly targeted by nearby residents. As much as she attempts to deflect criticism, residents continue to wonder about Kaplan's willingness to trade votes to garner political support, despite the legal ramifications and the impacts to quality of life. Hardly the leader we expected.

City Council Can't Make a Decision on Nic Nak

Tonight, the City Council was unable to make a decision on the Nic Nak Liquor Store. A large number of neighborhood residents appeared before City Council asking the appeal be upheld and liquor sales at 6400 Shattuck be denied. After hearing scores of residents question the use of "historical relevance" as a basis for approving a major variance, expressing concerns about setting a new Citywide precedent, and making personal pleas to deny liquor sales, the City Council voted to break attorney client privilege and allow the City Attorney to provide its legal opinion on whether "historical relevance", a creation of the Planning Commission, could be upheld. In short, the City Attorney stated that if "historical relevance" were presented to the courts as a basis for approving a variance for Nic Nak Liquors it would not be  legally defensible and would be struck down.

Nevertheless, as Oakland politics go, this was not enough for some City Council Members to support the appeal. Both Council President, Jane Brunner, and Pat Kernighan provided thoughtful and well-reasoned rationales for supporting the appeal and the City Attorney's legal opinion. Given that this liquor store is located in Jane Brunner's district, it was anticipated the Council would likely go with Brunner. However, Desley Brooks called for a motion to deny the appeal after an emotional and pointed, although misled, support for Nic Nak. That motion was supported by Desley Brooks, Larry Reid, and Rebecca Kaplan. Jane Brunner, Pat Kernighan, Jean Quan and Nancy Nadel all voted against the motion to deny. There were no abstentions.

Pat Kernighan then moved to support the motion to approve the appeal and deny the liquor sales. That motion was supported by Pat Kernighan, Nancy Nadel, Jean Quan and Jane Brunner. Desley Brooks, Larry Reid and Rebecca Kaplan opposed the motion. There were no abstentions.

In effect, the City Council was unable to make a decision. Apparently a simple majority does not win the day for a motion. A plurality is required. Consequently, the Nic Nak is in limbo. They are unable to sell alcohol as they have no approval for a major variance. For those supporting the appeal, this is not an altogether bad outcome. The City will have to figure out the next procedural step which could include bringing Nic Nak back for a full vote before the Council. Since Ignacio DeLaFuente was absent, his vote could be the determining factor in this case. When this comes back to City Council is anyone's guess. Apparently, this circumstance is quite unusual.

Other unusual or bizarre moments in the hearing included the fact the Pannell's and their supporters did not seem to understand the critical legal issues at hand. The Nic Nak representatives provided rambling and sometimes incoherent and disjointed presentations that failed to address how they satisfied the legal findings for a variance. At one point, President Brunner asked Mr. Pannell's daughter if they had an attorney who could step in and speak before their time was up. The Nic Nak's attorney, Mr. Hiawatha, stepped in and was even more off-point and incoherent, despite the fact that they were given additional time not afforded the appellants.

If you recall, the Pannell's previously had Clinton Killian (perennial Council hopeful, and current candidate for Jean Quan's seat) as their legal representative, but dismissed him in favor of family friend and attorney, Mr. Hiawatha. Most supporters for the Nic Nak were emotional, but failed to speak to the relevant legal or policy issues. Many were timed out and unable to finish their presentations. This seemed to be emblematic of the changes that are occurring in North Oakland.

During the course of the hearing one supporter of the appeal made a reference to approval of the Nic Nak opening the door to allowing other non-conforming uses under the "historical relevance" rationale. They used a massage parlor in Piedmont as an example. This elicited widespread laughter frrom the audience. Yet, one supporter of the Nic Nak took umbrage to this and made intimidating verbal and physical gestures to residents supporting the appeal. An Oakland police officer had to step in and address this individual. At the conclusion of the hearing, some supporters of the appeal were concerned enough to ask the City Council President, Jane Brunner,  for a police escort upon leaving the chambers.

What is certain in all of this is that Mayoral hopeful, Rebecca Kaplan, has lost a tremendous amount of cache in North Oakland. While her progressive politics and her focus on attracting business in Oakland plays well to many North Oakland voters, her naive and obvious pandering to Geoffrey Pete and African American votes by supporting the Nic Nak may have misfired quite badly. Many North Oakland residents were sadly disappointed and outraged by her lack of leadership. In fact, Kaplan failed to provide any rationale for her vote and was totally silent when an opportunity came to discuss the matter, yet voted to support the Nic Nak's ability to sell liquor despite the City Attorney's legal opinion stating it was not legally defensible. This is similar to her deafening silence on the City Attorney, John Russo's, injunction on the Northside Gang in North Oakland which is strongly supported by Chief Batts ( Gang Injunction). Despite requests to clarify her position on the injunction, Kaplan has been silent. Is this the type of Mayor we want? Despite her degree from MIT, her MA in urban and environmental policy from Tufts and her JD from Stanford, she doesn't seem to understand basic land use law, or at least is willing to disregard it for votes from the African American community. Come on Ms. Kaplan! We expect and want more from our our elected officials who are here to represent all of Oakland. We are disappointed, to say the least.

Desley Brooks and Larry Reid were expected to provide some support for Nic Nak given their polictical constituencies. While we disagree with Desley Brooks' position, we have to give her credit for making a spirited defense of Nic Nak, something that Rebecca Kaplan failed utterly to do. That's leadership. Rebecca Kaplan's apparent lack of understanding of how this issue plays out throughout Oakland is astonishing, given her role as the at-large City Council Member. North Oakland residents will not forget this at election time and will make sure others in the city understand her role in attempting to weaken the deemed approved status for non-conforming liquor sales and opening the door for other non-conforming land uses for her personal gain. 

