statement final
DESCRIPTION
ProProtestant's statement as finally submitted to ABC.TRANSCRIPT
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BEFORE THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROLOF THE STATE OF CALIFORNIA
IN THE MATTER OF THE PROTEST OF:
Nicholas Arnett and 0 others,
AGAINST THE ISSUANCE OF AN OFF-SALE GENERAL LICENSE TO:
Charanjit KaurTarranjig Singh SaggiLafayette Food & Liquor1670 Lafayette StreetSanta Clara, CA 95050-3915
Under the Alcoholic Beverage Control Act.
))))))))))))))))))
FILE: 21 – 466915REG: 09071307
PROTESTANT’S STATEMENT
Dated this August 25, 2009________________________Nicholas Arnett
This is the statement of protestant Nicholas Arnett in argument
that the Department of Alcoholic Beverage Control (the
Department)’s issuance of a license in this matter would be
contrary to the public welfare and morals, due to an undue
concentration of off-sale licenses, the presence of residences
within 100 feet, the presence of nearby public pedestrian
facilities and parks frequently used by children and others,
creation and/or aggravation of law enforcement problems including
public consumption of alcohol, public drunkenness, drug use,
other disturbances of the public peace, gang activity, loitering,
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graffiti, public vomiting, urination and defecation, littering
and trash; the applicant’s breaches of city ordinances regarding
parking and signage at the premises; violations of state motor
vehicle code by applicants’ vendors; the applicant’s and the
Department’s failures to establish that operation of the business
will not interfere with the neighbors’ quiet enjoyment of their
property; and actual interference with the neighbors’ quiet
enjoyment of their property while the applicant has operated with
a temporary license.
POINT ONE: UNDUE CONCENTRATION OF LICENSES/HIGH CRIME AREA
The existence of an undue concentration of off-sale licenses
in the relevant census tract is not in dispute, but the
Department inaccurately and incompletely documented the
nature and degree of the undue concentration and related
issues, including the crime rate, and therefore any reason
from the evidence to make a decision regarding licensing
must be arbitrary. The Department’s ABC-220 Report on
Application for License No. 21-466915, dated May 15, 2009
(the Report), and the Premises Report included therein,
contains numerous substantial and material errors and
omissions, prejudicial in favor of the applicant.
In response to B&P §23958.4(a)(1), which sets forth
licensing criteria based on crime statistics, the Premises
Report, Page 2, states, “Santa Clara Police Department does
not maintain statistical crime data for this jurisdiction.”
In fact, the Santa Clara Police Department (SCPD), like
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every agency with police powers in the State of California,
including the Department itself, maintains statistical crime
data as required by P.C. §13020-13023 and is able to
generate crime reports based on proximity to any address in
the City. The Department’s claim that these statistics do
not exist is especially disturbing in light of the fact that
SCPD Sgt. Kiet Nguyen provided the Department a neighborhood
crime report dated April 23, 2009 (Protestant’s Exhibit A),
three weeks prior to the Report’s completion date. This
critical document, which was sent to the Department again on
July 1, 2009, was not produced during discovery. Even
earlier, the applicant’s consultant, Richard Cole, provided
the Department with SCPD crime data in a March 20, 2009
letter, attached to the Department’s Premises Report as
Exhibit E, two months before the Report’s completion date.
The Exhibit includes an image from the web site
CrimeReports.com, which reads, “Data provided by Santa Clara
City Police Department...” This shows that the Department
and the applicant were not only aware that SCPD maintains
such data, but were also aware of the nature of the data and
therefore deliberately or negligently suppressed it.
Omission of the crime data was prejudicial in favor of the
applicant. As the protestant will describe below, the data
provided by this very source is quite unfavorable to the
applicant, showing a marked increase in alcohol-related
crime reports and disturbances since alcohol sales began.
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The Premises Report, Page 2, disingenuously states that “No
objections or calls of concern by the police department were
received as a result of this inquiry.” The Department
appears to have made an unwarranted assumption that because
SCPD did not file a protest, the police are unconcerned. In
truth, the applicant and his consultant became aware of SCPD
interest and concern about this license, if he was not
already, when two SCPD Nuisance Supression Unit officers met
with the applicant, his consultant (who called the meeting),
the protestant and Michael Hyams, a co-captain of the local
Neighborhood Watch on October 23, 2008 at the coffee shop
adjacent to the applicant’s business, to attempt to dissuade
the protestant from carrying his protest forward.
