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 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--A Case for Over-Concentration of Liquor Outlets in North Oakland/South Berkeley

Nic Nak Liquors at 6400 Shattuck Avenue is attempting to obtain a Major Conditional Use Permit and a Major Variance from the Oakland Planning Commission for liquor sales. Approval of this land use activity would create a major and significant precedent in the ability for liquor stores that have lost their Deemed Approved Status as a non-conforming legal use to re-open in Oakland.

Because the property is located 80 feet away from an existing liquor store, T and K Market, and continuous liquor sales at Nic Nak ceased for more than 90 days, the City of Oakland requires Nic Nak to obtain a Major Variance. A Major Variance relates to a unique or extraordinary physical or topographic constraint which Nic Nak does not have. There is nothing in the Administrative Record that currently supports approval of another liquor store in North Oakland. Not even if former Commissioner Anne E. Mudge and Commissioner Boxer fabricate out of thin air the notion that "historic relevance" is equivalent to a unique physical constraint does this mean the courts will validate their misapplication and misinterpretation of the City requirements for a Variance. We note this because if the City of Oakland approves this land use, contrary to its own adopted public policy and regulations, it will likely receive judicial scrutiny according to some neighbors.

North Oakland is already over saturated with liquor stores, many of which create significant nuisances for North Oakland neighborhoods. The City Staff Report, dated August 5, 2009, recommended denying Mr. Pannell's proposal to peddle liquor and stated that: This proposed location [Nic Nak] is within 80 feet of a market across the street selling beer and wine. A Variance has been requested to allow this Alcoholic Beverage Sales Commercial Activity closer than one thousand (1,000) feet to any other Alcoholic Beverage Sales Activity. This is an adverse precedent for other such uses. This store will not provide an unmet Alcoholic Beverage Sales need for a population in the immediate Oakland Community, since beer and wine can be purchased across Alcatraz Avenue and spirit liquors can be purchased at several locations within a 5-minute drive. The store will not serve as a catalyst for other desirable businesses in the area, such as retail or restaurant uses; rather, the store is planned to operate like liquor stores from 40 years ago.

The August 5, 2009 Staff Report also noted that: the Planning Code Section 17.09.040 defines: "Alcoholic beverage licenses over concentrated areas" as "a police beat with crime rates that exceed the City median by twenty percent or more or a census tract in which the per capita number of on-sale or off-sale retail Alcoholic Beverage Sales licenses exceeds the Alameda County median" The applicant's store is in Police Beat 11-X. In 2008, there were 1,030 crimes in 11-X. the City's "over-concentrated areas "threshold was 1,320. Beat 11-X is thus approximately 30% below this threshold and is thus not over-concentrated by that standard.

In Census Tract 4005, in 2008 there were three alcoholic beverage licenses other than (exempt) full-service restaurants; the applicant's store would make 4, not exceeding the standard threshold of 6. Therefore, this site does not meet the definition of over-concentrated area defined in Section 17.09.040.

We submit that the definition of over-concentrated areas using a threshold that exceeds the median crime rate by 20% or more and/or a census tract is fundamentally defective in capturing the true blight and nuisance activities associated with liquor stores. Using crime rates that exceed the City median by 20% or more is a blunt metric that does not accurately target or identify the most specific crimes associated with liquor stores in a particular community such as North Oakland--loitering, littering, vandalism, public drunkenness, driving while under the influence, etc. It is blunt because it includes all crimes and then establishes that over-concentration is a threshold of 20% or more of the City median. The City of Oakland, by most accepted measures, has some of the highest crime rates in the entire United States. These high crime rates are driven by some of the most blighted, poverty-stricken, depressed, violent neighborhoods in the country. To use a threshold that is 20% or more of the median crime rate of one of the worst crime-plagued cities in the country as a metric for success results in the unbearable tolerance of an incredibly high number of nuisance crimes associated with liquor stores within a police beat as compared to the vast majority of cities of a comparable size in the United States. The fact that Beat 11-X is 30% below the threshold for crime in Oakland is actually a testament to the years of hard, dedicated and focused work of the Shattuck Crime Prevention Council, neighborhood associations, businesses and the Oakland Police. Crime that is 30% less than the Oakland median crime rate would not be tolerated in the vast majority of communities in the United States. To penalize this hard work with the addition of yet another liquor store is contrary to the public interest, the stated public policy of the City, and the health and welfare of the residents of North Oakland particularly when considering the body of research and evidence that establishes an incontrovertible link between the density of alcohol outlets, crime and adverse public health consequences.