This matter is not over. Both the City Planning Staff and the City Attorney are now on record stating the use of "historical relevance" is not defensible and has no basis in the Oakland Planning Code--something we have been stating from day one. This is a sheer fabrication of Planning Comissioners, Doug Boxer and Anne E. Mudge, the two Planning Commissioners who originally led the charge to approve liquor sales at 6400 Shattuck. For Anne E. Mudge, a respected land use attorney, this has to be a professional setback that her future clients must question. For Doug Boxer, the son of Barbara Boxer and a political hopeful, one has to question his judgment and his ability to wade through tough legal issues.

If the City ultimately approves the liquor sales at Nic Nak, the matter will most certainly end up in court. The City will spend limited tax dollars and staff resources defending a liquor store, resources that could and should be used for public safety and other core public services.  Yes, that is Oakland for you. We will take away resources from public safety to defend a liquor store.... a liquor store the Planning Staff, the City Attorney and scores of residents all agree should not be approved. Core priorities?

NIc Nak Liquors coming to City Council Tonight

As a reminder, the Nic Nak Liquor Store is coming to the City Council tonight on Appeal. The matter will be heard at 6:30 pm at 1 Frank H. Ogawa Plaza, 3rd Floor, Oakland. City Council Agenda (page 8 of 12). You can also access the staff report here Staff Report.

This may prove to be an interesting public hearing. The owners of the Nic Nak, the Pannell's, have circulated fliers in the adjacent neighborhood requesting support for "Your Neighborhood Merchant", but failed to note the issue is related to alcohol sales, not the convenience store sales. They are even offering free rides to the meeting for their supporters in a classic election day get out the vote maneuver. This is important since the Pannell's and the bulk of their supporters do not even live in North Oakland. Whether they intend to use the same tactics employed at the Planning Commission Meeting is another question. The City Council may not have the patience for such theatrics.

Approval of alcohol sales at 6400 Shattuck under the rationale of "historical prevalence" will gut the deemed approved status for non-conforming alcohol outlets and will allow such a rationale to be used anytime anyone wants a variance. This will open the gates to unwanted land uses throughout Oakland and has to the potential to significantly affect the quality of life for residents in neighborhoods throughout the City.

Approval of Nic Nak Liquors Based on Historical Relevance?

The appeal of the Nic Nak Liquor Store is agendized for the City Council on May 4, 2010 at 6:30 pm (see page 8 of 12 City Council Meeting Agenda May 4, 2010). This is a critical meeting that could significantly change City policy on allowing non-conforming liquor sales to be approved in the City of Oakland and perpetuate the proliferation of liquor stores.

The City of Oakland Planning Staff are recommending the City Council approve the Nic Nak Liquor Store using the unique rationale of "historical relevance" (Planning Staff Recommendation).  Legally, the approval of the Nic Nak hinges on whether the City can make the findings for a Major Variance and a Major Conditional Use Permit. Perhaps the most crucial are the findings for a Major Variance.

The City of Oakland website that provides information to the public and potential applicants states that: A Variance is a permission to depart from the development standards, or setbacks, of the zoning district. Variances provide the discretion and flexibility to resolve difficulties or hardships that may be inappropriate where special or extraordinary circumstances occur on the property. These circumstances do not mean economic hardship; rather, they refer to topographic or physical attributes of the site that do not allow for the development standards of the Zoning District to be applied.

The Planning Staff originally found the City could not make the finding for a Major Variance or a Major Conditional Use Permit for alcohol beverage sales for Nic Nak, particularly since liquor stores should not be located closer than 1,000 feet to each other to avoid clustering and to prevent the attendant detrimental affects of concentrating liquor stores.The original Planning report recommending denial of liquor sales at 6400 Shattuck stated that:

The proposed Variance to the 1,000 foot separation standard in a neighborhood could set a precedent for other alcohol sales applications in the area...Allowing alcohol sales to cluster closer than the 1,000 foot radius could be detrimental to the vitality of an emerging commercial and mixed node...Staff recommends denial of the Major Variance and Conditional Use Permit for Alcoholic Beverage Sales. The findings required by the Oakland Planning Code are not fulfilled in this case. Granting the request would cause an adverse precedent. The liquor store lost its legal status 5 years ago and community demand has been well-served by other Alcoholic Beverage Sales locations. A neighboring market already provides beer and wine services to the immediate Shattuck neighborhood. Several other liquor stores provide services near the edge of the 1,000 foot radius from this store; and this additional venue for liquor is not necessary. The potential for adverse secondary effects, such as loitering and littering, would likely increase with another operator in the future.

At the original Planning Commission meeting in 2009, the applicant, Ashrious Pannell, and some of his supporters claimed that those opposing the liquor sales were racist, and wanted to drive out African American-owned businesses to promote gentrification. Mr. Pannell even threatened to sue the City and claimed that City Planner David Valeska had been disrespectful to him. Among his supporters have been the Uhuru Group, the Black Chamber of Commerce and Geoffrey Pete of the Black Oakland Caucus who often advocates for African American-owned businesses. The Planning Commission, led by Commissioner Doug Boxer and outgoing Commissioner Anne E. Mudge, directed the City Planning Staff to abandon its recommendation for denial and develop new findings for their approval. The revised Planning Commission findings stated that:

Historical relevance of the 6400 Shattuck Avenue property constitutes a unique physical circumstance. The facility and activity cannot be moved while retaining these historical associations, including neighborhood, social and leadership activities.

The idea of "historical relevance" was created by the Planning Commission to justify a Major Variance and Conditional Use Permit since there was no other rational basis to approve the liquor sales. In fact, the applicants provided no evidence as to any unique or extraordinary physical or topographic attribute of their site that precluded them from meeting the intent of the Oakland Planning Code. Oakland Planning Manager, Scott Miller, and City Planner, Dave Valeska, acknowledged the idea of "historical relevance" had never been used before by the City of Oakland in approving any project and they were not aware of "historical relevance" being used in other jurisdictions as a basis for approving a variance. 