The Premises Report, Page 2, states that “A Letter of Public
Convenience or Necessity is required from the Governing Body
pursuant to Section 23958.4 B&P.” Protestant agrees that
such a letter is required. The Premises Report continues,
“The Director of Planning and Inspection (governing body for
Santa Clara) submitted a letter of Public Convenience and
Necessity (Exhibit B) in support of issuance of the applied-
for license.”
However, the letter attached as Exhibit B is titled “Zoning
Verification for Public Convenience and Necessity” and is
self-described as in support of a finding that Public
Convenience and Necessity,” not as an actual finding. The
letter describes permitted uses under zoning ordinances and
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notes that there are no complaints regarding alcoholic
beverage services on the site, an irrelevant observation
given that site has never been authorized for liquor sales,
as the Premises Report states. The letter also says that
the city has not determined “any further over concentration
of liquor license which may exist in the area” (emphasis
added). The letter is unclear as to whether or not the
“City requirements” that satisfied refers to anything other
than the fact that the site is zoned appropriately. Nowhere
does the letter state that the city’s governing body has
made a finding that issuance of this license would serve the
public convenience or necessity. This matter has not come
before the governing body, no public hearings have been held
and no action has been taken. Therefore, a reasonable
person would conclude that this letter is nothing more than,
as its subject says, a verification of appropriate zoning
for the applicant’s site.
Although the Premises Report identifies the governing body
of the City of Santa Clara as the Director of Planning and
Inspection, it actually is the Santa Clara City Council,
which has neither issued a Letter of Public Convenience or
Necessity in this matter nor authorized any subordinate
officer or body to do so.
Under B&P §23958.4(b)(2), the governing body, in this case
the City Council, may designate a subordinate officer or
body with the authority to issue such a letter. According
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to the Santa Clara City Clerk’s office, the Santa Clara City
Council has not designated such authority to the Director of
Planning and Inspection or to any other officer or body.
Therefore the letter presented as Premises Report Exhibit A
does not satisfy the requirement of B&P §23958.4. Although
this may reflect a failure of the Department to solicit the
letter from the proper Santa Clara authority, The
Department’s failure does not relieve the applicant of the
burden expressed in §23958.4(b)(2), “If the local governing
body, or its designated subordinate officer or body, does
not make a determination within the 90-day period, then the
department may issue a license if the applicant shows the
department that public convenience or necessity would be
served by the issuance” (emphasis added).
Other California cities have designated this authority by
ordinance. Examples:
- The City of Davis designates this authority to the
Planning Commission in Municipal Code §40.40.020.
- The City of Sacramento designates this authority to
the Police Chief in City Code §5.08.070.
- The City of Hayward designates this authority to the
Planning Director in City Code §10-1.2735(b)(13).
In other California cities, where the authority has not been
designated, requests for a Letter of Public Convenience or
Necessity are authorized by the City Council.
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The applicant, who employed a highly experienced alcoholic
beverage licensing consultant, and the Department, which a
reasonable person may expect to have an expert understanding
of the relevant California powers of city government and
regulations, have had more than a year to detect and correct
this error or oversight and have failed to do so.
The Investigator’s Findings in the Premises Report, page 10,
advocates issuing a license by describing the census tract
as “marginally over concentrated,” when in fact, according
the same Report, page 2, the area has twice as many off sale
licenses as allowed. Describing an undue concentration that
is double the county-wide concentration as ‘marginal’ is far
outside of any reasonable definition of the word. Although
the Department further claims that “the overall license
concentration stays the same with the issue of this
license,” it offers no evidence in support, rendering the
claim arbitrary and prejudicial in favor of the applicant.
