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 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".

Approving Nic Nak Would Set Bad Precedent for Oakland

The Nic Nak appeal will be heard by the City Council on Tuesday, March 16, 6:30 pm Oakland City Council Chambers, City Hall, Agenda Item 9.1. The appeal has been filed by concerned residents with support from the East Lorin Neighborhood Association, the Shattuck Crime Prevention Council, and business leaders. The Planning Commission approved the Nic Nak despite the objections of of North Oakland residents and City Planning Staff and the City Attorney who had previously informed the Planning Commission the City could not make the necessary legal findings to approve the liquor sales. Should the City Council uphold the Planning Commission's approval for liquor sales at Nic Nak it would set a significant precedent allowing other non-conforming liquor sales that have gone out of business to re-open, contrary to the existing law and established public policy of the City. Approval of Nic Nak would turn the deemed approved program for liquor sales on its head.

The intent of the deemed approved program for non-conforming liquor sales is to allow such uses to continue under very limited circumstances but to eventually bring such uses into conformance with the current City regulations or eliminate them altogether as an undesirable land use. To remain a deemed approved use the requirements for liquor stores include not creating nuisances and/or not having a lapse in continuous alcohol beverage sales for more than 90 days. In Nic Nak's case it was shut down for more than five years, well beyond the 90 day requirement. The Nic Nak's owners, the Pannells, even surrendered their state Alcohol Beverage Control license during this time. The Nic Nak was originally considered a non-conforming use because it was not consistent with the revised City regulations governing alcohol beverage sales that preclude liquor stores from being located within 1,000 feet of each other. The Nic Nak was not alone in being a non-conforming liquor store. Such non-conforming liquor outlets are abundant throughout the City of Oakland. The City's fundamental goal has been to reduce the over-concentration of liquor stores in Oakland.

The City Council adopted new regulations restricting liquor stores because of the demonstrated nuisances created by such uses including public drunkeness, public urination/defecation, littering, increased violent crimes, and public disturbances. It has been shown through peer reviewed studies at the local, state, national and international level that the problems associated with liquor stores are amplified when there is a concentration of liquor stores in any particular area.

Because the Nic Nak ceased operations for greater than 90 days its deemed approved status was terminated by the City. In seeking to sell liquor again, the Nic Nak is considered a new land use and therefore is required to obtain a Major Variance and a Major Conditional Use Permit. The Major Variance is required because of the 1,000 foot rule--the Nic Nak is 80 feet from another liquor store. The Major Conditional Use Permit is required because liquor sales are considered to be a potentially problematic land use that requires site specific conditions to restrict such uses and ensure they are not a nuisance to the community.

The Planning Commission approved a Major Variance allowing liquor sales at Nic Nak using an unprecedented and legally suspect  rationale that "historical relevance" is equivalent to a physical site constraint. Never before in the history of the City has such a rationale been used to approve any variance for any land use. We cannot find any precendent for such rationale in any other local jurisdiction. In the City of Oakland a variance is warranted when there is a unique physical or topographic site constraint with the property--such as an irregular lot size, unusual topogrpahy, or significant natural feature such as a large rock outcroping that other properties do not suffer from--that prevents the property owner from meeting the intent of the Oakland Planning Code. An economic hardship is not a legal basis for approving a variance. The Planning Commission asserted that because Mr. Pannell had owned the Nic Nak property for many years it would essentially create a hardship for him to move his liquor sales to another location that was consistent with the Oakland Planning Code because it would severe ties to his historic customers. This was the case even though the Nic Nak had been closed for more than five years and the Pannells had already voluntarily severed his ties with his historic customers by closing the store and surrendering his liquor license.

A great percentage of non-conforming liquor stores with a deemed approved status have historical ties to their physical location. That is the very nature of most deemed approved, non-conforming liquor uses throughout Oakland. Allowing the Nic Nak to re-open contrary to the requirements of the Oakland Planning Code would open the door for any other liquor store in Oakland with a deemed approved status that ceases operations for greater than 90 days to re-open under the suspect rationale of "historical relevance". This would substantially weaken the City Coucnil intent of ensuring that non-conforming uses either operate consistent with the requirements of the deemed approved status program or are eliminated. The policy for eliminating non-conforming liquor stores that violate the deemed approve status requirements and the imposition of the 1,000 foot rule was approved by the City Council to address the over-concentration of liquor stores in Oakland. There are already 20 off-site liquor sales within 1 mile of the Nic Nak. Allowing the Nic Nak to re-open removes a significant tool from the City's toolbox for addressing liquor stores in Oakland.
Allowing the Nic Nak to re-open and sell liquor is a bad precedent for the City of Oakland. If you don't want your neighborhood suffer the same fate, please make sure you express your views at the City Council Hearing.

When: Tuesday March 16, 6:30 pm Oakland City Council Chambers, City Hall Agenda Item 9.1

Speakers can also sign up on-line by going to http://www.oaklandnet.com/ On the home page there is a heading for City Council with a choice of Meetings and Agendas. Click on that: to the left of that is a choice to "Speak at Council". Click on that and follow the simple instructions. Speakers cards for the March 16 meeting can be filled out after 12:00 pm on Friday March 12, right up to 5 pm March 16.

Nic Nak Liquors Coming to City Council March 16

The City Council Rules Committee has set March 16, 2010 for the Nic Nak appeal. This appeal is critical in determining whether the City Council will enforce its existing regulations on limiting the proliferation of liquor stores in Oakland by denying a conditional use permit and variance for alcohol beverage sales at 6400 Shattuck Avenue or whether it succumbs to the continued pressure and threats from the property owner who believes it unfair to apply the existing regulations to his new alcohol beverage sales. The lengthy time to agendize the appeal was, in part, related to the detailed 37 page appeal from nearby residents who oppose the Liquor Store. The Planning Staff are required to address each and every issue raised in the appeal when the matter comes before the City Council.