The matter was then appealed by the East Lorin Neighborhood Association and a large number of neighbors in a lengthy appeal that essentially tore apart the Planning Commission's weak findings for approval in unyielding detail (for you policy and legal wonks we highly recommend you read the 37 page appeal attached to the Planning recommendation Planning Staff Recommendation).

Regarding the use of "historical relevance" as a basis to approve alcohol sales, the appellants stated that:

The proposed use of Alcohol Beverage Sales is in direct conflict with the Oakland Planning Code in that it is located within 1,000 feet of an existing liquor store. The stated intention of the Oakland Planning Code Section 17.114.010 as it relates to non-conforming uses, such as Nic Nak liquors, is that: "The purpose of these regulations is to control, ameliorate, or terminate uses which do not conform to the zoning regulations. These regulations shall apply to all nonconforming uses." The Planning Commission's approval of Alcohol Beverage Sales that allows and legitimizes a nonconforming use which had a lapsed Deemed Approved Status for at least five years is contrary to the stated intentions and purpose of the Oakland Planning Code relating to nonconforming uses. Moreover, the use of a highly unusual, and unorthodox planning theory, never before used in the history of the City, that equates "historical relevance" to a unique or extraordinary physical constraint as a fundamental basis for approving a Major Variance stands existing planning law, theory and practice as well as the Oakland Planning Code on its head. This is a clear and substantial misapplication of the Oakland Planning Code wherein approval of Major Variances are limited to unusual or extraordinary physical site constraints such as topography, irregular lot configurations, or natural obstacles such as rock outcroppings. Using a theory of "historical relevance" that appears to be based in Section 106 of the National Historic Preservation Act as a rationale to approve a Major Variance is an abuse of authority and discretion by the Planning Commission. 

In its current recommendation to approve alcohol sales at the next City Council meeting on May 4, 2010, the recommendation now fashions a different basis for "historical relevance" that focuses on race and states that:

Regarding "historical relevance", which is discussed at length below, this is a suitable characteristic for evaluating  projects under the Land Use and Transportation Element of the Oakland General Plan...

Regarding "historical relevance" as a Variance basis, staff notes sections of the Oakland General Plan Land Use and Transportation Element that mention historically relevant issues, particularly for African American residents such as the owners of 6400 Shattuck Avenue:

Page 1, "Many African Americans arrived...Oakland's ethnic, racial and cultural diversity cuts across all economic strata and through neighborhoods from the hillsides to the working waterfront..."

Page 5, "...the character of established neighborhoods will be maintained and enhanced...clean and attractive neighborhoods rich in character and diversity, each with its own distinctive identity...the places that make Oakland work are many, because the physical side of the City is as varied as its culture and economy. The story of the City's past and its future is captured in an appreciation of the types of places that make Oakland work..."

"A Brief History of Oakland," includes p. 18 a reference to "Oakland's Established African American Community" and to single businesses as important to vitality.

Page 73, Policy D12.1. "Build on and promote Oakland's education resources, historic importance as an entertainment venue, existing cultural diversity..."

Page 113, Policy N9.8, "Locations that create a sense of history and community within the City should be identified and preserved where feasible..."

Page 144, "The classifications used in the Land Use Diagram...take into account the existing and historical patterns of development in Oakland..."

Over the past 4 decades, some African American owned community businesses have left North Oakland. 6400 Shattuck Avenue business remains, a remnant of an historical pattern of development in Oakland. The above examples of citations frame the public testimony of October 7, 2009 and earlier hearings, that 6400 Shattuck Avenue has been part of the City's diversity, economy and cultural identity, particularly for the neighborhood, for four decades. "Historical relevance" is a suitable basis for considering a Variance of this type.

We are surprised and not quite sure how the City Planning Department and the City Administrator, Dan Lindheim, make the leap from general policy support for ethnic, racial and cultural diversity to approving a Major Variance for a non-conforming liquor store that has been out of business for at least five years when variances, by the City's own policies, speak to special or extraordinary circumstance that relate to topographic or physical attributes of a site. By positing a race-based rationale for approval, the City is explicitly acknowledging the elephant that has been in the room, but few have been willing to acknowledge.

In essence, the City Planning Staff are saying the City Council's adopted policy, under the deemed approve status for non-conforming liquor stores, which is to eliminate non-conforming liquor stores that cease to be in continuous operation for 90 days or more, is to be ignored or set aside since the Nic Nak Liquor Store is historically an African American-owned business with self-proclaimed "historic ties" to the community. This is the City's kernel of "historical relevance".

Unfortunately, the use of "historical relevance" seems to be a rather thinly veiled rationale for approving alcohol sales, sales that otherwise fail to meet the most fundamental requirements of the Oakland Planning Code, only because the alcohol sales are proposed by an African American-owned business. This approach seems to put the City on even shakier grounds for a  lawsuit should it approve the liquor sales. Nowhere in the required findings for Major Variances do the regulations speak to, discuss, or posit a theory for "historical relevance" as it relates to African American-owned businesses or any other type of businesses. The only policies actually noted by the Planning Staff are Policy D12.1 which discusses building on and promoting existing cultural diversity and Policy N9.8 which suggests that locations that create a sense of history and community within the City should be identified and preserved where feasible. Policy D12.1 does not address how this is to be done by approving liquor stores and Policy N9.8 addresses locations, not specific land uses such as liquor sales. In fact, there are plenty of cases in Oakland wherein liquor stores have destroyed neighborhoods and have destroyed a sense of community through alcohol addiction, increased violence, graffiti, loitering, drug dealing, prostitution and other negative behaviors.