POINT TWO: RESIDENCES WITHIN 100 FEET
The fact of the existence of residences within 100 feet, as
defined in B&P §61.4 is not in dispute. However, the
protestant disputes the Department’s accounting of the
number of such residences, finding that there are 53, rather
than the nine (9) named in the Report. Rule 61.4’s
“Proximity to Residences” defines a specific method of
measurement: “Distances provided for in this rule shall be
measured by air line from the closest edge of any
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residential structure to the closest edge of the premises or
the closest edge of the parking lot or parking area, as
defined herein above, whichever distance is shorter.” As
shown in Protestant’s Exhibit C-1, the applicant’s premises
is located in a mixed-use area consisting of primarily
single-family homes to the west and northwest, residential
condominiums facing the premises directly across the street
to the northeast and mixed commercial and residential to the
east. As shown in Protestant’s Exhibits C-2 and C-3, fifty-
three (53) residences (43 condominiums and 10 single-family
homes) are located within 100 feet of the premises when
measured as defined in B&P §61.4. Protestant’s Exhibit C-2
confirms the Google Maps Distance Measurement Tool’s
accurate and precise measurement of the distances by
comparing the width of the applicant’s premises, shown as 25
feet in the Department’s Report, form ABC-257, Licensed
Premises Diagram (Retail), to the distances to the
surrounding structures. Each of the 53 residences is within
four times the width of the applicant’s structure, or 100
feet. Exhibit C-3 is additional confirmation that the 43
residences at 1777 Lafayette are less than 100 feet away
from the northernmost parking space counted by the
Department as available to the applicant’s patrons.
The Premises Report states: “The following Rule 61.4
residents received written notification of this license
application by the investigating ABC representative with
instructions for filing objections” and lists only nine (9)
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residences. Neither the Department nor the applicant offers
any evidence that the remaining 44 residences received any
notification as required by B&P §23985.5: “Notwithstanding
any other provision of this article, in any instance
affecting the issuance of any retail license at a premises
which is not currently licensed or for a different retail
license, the department shall require that the applicant
mail notification of the application to every resident of
real property within a 500-foot radius of the premises for
which the license is to be issued. The applicant shall
submit proof of compliance to the department prior to
license approval.”
The Department’s failure to count some of the 61.4 residents
and the lack of notification are less problematic than the
reason behind them – the Department’s failures to recognize
the existence of neighbors within the requisite distance and
resulting inability for the Department to have performed a
thorough investigation, as required by B&P §23958, nor to
have carried out its duties in the “strict, honest,
impartial, and uniform administration and enforcement of the
liquor laws” required by B&P 23049, and the applicant’s
failure to satisfy the requirement of determining that
operation of its business will not interfere with the
neighbors’ quiet enjoyment of their properties. As a matter
of principle, if you don’t know that your neighbors exist,
it is impossible to know if your activities interfere with
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their quiet enjoyment and you certainly cannot know what
conditions must be imposed to ensure non-interference.
In the case of Graham (1998) AB-6936, the Alcohol Beverage
Control Appeals Board (the Board) cited many cases
concerning quiet enjoyment and its supreme importance to the
extent “that rule 61.4 is nearly absolute.” In Ahn v.
Notricia (1993) AB-6281, the Board said: “This rule [Rule
61.4] concerns prospective interference or non-interference
with nearby residents’ quiet enjoyment of their property....
Apparently rule 61.4 is based upon an implied presumption
that a retail alcohol operation in close proximity to a
residence will more likely than not disturb residential
quiet enjoyment.” Interference must be presumed to exist
for any neighbors who were improperly excluded from
consideration, since no evidence of non-interference has
been offered. The presumption of interference was further
emphasized in Rawdah (AB-7527), where the Board rejected an
argument that Rule 61.4 only applies when a resident who
lives within 100 feet protests, saying that “It is the
function of Rule 61.4 to protect such residents.”
Without proper notification and consideration, the residents
of the 61.4 properties excluded in the Report were denied
due process and/or equal protection under the law and
interference with the quiet enjoyment of their property must
be presumed.
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The Department’s Premises Report claims on page 5 that “The
nearby residents do not face the front of the proposed
premises.” This statement is false and therefore adds
further weight to the presumption of interference. All of
the residents of 1777 Lafayette, condominiums located less
than 100 feet from the premises by the distance measuring
method described in B&P §61.4, face the premises, as shown
in Exhibits C-2 and C-3. The 43 residences at 1777
Lafayette are among the 61.4 properties improperly excluded
from consideration.