The analysis by the Oakland Planning Staff in their report and findings for approval are troubling and highly deficient in that it did not consider or evaluate any liquor stores in North Oakland and South Berkeley, except Nic Nak, for their cumulative contribution to crime, nuisance activities and detriments to quality of life and public health. No assessment was done to map out and show the location of such liquor stores in North Oakland and South Berkeley. Hence no accurate baseline was defined as to the adverse effects liquor outlets are currently having in North Oakland. It is critical, since Nic Nak liquors is located less than 1/4 a mile away from South Berkeley, that liquor stores in South Berkeley also be considered. The absence of any reasonable assessment of the cumulative effects of existing liquor stores fails to properly place the approval of Nic Nak liquors in an appropriate context for decision makers and essentially encourages them to disregard the over-concentration of liquor outlets in their decision tree.

The use of a census tract, while a relatively standardized and efficient unit for comparing and measuring changes from one small geographic area to another, does not adequately assess the over-concentration of liquor stores and, in fact, underestimates the cumulative adverse effects these stores are having on geographically distinct neighborhoods that are larger than a census tract in North Oakland and South Berkeley. The use of a census tract as a geographic demarcation for the assessment of effects on a neighborhood or community is artificial and politically expedient with no real scientific basis or nexus to assess the true public health effects and increases in crime related to the availability of alcohol. In the case of North Oakland, census tract 4005 is also artificially constrained by city boundaries, effectively negating a true assessment of the cumulative effects and over-concentration of liquor stores in the vicinity of the proposed Nic Nak Liquor Store which spans the Oakland Berkeley City boundaries. This is true particularly in our highly mobile community where movement of people and alcohol is facilitated by an abundance of public transportation including AC Transit, BART, personal autos, bicycles and other conveyance methods. This allows the nuisance effects of alcohol outlets to be dispersed over a relatively wide area rather quickly such that the use of a census tract to assess over-concentration of alcohol outlets would fail to adequately capture the true societal costs of increased crime and public health issues. While liquor stores are the epicenter and causation of the problem, the problems and effects are dispersed throughout a community.

There is a wide and growing body of evidence nationally and internationally that shows an incontrovertible link between a concentration of liquor stores, crime and public health concerns. One study in Richmond California, Liquor Stores and Community Health, prepared by the Pacific Institute, notes that: A high density of liquor stores can contribute to a variety of health and safety problems. Studies show that neighborhoods with higher concentrations of liquor stores also have higher rates of alcohol-related hospitalizations, drunk driving accidents, and pedestrian injuries. A recent study across all California zip codes found that neighborhoods with a higher density of liquor stores had higher numbers of childhood accidents, assaults, and child abuse injuries. Liquor stores become places where social controls are weaker, increasing the likelihood of criminal and nuisance activities. A high density of liquor stores is linked to higher levels of crime and violence. A study conducted in Los Angeles found that each new liquor store in a neighborhood resulted in 3.4 more assaults per year. In New Jersey, researchers found that the number of liquor stores was the single most important environmental predictor of why some neighborhoods have higher crime rates than others—a stronger predictor than unemployment rate or median household income.

The Pacific Institutes Study also noted that: A high density of liquor stores also contributes to economic and social disintegration. Similar to power plants and refineries, alcohol outlets represent a form of locally unwanted land use that conflicts with desirable land uses such as schools, parks, and residences. The over-concentration of liquor stores increases the perceived lack of safety and limits walkability in the community. Moreover, concentrations of liquor stores in a neighborhood can constrain economic opportunities for current and new businesses and therefore are both a symptom and accelerator of economic decline.

Recognizing the importance of educating decision makers, the Hermosa Beach Neighborhood Association has compiled a significant list of research on alcohol outlet densities at http://www.hbneighborhood.org/My%20Web/1%20HB%20CrimeNews%202004%202.htm.