Apparently, the City staff has poured over the General Plan and this is the only policy language they can find that remotely relates to "historical relevance"? The use of vague policy and general plan language by the City to suggest that African Americans should be specifically afforded a privilege under the Oakland Planning Code not granted to others is highly problematic and opens the City to challenges under the Equal Protection Clause. As a matter of hierarchy, the General Plan sets our general policy guidelines. The Oakland Planning Code then implements those policies through specific regulations such as the criteria for Major Variances. The criteria for Major Variances relate to special or extraordinary circumstances related to topography or physical site constraints not cultural diversity.

Under the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court has established a three tiered approach for evaluating suspect classifications established by government (Strict Scrutiny). When government establishes and uses a classification that is based on race, national origin or religion it comes under strict scrutiny by the courts. This means the government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. Additionally the law or policy must be narrowly tailored to achieve that goal or interest and be the least restrictive means for achieving that interest. Here, it seems that the City is saying they want to specifically promote and retain African American-owned businesses by granting a Major
Variance and a Major Conditional Use Permit to an African American-owned liquor store using race-based policy and general plan language in a way that gives preference only to African Americans, even though the land use is a liquor outlet and the City has other compelling public policies based on the general health, welfare and safety of residents that direct the City to eliminate non-conforming liquor outlets should they cease continuous operations for 90 days or more. We are not aware the City of Oakland has any other general plan policies that would support approval in similar circumstances if the applicants were Latino, Chinese, Korean, Persian, Yemeni, Christian, Muslim, Hindu or any other race, national origin or religious classification.

The use of "historical relevance" seems to be a sheer fabrication on the part of the Planning Commission and could set a significant precedent. Some have questioned whether the Pannell's have cashed in political chits among politically powerful and connected Oaklanders and have maneuvered behind the scenes to influence the City's recommendation for approval. Certainly, those discussions and agreements would be subject to discovery under the penalty of perjury if the matter is taken to court and could make for some interesting news stories highlighting backroom deals.

If the City believes there is a compelling public interest in promoting African American-owned businesses or any other specific classification of businesses within its jurisdiction, it should develop policies and programs to do so that can be debated upfront in public hearings by the entire community and that can withstand judicial scrutiny, rather than trying to create new policies adhoc by shoe-horning a liquor store for approval because it happens to be owned by an African American family.

While race, national origin, or religion should never be a basis for making land use decisions, in this case the City can still provide support for the ethnic, racial and cultural diversity found in the Nic Nak being an historically African American-owned business by upholding the approval for the convenience sales, while supporting its existing policies on deemed approved non-conforming liquor stores by denying the liquor sales. For the past year the Pannell's have shown they can operate the Nic Nak successfully without liquor sales. In fact they, have never provided any financial data showing otherwise.

By approving the liquor sales at 6400 Shattuck under the current proposed findings, the City Council will be carving out a specific race-based exclusion for African American-owned liquor stores. If the Council explicitly negates the specific race-based exclusion and determines that "historical relevance" can apply to anyone regardless of race, national origin, religion or any other classification, the City Council then creates a new precedent and exclusion that can be used by anyone for any non-conforming use, not just non-conforming liquor stores; thereby gutting the policy of eliminating non-conforming land uses and bringing them into conformance with the current Oakland Planning Code and subverting the deemed approved status for non-conforming liquor stores.

Residents are not opposed to an African American-owned business. That has never been the case, despite the protestations of the Pannell's and their supporters to the contrary. Resident are opposed to additional liquor sales in a community rife with the effects of over 18 liquor stores within a mile radius of Nic Nak. Neighbors would like to see this site developed to its full potential with higher density, pedestrian-oriented uses that serve the community. Not land uses that are detriment to the community.

This case really highlights whether the City Council is serious about upholding its existing policies on limiting and controlling liquor sales to maintain and improve the quality of life for all residents or whether City Council prefers to confer a special privilege to an African American-owned business to sell liquor in conflict with the Oakland Planning Code, not afforded others.

It begs the question:  If the Nic Nak were owned by any other applicant than an African American, would the City of Oakland be affording him or her the same privilege as the Pannell's and bending over backwards to fabricate policy rationales to do so? Policies that appear to be based solely or primarily on race, national origin or gender are inherently suspect by the courts unless there is a demonstrated compelling interest, it is narrowly tailored and is implemented by the least restrictive means possible. In this day and age, is race really a basis for making land use decisions? Does the City really want to go down this path? Legal challenges over Measure Y show that residents who are frustrated over legally suspect City Council decisions are willing to take matters to court. Nic Nak could be next.

It's time for the City Council to step up and "do the right thing".

Nic Nak Hearing Delayed Until May

The Nic Nak hearing of March 16 at the City Council has been delayed by City Council Rules Committee at the request of the Pannell's and their Attorney, Hiawatha Roberts. Mr. Roberts requested the postponement because a college friend of his and Judge in Texas recently passed away.  Mr. Roberts is to attend the funeral which conflicted with the hearing date. The hearing will be rescheduled most likely the first City Council meeting in May. We Fight Blight will keep you posted on the new hearing date.

Nic Nak Liquors Not Yet Agendized by City Council

As many of you know, approval of the Nic Nak Liquor Store by the City Planning Commission was appealed to the City Council by concerned residents including members of the East Lorin Neighborhood Association and the Shattuck Crime Prevention Council. A written appeal was submitted pointing out in excrutiating detail the flawed justification of the Planning Commission. Interestingly, the appeal was submitted in mid-October, yet the matter has yet to be agendized by the City. Members of the Community were told the matter would likely be agendized in January then it was pushed back to February, yet we still don't have a firm date. We suspect the City is having difficulty in completing the staff report which must address each and every point raised in the appeal. The approval by the City Planning Commission failed to adequately take into account the entirety of the public record, discounted or disregarded important elements of the public record, and then essentially fabricated a new definition for variances to approve the project.