Although the Premises Report, page 4, states in a list of
conditions claimed to have been agreed to by the applicant
that “No activity which would produce noise inside or
outside of the building is permitted,” no such condition
appears in the Petition for Conditional License dated April
23, 2009, under which a temporary license was issued.
Therefore the Department failed to impose a condition that
its own expert deemed necessary to prevent interference with
the quiet enjoyment of the neighboring properties.
Although the Department is permitted by its Constitutional
mandate to exercise discretion in issuance of a license even
with the presence of 61.4 neighbors, such discretion must be
based in reason under the evidence, as described in Koss v.
Dept. Alcoholic Beverage Control, 215 Cal.App.2d 489, 496:
“If the decision is reached without reason under the
evidence, the action of the Department is arbitrary;
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constitutes an abuse of discretion; and may be set aside.”
Reason under the evidence, as the language in Koss clearly
requires, was impossible in this matter because, as
described herein, erroneous and false evidence was included
and material facts were excluded and/or ignored. Reason
cannot be built on an faulty foundation.
Prejudicial statements in favor of the applicant in the
Department’s Report demonstrate that its decision was not
impartial or based on reason under the evidence. These
included the under-counting of 61.4 residences, an
irrelevant statement that the protestant lives 520 feet from
the premises, the lack of evidence that all 61.4 neighbors
were properly notified or considered and the erroneous
statement that none of the 61.4 residents face the front of
the premises, and, as described elsewhere herein, deliberate
or negligent over-counting actual and available parking
spaces, omission or suppression of crime statistics,
misrepresentation of the governing body of the City of Santa
Clara, omission of photographs and diagrams submitted with
protestant’s protest, misrepresentation of the protestant’s
verbal statements regarding proposed conditions,
misrepresentation of the distance from the applicant’s
premises to a pedestrian overcrossing site of law
enforcement problems, misrepresentation of nearby parks as
having no facilities for children when they actually do,
misrepresentation of the census tract’s off sale license
over-concentration as marginal when it actually is twice the
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county average, and misleading the protestant to believe
that protest petition signers are not permitted to verify
their signatures after the protest deadline.
The protestant included with his protest a petition,
Protestant’s Exhibit S, incorrectly identified in the
Department’s Premises Report as a “list” of 115 neighbors of
the applicant’s business, all of whom are opposed to
issuance of a license in this location, for the reasons
described in the protest. Thirty (30) of these signers live
in “61.4” residences, within 100 feet of the premises.
Protestant, aided by other neighbors, solicited these
signatures from 116 neighbors, of whom only one declined to
sign. The Report describes the petition as “submitted with
signatures and dates not within the acceptable protest
period,” the latter claim being a logical impossibility
unless the signatures were somehow dated after it was
submitted to the Department, since the petition was
submitted in conjunction with a timely protest. The Report
states that “The ABC hearing and legally unit determined the
untimely protests to be invalid.”
“Invalid” is a misleading term to apply to these protests.
They are correctly described as “unverified,” as indicated
in a June 23, 2008 letter, Protestant’s Exhibit D, received
by the protestant from Elana R. Chambliss, a Department
legal analyst. In that letter, Chambliss misled the
protestant to believe that the protests in the petition
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could not be verified after July 3, 2008. The letter said,
“If you want to pursue your protest, the completed, dated
and signed Declaration must be received in this office by 5
p.m. on JULY 3, 2008. Your name appears first. If you want
the other listed protestants to pursue their protest, it is
your responsibility to duplicate the enclosed Declaration
and distribute with the same instructions” (emphasis
original). A reasonable person would interpret this to mean
that all signers had to meet the July 3, 2008 deadline,
which is not the case. In FADIE ABI ATMI (AB-8238, 2004),
the Department’s Appeals Board accepted verification after
the deadline for filing a protest had passed, saying, “In
civil law, the lack of a required verification on a pleading
does not deprive a court of jurisdiction to hear the matter
on its merits, and the defect is curable by amendment even
though the statute of limitations has run on the time to
file the original complaint. (Ware v. Stafford (1962) 206
Cal.App.2d 232, 237 [24 Cal. Rptr. 153].) Here, the protest
letter serves much the same purpose as a complaint, and
since the defect was cured, there was no reason for the
Department to dismiss or disallow the protest” (emphasis
added). The misleading instructions are especially
troubling given that the source was the Department’s Hearing
and Legal Unit, which surely should have been aware of this
five-year-old precedent. The Department’s misleading
instructions were prejudicial in favor of the applicant
because they temporarily discouraged the protestant and his
neighbors from verifying additional protests.
