Death at the Liquor Store

Tragically, another life was snuffed out on the streets of South Berkeley, just across the Oakland border. Two days after the Oakland City Council denied the former Nic Nak Liquors the ability to sell liquor at 6400 Shattuck Avenue, Kenneth Jerome Tims Jr. was gunned down behind the Stanford Market and Liquor Store at 62nd and King streets. The killing happened only a block from where two other people were shot and critically wounded on May 20.

In opposing the Nic Nak Liquors, neighbors and residents, presented concerns about the attendant crime associated with 19 liquor stores within a mile radius of 6400 Shattuck Avenue, including the Stanford Liquor Store which is one-half a mile from 6400 Shattuck Avenue. South Berkeley gang members are often seen loitering around and behind the liquor store and inebriated patrons often cross the street into Oakland to drink at the bus stop and benches at a small pocket park along Stanford Avenue.

One review on yelp suggests, Don't mind the dealers and hobos, it's just South Berkeley, after all. You do know to hit the ground if you ever hear gunshots, right? Good. You'll be just fine.

A memorial was set up where Tims Jr. was found mourning his death. Tragically, the memorial includes a significant number of empty Hennessey and Cuervo Tequila bottles. Hennessey has apparently gained a reputation among rappers, gangsters and wanna be gangsters as a drink of status.

An abundance of local, national and international studies show that concentrations of liquor outlets result in higher crime rates, public nuisance issues and community health problems for nearby neighborhoods. The City of Oakland has policies limiting liquor outlets, while the City of Berkeley has worked to limit or shut down nuisance liquor stores in South Berkeley. However, the process to shut down nuisance liquor stores in either city is arduous and lengthy. All the while, neighborhoods suffer the spillover effects greatly diminishing their quality of life and endangering their families.

Despite the existing policies limiting liquor stores and the abundance of peer reviewed studies showing the detrimental effects of concentrations of liquor outlets, Oakland City Councilmembers Rebecca Kaplan, Larry Reid and Desley Brooks all supported more liquor sales in North Oakland by voting to approve the Nic Nak using an unprecendented rationale of "historical relevance" fabricated by Planning Commissioner's Anne E. Mudge and Doug Boxer.  The rationale was rejected by the City Attorney and a majority of the City Council and Nic Nak was denied liquor sales.

Nic Nak to Return to City Council May 18th

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

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

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

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

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

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

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

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

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

Nic Nak Hearing Delayed Until May

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

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.

Nic Nak Liquors Not Yet Agendized by City Council

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

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

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.