Importantly, a new issue has been raised by the community. A review of public ownership records shows that the land is owned by Mr. and Mrs. Ashrious Pannell, but the building itself in which the proposed liquor use would reside is owned by Mr. Robert Oosley. Mr. Oosley is not one of the applicants and was not on the application that was approved by the Planning Commission. Normally, an applicant for a permit must have adequate site control with an appropriate legal site interest such as fee title, long-term lease, or other acceptable ownership so they can agree to and satisfy the conditions of the permit. Also, the City must ensure the applicant has adequate site control so they can enforce any conditions that are imposed on the project or on the land. In this case, most of the conditions of approval relate to both the land and the building. Apparently, the applicants have been questioned by the City and have informed them that Oosely is the maiden name of Mrs. Pannell. While that may be the case, it does not prove or verify that the Pannell's have an adequate site interest to be issued a permit. Mr. Robert Oosley is not Mrs. Ashrious Pannell. There is a split in ownership. Some members of the Community contend the Pannells must either have Mr. Oosley as a co-applicant or they must purchase the building from Mr. Oosely or enter into a long-term lease agreement with Mr. Oosley or some other acceptable form of legal site. With a split in ownership, the existing permit approved by the City Planning Commission may be invalid. In any case, the City must clear up this discrepancy in ownership before the matter is agendized by the City Council as it may not be ripe for review.

Update on Nic Nak Liquors and the Appeal to City Council

In a large outpouring of support against the approval of the Nic Nak Liquor Store, the North Oakland Community raised the filing fee to appeal the Planning Commission's approval of the Nic Nak Liquor Store. Community members banded together donations ranging from ten to one-hundred dollars. In this down economy, that is a significant indication of how much the North Oakland Community does not want to see another liquor store in its midst. A 37 page appeal detailing the faulty decision of the Planning Commission and the inadequacy of their findings was submitted to the Planning Department. The Planning Department has been preparing a response to the appeal and discussing the legal ramifications with the City Attorney's Office. It is likely the appeal may be heard in January after the holiday season.

In the meatime, the Nic Nak Liquors is precluded from selling any liquor until the matter is decided by the City Council. Jane Brunner, the City Council President and represenative for North Oakland will play a key role in determining whether the Nic Nak Liquor Store can peddle liquor in the already over-saturated liquor market.

Interestingly, We Fight Blight missed another liquor outlet in North Oakland at the corner of Alatraz and College. The approval of Nic Nak would actually result in 20 liquor outlouts within a mile of 6400 Shattuck Avenue, rather than the 19 previously reported. Regardless, the fact is that North Oakland and South Berkeley are plagued with problem liquor outlets. Adding one more liquor store does little to support economic revitalization. One area of interest is that homes in the North Oakland neighborhoods near Nic Nak have been selling quite briskly, indicating a high demand for the area. Unfortunately, Nic Nak Liquors represents a foregone way of life that is no longer supported by the North Oakland Community. Mr. Pannell would do well to reconsider his market and provide a product the community truly wants.

On another note of interest, we understand that Mr. Pannell has released Clinton Killian as his legal representative on the project. A former Planning Commissioner, Mr. Killian has had a checkered past. An expose in the East Bay Weekly during the last City Council election, where Mr. Killian was running for the at-large City Council seat now occupied by Rebecca Kaplan, revealed that Clinton Killian had significant legal and financial problems including unpaid bills and allegations of sexual harrasment. It is unclear whether Mr. Pannell dumped Mr. Killian because of his baggage or whether Mr. Pannell simply does not have the financial resources to keep him on the payroll. In any event, Mr. Killian is out.

Nic Nak Liquors Appealed to City Council

On October 7, 2009, the Oakland Planning Commission approved a major conditional use permit and a major variance for the Nic Nak Liquor Store to sell alcoholic beverages. This approval occured in the face of heavy public opposition by members of the East Lorin Neighborhood Association, the Shattuck Crime Prevention Council and North Oakland business owners.

North Oakland and South Berkeley already have an overconcentration of liquor outlets with a total of 18. Many of these existing liquor outlets have been problematic with reports of increased crime, loitering, graffitti, and public drunkeness. Contrary to the Oakland Planning Code that governs Alcohol Beverage Sales and is geared towards preventing an over-concentration of such outlets, Nic Nak Liquors would be located within 1,000 feet of another liquor store. Despite having its Deemed Approved Status as a legal nonconforming use lapse for five years, the Planning Commission approved Nic Nak's request to reopen. In doing so, the Planning Commissioner's, led by Doug Boxer, Senator Barbara Boxer's son, failed to carry out the stated purpose of the Oakland Planning Code, which is to eliminate and/or ameliorate nonconforming uses such as Nic Nak Liquors. Boxer, like other Commissioners who voted to approve the Nic Nak's application, could not seem to rationalize his support other than to indicate it was very emotional.

Word on the street is that the North Oakland Community is fed up with the Planning Commission's legally suspect decision to approve Nic Nak Liquors and has appealed it to the City Council. Members of the community have banded together raise the almost $1,200 filing fee. Nic Nak Liquors will not be able to sell liquor until the matter is resolved by the City Council. Should the City Council uphold the appeal, the Pannell's only recourse would be to sue the City.

Nic Nak Liquor Store--Nothing different. It's all exploitative.

Nic Nak Liquor Store at 6400 Shattuck Avenue is attempting to reopen after being closed for more than 5 years. Because their Deemed Approved Status as a legal nonconforming use has expired, they must get a Major Conditional Use and Major Variance from the City of Oakland Planning Commission. The Shattuck Crime Prevention Council, the East Lorin Neighborhood Association, business owners and hundreds of residents in the North Oakland Community do not want another liquor store--we already have 18 within one mile of Nic Nak.