These various national and international peer reviewed studies collated by the Hermosa Beach Neighborhood Association conclude or provide significant evidence that: (1) alcohol availability is related to violent assaults at the local level; (2) alcohol outlet density was the single most important environmental factor explaining why violent crime rates are higher in certain parts of the city than in others; (3) neighborhoods with higher alcohol outlet density have higher rates of alcohol-related problems than a neighborhood's racial or ethnic makeup; (4) localities with more alcohol sales had more assaults per capita; (5) the more off-site alcohol outlets a neighborhood has, the more likely it is to have more homicides; (6) three northern California cities with a higher density of alcohol outlets had significantly higher levels of crime among Mexican American youth; (7) there was more youth violence in neighborhoods that had more off-site alcohol outlets than those that did not; (8) areas with more alcohol outlets experience more violent crime; and (9) blocks having more bars had higher crime rates.

None of this body of incontrovertible evidence was either reviewed, evaluated or consulted by the Planning Staff or the Planning Commission in preparing its findings to approve a Major Variance to allow yet another liquor store in North Oakland even though it is readily available on the internet. The approval for the Nic Nak is moving forward despite significant objections from the Shattuck Crime Prevention Council, the East Lorin Neighborhood Association, and local business owners that an additional liquor store in an already over-concentrated North Oakland community will increase alcohol related crimes and public nuisances. In dismissing community concerns, one Commissioner, Sandra Galvez, even went so far as to characterize the predominantly white residents who were objecting to additional liquor stores as fostering" institutionalized racism." The body of peer-reviewed scientific evidence and the actual experience of the Shattuck Crime Prevention Council, the East Lorin Neighborhood Association and local business owners in North Oakland is diametrically opposed to the personal beliefs and political leanings of those Planning Commissioners who are loathe to deny the Nic Nak's application for a Major Variance for fear of opposing a black-owned business and looking very un PC, no matter how detrimental it is to the community.

Since former Commissioner Mudge and existing Commissioner Doug Boxer led the charge for approving another liquor store in North Oakland, and seem to think more liquor stores are a good and positive thing to maintain and retain historic associations including neighborhood, social and leadership activities , and because Commissioner Galvez believes the opposition to another liquor store in North Oakland somehow is the result of "institutionalized racism", we decided to show them and others just how many liquor stores and other off-sales alcohol outlets there are within an approximately 1 mile radius of the proposed Nic Nak Liquor Store. There are a total of 18 existing off-sale liquor outlets within an approximately 1 mile radius of Nic Nak . If Nic Nak is granted a Major Variance to peddle liquor it will make 19.

We chose an approximately 1 mile geographic limitation for our assessment as it takes only 15-20 minutes to walk one mile, 5-7 minutes to bicycle one mile and 1-2 minutes to drive one mile (not counting wait times at lights). A one mile geographic boundary gives a reasonably convenient radius for all modes of travel and provides a more comprehensive assessment of over-concentration than does a much smaller census tract.

This assessment does not include the many on-sales liquor outlets such as the Starry Plough, the White Horse Bar and Inn, Valparaiso, Dorsey's Lockers and Nick's Lounge where disturbances have included everything from people being drunk in public, to drunken bar fights, shootings, stabbings and even murders (Dorsey's Lounge and Nick's Lounge). This assesment also does not include the liquor stores that have already been shut down as public nuisances.

T and K Market
6342 Shattuck Avenue, Oakland
Approximately 0.04 miles from Nic Nak.
Sells beer, wine, junk food and processed foods.
Documented problems include: Loitering, drug sales, littering, and graffiti. Frequented by North Oakland gang members from nearby Oakland Housing Authority complex.

Alcatel

6363 Telegraph Avenue, Oakland

Approximately 0.30 miles from Nic Nak.

Sells beer, wine, hard liquor, junk food and processed foods.

Documented problems include: None.

Aiban Market
701 60th Street, Oakland
Approximately 0.45 miles from Nic Nak.
Sells beer, wine, junk food and processed foods.
Documented problems include: According to the City of Oakland it is considered a bad liquor store with several minor violations or at least one serious violation. Loitering, drug dealing, and public drinking. Three confirmed sales to underage minors documented by ABC.