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Protestant asked the Department, via e-mail on August 21,
2009 (Protestant’s Exhibit R-1) to provide a blank copy of
the ABC-128 protest verification form so that additional
protestants who signed the petition could verify their
protests. The Department’s investigator refused to provide
the form, as shown in Protestant’s Exhibit R-2, and referred
the protestant to the Department’s Hearing and Legal Unit.
Protestant is baffled as to why the Department refuses to
provide a blank form, other than with the intent of
continuing to discourage petition signers from verifying
their protests.
The protestant included with his protest diagrams of the
applicant’s property and nearby parks and photographs of
alcohol beverage container trash and the SCPD issuing a
citation for public drinking less than 500 feet from the
applicant’s premises, near a Caltrain pedestrian
overcrossing. These diagrams and photographs were omitted
the Department’s Report, despite the fact that a letter,
photographs and diagrams allegedly rebutting them, by the
applicant’s consultant, Richard Cole, were attached as
Premises Report Exhibit E. Protestant asked the report’s
author, in an e-mail dated August 21, 2009 (Protestant’s
Exhibit R-1) what happened to those diagrams and
photographs, evidence of which was not produced during
discovery. The author, a Department investigator, replied
in an e-mail dated August 24, 2009, “The prescribed
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preparation of my report includes diagrams and photographs
similar to the ones you submitted. If you would like to
bring your copies to the hearing, it would be the decision
of the judge to allow you to introduce them,” as shown in
Protestant’s Exhibit R-2.
The protestant is utterly baffled by the investigator’s
reasoning, since the Department has produced no photographs
or other evidence of alcohol-related law enforcement
problems, trash, graffiti, police officers writing alcohol-
related citations or similar. Protestant can hardly imagine
a stronger display of prejudice in favor of the applicant
than to suppress the protestant’s submitted documentation of
alcohol-related law enforcement problems while attaching as
an exhibit to the Department’s Report, a rebuttal prepared
by the applicant and his expert consultant.
POINT THREE: NEARBY PUBLIC PARKS AND FACILITIES INTENDED FOR AND
USED BY CHILDREN
The Reed Street Dog Park, a public park owned and operated
by the City of Santa Clara, located at Lafayette and Reed,
is 567 feet from the premises, measured by air line, as
shown by Protestant’s Exhibit E-1. This park is incorrectly
described in the Department’s Premises Report: “Reed Street
Dog Exercise Park. Located across the Caltrain right-of-way
on Lafayette St. Approximate walking distance from the
premises: 1,000 ft. This would not be a consideration point
even if it were within 600 ft. There is no facility on site
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for the intended use by children.” The park, correctly the
Reed Street Dog Park, actually is intended for use by
children, who are frequently present, as shown by
Protestant’s Exhibit E-2. The city’s intent that the park
is for children is evidenced in the park’s Rule 2, shown as
posted in the park in Protestant’s Exhibit E-3: “Children
under 5 years must be accompanied by an adult (18 years or
older).” Having failed or chosen not to recognize the
park’s intended and actual use, the Department cannot have
given it appropriate consideration. The Department’s
misrepresentation of the park as not for children is highly
prejudicial in favor of the applicant.
The Larry J. Marsalli Park (incorrectly referred to as
“Lafayette Park” in the report; it was renamed 11 years
ago), located at Lafayette and El Camino, is 676 feet from
the premises, measured by air line, at its shortest
distance, as shown in Protestant’s Exhibit F-1. The
Department’s Premises Report incorrectly describes this park
as: “Lafayette Park: Consists of two baseball fields and a
large car parking lot. Straight-line distance is
approximately 700 ft. There is no facility on site
specifically for children.” As shown in Protestant’s
Exhibits F-2, F-3 and F-4, the park actually has just one
softball field (a home field of the SCPD Police Activities
League children’s softball games) and a children’s
playground with swings, a climbing structure, sandbox and
other play equipment. Having failed to recognize the park’s
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intended and actual use, the Department cannot have given it
appropriate consideration. Given that it is reasonable to
believe that no one would mistake a children’s playground
for a baseball field, protestant believes that the
Department investigator negligently or deliberately failed
to visit the park and thus could not have given it proper
consideration. As shown in Protestant’s Exhibit F-5, the
park is frequented by transients and alcoholic beverage
container trash.