The community is opposed to Nic Nak because of the demonstrated link between liquor stores, crime and public health problems. The City Planning Staff originally recommended denial of the Nic Nak liquor store indicating the City could not make the legal findings to approve it--meaning it was contrary to the existing planning laws and regulations in the City of Oakland, not to mention the adopted public policy of the City Council. Nevertheless, the City Planning Commission wants to approve the liquor store. Why? That's a good question that only several Planning Commissioners including Sandra Galvez, C. Blake Huntsman, and Douglas Boxer can answer.

The video below by Mikkey Halstead explores the relationship of liquor stores in African-American communities to its residents. While his video focuses specifically on the exploitative nature of non-black owned liquor stores and their negative effect on African-Americans, we see absolutely no difference in North Oakland between a black-owned liquor store and a non black-owned liquor store and its adverse effect on all residents of our community. From our perspective, which differs from Mikkey Halstead's, the race, ethnicity or national origin of the owner and the patrons is irrelevant. Fundamentally, liquor stores in North Oakland sell the same things: liquor, high octane beer, fortified wines, junk food, processed food, cigarettes, and lotto tickets.

People may argue about food security and the importance of the corner liquor store to low-income communities and the relevance of convenience to those with limited transportation, but the fact remains the same; liquor stores are exploitative by the very products they peddle and the price they extract from their customers. In the case of Nic Nak, it doesn't matter whether Mr. Pannell is African-American or not, he proposes to sell the same products as any of the other 18 liquor stores within a mile, none of which are healthy for the community. North Oakland and South Berkeley are replete with healthy alternatives to the corner liquor store and have an abundance of easily accessible public transportation. The corner liquor store is a legacy of times past when North Oakland and South Berkeley were disadvantaged.

Watch and listen very carefully to Mikkey Halstead. Going beyond the stereotypical characterization of Middle Eastern shop owners (which we resoundly reject), the fundamental storyline here is the damage the corner liquor store inflicts on communities. This video says it all.

Do we really want Nic Nak in North Oakland? Planning Commissioners, do you want Nic Nak in your neighborhood?  Do you really think that it is somehow better that it is an African-American who profits from the corner liquor store at the expense of the community, rather than anyone else?

We have to wonder what really motivates the Planning Commissioners who elected to support the Nic Nak application for a Major Variance. Does the approval of the Nic Nak, despite fundamental conflicts with adopted public policy in the City of Oakland, somehow assuage their liberal guilt? Do they think the approval of a black-owned liquor store is somehow righteous payback for past transgressions? Or are these Planning Commissioners simply positioning themselves for their next political office and think it politically astute to approve a black-owned liquor store using a unique and unprecedented legal theory so they can secure potential future votes in a community where playing racial politics and building coalitions is critical to being elected?

The support of these three Planning Commissioners is only folly as this matter will most certainly be appealed to the City Council and could be litigated in the courts. Commissioners: make sure your findings are well-reasoned and rooted in a strong legal foundation as they will certainly not pass judicial scrutiny as written.

You Planning Commissioners are proposing to sacrifice our community for your own political gain--selfish to say the least. Not unlike Mr. Pannell's proposal to sacrifice our community for his own profit.  Listen carefully. Mikkey Halstead has it right when he shines a light on the unhealthy aspects of the corner liquor store.

CAUTION: The following video may be considered controversial. It uses adult themes and adult language. It is not suitable for children or those who do not wish to hear adult language.

Nic Nak Liquors--At What Cost to Our Youth

As many of you know, the proposal to open Nic Nak Liquors at 6400 Shattuck Avenue has stirred a tremendous amount of controversy in North Oakland. Many of those opposed to Mr. Ashrious Pannell's proposed liquor store cite an over abundance of existing liquor stores in North Oakland and the nuisance many have become in terms of loitering, public drunkenness, litter, graffiti, drug dealing and violence. They point to the many existing liquor stores, such as T and K Market which is less than 80 feet away from Nic Nak, and note that North Oakland and South Berkeley do not need more liquor stores. Those in support of Mr. Pannell's application praise him as a good businessman and former Alameda County Sheriff that runs a tidy store and will not tolerate any of the problems that typically plague other liquor stores and convenience markets.

Nevertheless, we have raised the question--who profits and who pays the cost of another liquor store in our community? Our conclusion is that if Mr. Pannell is granted a Major Variance to locate another liquor store within 1000 feet of an existing liquor store, he will reap the profit at the expense of the community. As you will see, the costs to the Community include our children.

In researching the link between crime and the concentration of liquor stores, we came across a really interesting study, Oakland on the rocks, Surveying Teens about Alcohol 'n Oakland. This report was published in 2005 by the Environmental Prevention in Communities (EPIC) and Alameda County Public Health Department.

The report concludes that Alcohol use among Oakland youth is a serious problem that requires creative environmental prevention interventions. Oakland youth are significantly influenced by media messages and over-concentration of alcohol outlets.There are major disparities by race, gender and age such that older boys are likely to drink more often and binge drink; and White and Hispanic youth drink more often than Black or Asian youth. The good news is that young people (87%) are aware of the consequences of drinking and driving and perceive it as dangerous. The difficulty is that underage drinking is still considered a rite of passage, a lesser evil than drugs and a social norm. The mixed messages young people receive about drinking are prolific. TV, billboards, peers, sports events, movies and possibly even parental behavior all contribute to mixed signals. More environmental prevention efforts are necessary to challenge the media and alcohol industry’s dominance over our youth’s sensory environment. Strategies include limiting access to alcohol, and providing creative options for healthy youth development.

Drinking Patterns

• About 1 in 4 Oakland youth has had a drink in the last 30 days.

• Boys drink more often than girls (22% vs. 13%).

• White & Hispanic youth have significantly higher rates of drinking than Black and Asian youth.

• Binge drinking is a major concern. The majority (42%) say it takes 5 or more drinks to get drunk.