In fall of 2009, the City Planning Commission granted a conditional use permit and a major variance to Ashrious Pannell to sell liquor at the Nic Nak using a unique and unprecedented rationale that "historical relevance" is equivalent to a unique physical constraint. This rationale, which has never before been used in the history of Oakland to approve any variance, has no known precedence in modern planning theory.

Although the proponents of the liquor store, which include Ashrious Pannell, the Black Chamber of Commerce, the controversial Uhuru Group, and local business activist Geoffrey Peete, have raised numerous issues in support of the liquor store including charges of neighborhood gentrification and racism, and unfairness by the City Planning Staff, none have been able to articulate a rational policy or legislative basis as to why liquor sales should be approved under the existing City regulations. In fact, the City Planning Staff and City Attorney originally advised the Planning Commission the City could not make the legally required findings to approve liquor sales at 6400 Shattuck Avenue before the Planning Commission directed staff to make an 180 degree turn and prepare findings for approval. It is easy to understand why the Planning Staff have had such a hard time with this project, as adopted City policy is fairly clear on limiting new liquor sales.

The City of Oakland enacted a deemed approved status to allow pre-existing, but non-conforming liquor stores to continue to operate. The deemed approved requirements specify the owner/operator must not have a lapse in continuous alcohol beverage sales for greater than 90 days. The Nic Nak Liquor Store, by all accounts, was shut down for at least five years by the Pannells. Mr. Pannell ceased selling liquor and even surrendered his State Alcohol Beverage license. When this occured, the City of Oakland properly terminated the Nic Nak's deemed approved status as a non-conforming use due to the lapse in alcohol beverage sales for greater than 90 days. Although given an opportunity to appeal the decision to terminate the Nic Nak's deemed approved status, Mr. Pannell failed to appeal the termination. He was directed by the City Planning Staff to file a major conditional use permit and a major variance should he wish to re-open the Nic Nak and sell liquor.

Re-opening the Nic Nak and selling alcohol beverage sales at 6400 Shattuck Avenue requires a major conditional use permit because sales of alcohol beverages at the site is considered to be new alcohol beverage sales under the Oakland Planning Code. A major variance is required because Nic Nak is located within 1000 feet of an existing liquor store. The Oakland Planning Code prohibits alcohol beverage sales from opening up within 1000 feet of an existing alcohol beverage sales outlet.

Under the Oakland Planning Code, a major variance is restricted to unusual or extraordinary physical constraints that prevent an applicant from meeting the intended purpose of the zoning/planning code. According to the City, economic hardship is not a basis for a variance. In this case, Mr. Pannell's property does not exhibit any unusual physical constraints--it is a flat, corner lot, with a standard lot size as compared to nearby commercial properties. There is nothing unusual or unique in terms of its physical layout as it relates to other similarly zoned properties.

In approving the alcohol beverage sales, the Planning Commission capitulated to pressures from the property owner, including threats of a lawsuit, and made an unprecedented finding to approve the liquor sales--"historical relevance is equivalent to a physical constraint". Because Mr. Panell was a self-proclaimed pillar of the community and allegedly had long-term ties to the community by operating the Nic Nak Liquor Store, the Planning Commission felt it would be unfair to deny him new liquor sales because it would be difficult for him to severe ties to historical customers and relocate his sales to a site that did conform to the existing planning regulations.

According to Scott Miller, Oakland Zoning Manager, this type of rationale has never before been used in the City of Oakland to approve a variance and he is not aware of this theory, which apparently was borrowed from the National Historic Preservation Act, being used in other jurisdictions or having support in case law. Neighbors opposing the liquor sales disputed Mr. Pannell's historic ties to the community noting that he does not live in North Oakland, had not operated the Nic Nak for at least five years thereby severing ties to his customer base, and has not participated in community organizations such as Neighborhood Watch, the Shattuck Crime Prevention Council, the East Lorin Neighborhood Association or any other ad-hoc neighborhood group.

The pupose of Oakland's deemed approved ordinance for alcohol beverage sales is to ensure they do not create a nuisance and importantly to eliminate non-conforming liquor sales or bring them into conformance with the existing regulations. The City Council adopted certain regulations governing the siting of new alcohol beverage sales to prevent over-concentration of liquor stores. This was largely due to the recognized adverse effects of liquor stores on Oakland communities. North Oakland/South Berkeley already has 20 existing alcohol beverage sales within 1 mile of Nic Nak. Several City Councilmembers have already gone through difficult struggles within their own districts to either shut down or severely curtail nuisance liquor sales. Given the existing adopted public policy of the City Council on liquor stores, and the struggles of several City Councilmembers with existing liquor sales, one has to wonder why they would even consider upholding the City Planning Commission's faulty decision to approve liquor sales at 6400 Shattuck Avenue. Doing so would severely undermine the City's progress to date in getting a handle on this public health crisis.

The Planning Commission's approval of the Nic Nak was replete with unsubstantiated assertions and conclusions that were not supported by the administrative record and failed to take into account the entirety of public comments including the submission of a plethora of peer-reviewed studies conducted locally, nationally and internationally that show an over-concentration of liquor sales lead to higher crime rates, and an increase in public health and nuisance issues for surrounding neighborhoods. Perhaps the City Council will be more thorough in their analysis and consideration of the Nic Nak than the Planning Commission and will look to reaffirm their existing policies to limit new liquor stores, rather than succumbing to threats from a local business owner that is out of sync with the community.