Stanford Market
3400 Adeline Avenue, Berkeley
Approximately 0.47 miles from Nic Nak.
Sells beer, wine, junk food and processed foods.
Documented problems include: Loitering, public drunkeness, and littering. Frequented by south Berkeley gang members.

M and H Market and Liquor
Adeline Avenue, Berkeley
Approximately 0.47 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: Loitering, public drunkeness, littering, graffiti. Frequented by South Berkeley gang members.

Uptown Market and Liquors
5635 Shattuck Avenue, Oakland
Approximately 0.55 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: Loitering, public drunkennes, drug dealing, boom cars, unauthorized hip hop promotion, littering, and graffiti. Frequented by North Oakland gang members.

Alcatraz Market
1601 Alcatraz Avenue, Berkeley
Approximately 0.55 miles from Nic Nak.
Sells beer, wine, junk food and processed foods.
Documented problems include: Loitering, public drunkenness, drug dealing, littering, and graffiti. Frequented by South Berkeley gang members.

Williams Liquors
5830 Telegraph Avenue, Oakland
Approximately 0.57 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: Loitering, public drunkenness, littering, and graffiti. Frequented by North Oakland gang members from nearby Oakland Housing Authority complex. Drive by shootings at corner of 58th and Telegraph.

Berkeley Bowl
6363 Shattuck Avenue, Berkeley
Approximately 0.62 miles from Nic Nak.
Sells beer, wine, and full service grocery items.
Documented problems include: Aggressive panhandling.

Black and White Liquors
3027 Adeline Avenue, Berkeley
Approximately 0.72 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: Averted declaration of public nuisance by City of Berkeley Zoning Board 5-4. Public drunkenness, public urination, defecation and vomitting on nearby residential streets, litter, and graffiti. Site of violent crimes including recent day-time pistol whipping and armed robbery of a woman. Currently under severe operational restrictions.

M and B Liquors and Groceries
6310 Market Street, Berkeley
Approximately 0.73 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: Loitering, littering, graffiti, and public drunkeness.

ASA Liquor Store
5909 Market Street, Oakland
Approximately 0.74 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: According to the City of Oakland it is considered a bad liquor store with several minor violations or at least one serious violation. Loitering, littering, graffiti, and public drunkenness.

Whole Foods
3000 Telegraph Avenue, Berkeley
Approximately 0.79 miles from Nic Nak.
Sells beer, wine, and full service grocery items.
Documented problems include: Attempted alcohol purchases by underage UC Berkeley students, and aggressive panhandling.

Safeway
6310 College Avenue, Oakland
Approximately 0.80 miles from Nic Nak.
Sells beer, wine, hard liquor, and full service grocery items.
Documented problems include: Attempted alcohol purchases by underage UC Berkeley students, and aggressive panhandling.

King's Market
5442 Martin Luther King Jr. Way, Oakland
Approximately 1.00 miles from Nic Nak.
Sells beer, wine, junk food and processed foods.
Documented problems include: Graffiti, litter, and minor loitering.

Adeline Liquors and Market
5702 Adeline Avenue, Oakland
Approximately 1.04 miles from Nic Nak.
Sells beer, wine, hard liquor, junk food and processed foods.
Documented problems include: According to the City of Oakland it is considered a bad liquor store with several minor violations or at least one serious violation. Loiteiring, public drunkeness, littering, and graffiti.

East Bay Liquors
5350 Martin Luther King Jr. Way, Oakland
Approximately 1.06 miles from Nic Nak.
Sells beer, wine, hard liquor, cigarrettes, junk food and processed foods.
Documented problems include: According to the Cit of Oakland it is considered a bad liquor store with several minor violations or at least one serious violation. Public drunkenness, loitering, drug sales, littering, and graffiti. Involved in several shootings including a killing by an Oakland Police Officer.

Andronicos
2655 Telegraph Avenue, Berkeley
Approximately 1.18 miles from Nic Nak.
Sells beer, wine, hard liquor, and full service grocery items.
Documented problems include: Attempted alcohol purchases by underage UC Berkeley students.

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.