• On average, 22% of Oakland youth started drinking alcohol before the age of 11. More than 50% had their first drink by the time they were 13.

Access to Alcohol

• Most youth in Oakland report getting their alcohol from a liquor store or supermarket (46%), friends or at party(33%), or parents/house (25%). Many report that relatives/siblings (20%) or older adults (18%) also play a major role in providing access to alcohol.

Reasons for drinking

• Most young people drink because of stress (59%), because it feels good (57%), or peer pressure (56%).

• Most say that being aware of the consequences (38%), accidents (38%) or the stories they have heard (33%)related to alcohol use would prevent them from drinking at all or too much.



Environmental influences

• More than 60% of youth on average have seen alcohol ads on TV or magazines and sporting events.

• Youth report most parents (62%) are not comfortable with their youth drinking anywhere.

Consequences of Drinking

• An astonishing 41% have gone for a ride in a car with a drunk driver. A significantly higher proportion of youth who have had a drink in the last 30 days have ridden in a car with a drunk driver (58%), compared to 34% of non-drinkers.

Recommendations

The youth at EPIC have put together these recommendations for local communities to take into consideration:

• Reduce young people’s access to alcohol through their parents and other adults by developing an educational media campaign on underage drinking directed at adults.

• Reduce young people’s access to alcohol through the retail environment by requiring strong enforcement of laws against selling alcohol to minors.

• Provide funding for grassroots youth organizations to take action on community alcohol problems. Support and expand youth programs that foster youth empowerment and education.

• Limit alcohol ads in the media, especially on radio stations that play popular music. Promote alcohol-free sponsorship at community events.

• Place store liquor ads away from the clear sight of children and youth. These ads should be at least 4 feet high, and out of windows and doors to improve visibility into and out of stores.

• Raise awareness among government and lawmakers that alcohol use is a serious problem. Make it a priority to educate adults and young people about the consequences of drinking.

What is interesting about the study is the conclusion that Oakland youth are significantly influenced by media messages and over-concentration of alcohol outlets. Additionally, an astonishing 46% of youth report getting their alcohol from a liquor store or supermarket. The recommendations include limiting access to alcohol and educating government and lawmakers about the serious problem of alcohol use among Oakland youth. Despite these type of studies, the City wants to add to the already overwhelming number of liquor stores in North Oakland and South Berkeley.

The City of Oakland Planning Staff had proposed approving the convenience store, but denying Mr. Pannell a Major Variance to peddle liquor in North Oakland. Then the Planning Commission, led by the now departed Commissioner Anne E. Mudge, requested the Planning Staff return with findings for approval of the alcohol sales, despite opposition by the East Lorin Neighborhood, the Shattuck Crime Prevention Council and nearby business owners. This was based on Mr. Pannell's portrayal of himself as a victim of the City bureaucracy, racism, and gentrification. While there is not a shred of evidence in the administrative record that the property qualifies for a Major Variance, the Planning Commission is poised to approved this project and add to the already overwhelming number of liquor stores in North Oakland and South Berkeley.

Mr. Pannell, we ask again, who pays the cost and who profits? As a self-proclaimed pillar of the community and a former Sheriff, you of all people should know the cost to our community and to our youth.

Nic Nak Liquors--A Community in Disagreement

Our recent blog about Mr. Pannell's efforts to get a Major Conditional Use Permit and Major Variance to sell liquor at 6400 Shattuck seems to have generated quite a few of comments. More than any other We Fight Blight Blog, this post, like Mr. Pannell's proposal, has garnered quite a bite of controversy. There are now 50 comments on the original post.

Mr. Pannell, for unknown reasons, requested the City continue his item until October 7, 2009. As you may recall, the City had placed this matter on the Planning Commission's Consent Calendar. However, the Planning Department has now advised us that based on several requests from the Community, the matter will no longer be placed on the Consent Calendar, but will require a full public hearing. This will allow the public to weigh in on the proposed conditions and findings of approval, both of which are inadequate. Several theories have been advanced as to why Mr. Pannell requested a continuance including the following: (1) Mr. Pannell is unwilling to accept some of the City's conditions for approval and is trying to lobby Planning Commissioners through ex-parte discussion to remove several of the conditions; and/or (2) Mr. Pannell is feeling the heat and wants to get some space between the media attention and his Planning Commission vote. There are two new Commissioners who have not indicated where they stand on this matter and their vote will be crucial as to whether Mr. Pannell is allowed to peddle liquor in North Oakland. What we do know is that Mr. Pannell has already begun to implement several of the conditions that are under consideration for his permit, including modifying the Nic Nak pole sign and installing security lighting. Whether these are being done with the approval of the City and appropriate building and demolition permits is unclear.

Between now and the next Planning Commission Meeting on October 7, We Fight Blight will be posting several follow-up articles that explore the over-saturation of problem liquor stores in North Oakland and deconstructs the unorthodox and highly unusual findings that "historical relevance equates to a unique or extraordinary physical condition" necessitating a Major Variance.

We do have to note that when rereading the comments to date, there seems to be consistent and repeated approach by those who support Mr. Pannell in his effort to sell liquor. These comments appear to be written by the same person or by the same small group of people posting as different members of the community. One of the ideas presented by these posters is that the author of this blog and those that support the denial of Mr. Pannell's liquor license are liars. That we are purposefully and collectively propagating lies about Mr. Pannell and his business--apparently, if you cannot provide a rational argument for your case, then smear the opposition as liars. While We Fight Blight does not support this liquor store because of the inextricable link in North Oakland between liquor stores, blight and crime, we have endeavored to report what is factually correct, what has been stated by Mr. Pannell and his supporters, and to make it clear where we are lending our opinion or our inferences.

Rather than foisting the term liar upon those who argue against Mr. Pannell's ability to peddle liquor, we would appreciate a more civilized dialogue that avoids personalizing this disagreement. We felt it was inappropriate for Mr. Pannell, at the public hearing, to suggest and state that those who opposed his permit were rascist, gentrifiers, and newcomers who were opposed to black-owned businesses. That is simply not true. Those opposed to Mr. Pannell's request to sell liquor are concerned about the over-saturation of liquor stores in North Oakland and South Berkeley, and the fact that, on the whole, liquor stores have been magnets for crime, litter, graffiti, loitering and drug dealing. This linkage has been abundantly and consistently documented in North Oakland and South Berkeley by the Oakland and Berkeley Police, the Shattuck Crime Prevention Council, neighborhood associations, the Berkeley Alcohol Policy Action Network and by those neighbors who suffer daily the consequences of liquor stores. Those opposing the liquor store do not oppose Mr. Pannell. They simply don't want another liquor store because of the quality of life issues associated with liquor stores. It has nothing to do with Mr. Pannell as a person and everything to do with the problems that liquor stores attract.

We had hoped Mr. Pannell and his supporters would argue the merits of his case based on the requirements of Oakland land use regulations and law. The laws apply to all equally. Unfortunately, he and his entourage chose to make this personal by framing this disagreement over a proposed land use in ways that are irrelevant to the legal question at hand which is whether his proposed use of 6400 Shattuck meet the findings and requirements of a Major Conditional Use Permit and Major Variance. Neither Mr. Pannell nor any of his supporters have provided any evidence whatsoever to support that his lot suffers from a unique or extraordinary physical or topographic constraint that merits an exception to existing land use requirements. Hence the City's legal gymnastics to create some justification to approve this use as the City Planning Commission directed. In all of the posts, his supporters continue to use irrelevant and extraneous arguments that frankly have no merit when it comes to judging the validity of his application or they attack the posters and this author as being liars.

Please argue the merits of the case, do not smear each other or personalize this issue. At the end of the day, we all will continue to live in North Oakland--at least most of us.

One of the issues brought up consistently is that somehow the denial of the Major Conditional Use Permit and Major Variance is going to be an economic hardship on Mr. Pannell. The fact is that unless Mr. Pannell has opened his personal and business accounting books to anyone, no one knows the financial repercussions a denial of liquor sales will have on Mr. Pannell. To our knowledge, Mr. Pannell has not provided a business plan or business pro-forma that shows he cannot operate a convenience store without liquor sales profitably. We do not know if Mr. Pannell has the capital to develop the site for another use acceptable to the community. What we do know is that Mr. Pannell owns a home in Clear Lake and a residence in Trestle Glen neighborhood of Oakland. We know that he owns the property at 6400 Shattuck and owns a liquor license. We know that he is a retired Alameda County Sheriff and it is likely that he has a pension from the County. We also know that he owns a recreational vehicle that is parked in front of Nic Nak. We also know that he claims his family once controlled 30% of all black-owned businesses in North Oakland. We have no idea what his current liabilities are and what his balance sheet shows. Frankly, the discussion about his financial situation is totally irrelevant.

According to the City of Oakland, A Variance is permission to depart from the development standards, or setbacks, of the zoning district. Variances provide the discretion and flexibility to resolve difficulties or hardships that may be inappropriate where special or extraordinary circumstances occur on the property. These circumstances do not mean economic hardship; rather, they refer to topographic or physical attributes of the site that do not allow for the development standards of the Zoning District to be applied.

Note: Economic hardship is not a criteria for approval or denial. It is irrelevant to the decision at hand. So all of the conjecture about his financial situation is irrelevant. Moreover, it is irrelevant as to whether Mr. Pannell can make some other viable use of his property. It is not the Community's responsibility to plan his site and ensure that he makes a profit. A financial investment does not guarantee a profit. Mr. Pannell has a fundamental responsibility to show why his project meets the requirements for a Major Condition Use Permit and Variance for liquor sales. We believe that he and his supporters have not met this burden. They have talked and talked about everything under the sun to create a distraction from the fundamental legal question. That is a good strategy when you have no legal foundation for your proposed land use. But it is not a basis to approve the project as the Planning Commission suggests. Their flawed reasoning will only invite legal scrutiny.

Speaking about distractions, Dr. Rockwell has posted that we are baring the facts based on fiction and that we are making judgements based on stereotypes and too much TV. Perhaps Mr. Rockwell is interested in speaking directly with the Shattuck Crime Prevention Council or the Berkeley Alcohol Policy Action Network or the Berkeley and Oakland Police as to the effect liquor stores have on public health and blight and crime. This is not TV or fiction. This is the reality of North Oakland and liquor stores.

Both the City of Oakland and the City of Berkeley have taken rather drastic action to declare some liquor stores a public nuisance and shut them down. We agree that not all liquor stores are nuisances. However, we are not interested in additional liquor stores in our Community because North Oakland and South Berkeley already have an abundance of liquor stores selling hard liquor and a good number of these are problem outlets. The cost of liquor stores goes well beyond the immediate impact to the nearest neighbors. The whole community suffers. There is a cost to taxpayers in increased police (if you can get it in Oakland) and emergency medical responses for alcohol related crimes and the devastating effects of alcoholism on families. Who should know this more than Mr. Pannell? We find it surprising that a former Alameda County Sheriff and a self-proclaimed pillar of the African-American community would not know or at least not seem to understand or care about the concerns neighborhs have about the nuisance activities caused by liquor stores and the public health damage to the African-American Community in Oakland caused, in part, by abundantly available liquor. Clearly, this is a situation where an individual is expecting that the economic return on his investment is more important than any cost he imposes on the Community.

So Mr. Pannell, who pays the cost and who reaps the profit?

We invite you, Mr. Pannell, to submit a guest post on We Fight Blight. We want to hear your story. We will give you an unedited platform to address our readers and the community. Just send your post to wefightblight@yahoo.com and we will post it for you.