POINT FOUR: CREATION AND/OR AGGRAVATION OF LAW ENFORCEMENT
PROBLEMS
Issuance of applicant’s temporary license has created law
enforcement problems and/or aggravated existing ones.
According to CrimeReports.com, the SCPD crime data source
offered by the applicant and the Department in Premises
Report Exhibit E, reported disturbances, including crimes
directly related to alcohol, have more than doubled in the
vicinity of the market since it received a temporary liquor
license and began selling alcoholic beverages. As shown in
Protestant’s Exhibit G (numbering and emphasis added)
“Quality of Life” (a CrimeReports.com search category)
police incidents – drugs, alcohol and disturbances including
drinking in public – nearly doubled (from 31 to 59) from the
two-month period before the applicant’s temporary license
was issued (March 20, 2009 to May 19, 2009) to the two-month
period immediate after (May 20, 2009 to July 19, 2009),
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within a 0.25 mile radius of 1670 Lafayette. Also according
to CrimeReports.com, the number of all types of reported
police incidents, other than traffic, increased 34 percent
during these time periods for the same geographic area. As
the incidents emphasized in red in Protestant’s Exhibit G
shows, the number of reported Drunk in Public (P.C. 647(f))
incidents within the 0.25 mile radius increased drastically
- 1,100 percent, from just one (1) in the two months before
applicant began alcohol sales to eleven (11) in the
following two months. Although this correlation does not
imply causation, protestant is not aware of any other cause
of these increases in crime, nor has the Department or
applicant proposed any other cause, leaving the applicant’s
alcohol sales as the sole known cause.
As shown in Protestant’s Exhibits I-1 through I-3, H-11 and
H-15, protestant has observed and photographed people
purchasing alcoholic beverages at applicant’s business,
drinking them in public at an adjacent business, at nearby
businesses and on a pedestrian Caltrain overcrossing and
being warned or cited by SCPD for public drinking.
Protestant has also observed and photographed empty
alcoholic beverage containers in and near the applicant’s
building and parking areas and around the area, as shown in
Protestant’s Exhibits E-2, F-5, H-8 through H-20, J-1 and J-
2.
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The market is located near a public pedestrian facility,
owned and maintained by the City of Santa Clara, the site of
local law enforcement problems, an overcrossing of Caltrain
tracks, known to locals as “the curlicue,” located 581 feet
north of the premises, measured by air line from the
applicant’s market to the start of the overcrossing, as
shown in Protestant’s Exhibit H-1. The section of sidewalk
that leads exclusively to the overcrossing is less than 400
feet from the applicant’s parking area, as shown in
Protestant’s Exhibit H-2. This structure is a choke point –
it is the only available legal pedestrian Caltrain crossing
for 0.75 miles north and 0.3 miles south, as shown by
Protestant’s Exhibit H-3. As shown in Protestant’s Exhibit
H-4, large trees at the north and south ends of the
overcrossing obstruct observation from surrounding streets.
In contrast to the noted pronouncement of U.S. Supreme Court
Justice Louis Brandeis, “Sunlight is the best disinfectant,”
the design and location of this important pedestrian
thoroughfare unfortunately create a shady refuge for
unlawful activity – those who misbehave can easily see out,
but law enforcement and neighbors cannot easily see in.
Sunlight has little opportunity to disinfect the
overcrossing’s hiding spots and the resulting law
enforcement problems are visible in the litter, urine,
feces, vomit, public drinking and other obvious issues, as
shown in Protestant’s Exhibits H-7 through H-20.
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Also shown in the preceding cited exhibits, graffiti
frequently appears on the overcrossing and surrounding
buildings and structures, as shown the previously cited
Exhibits. This graffiti includes neo-Nazi symbols and
phrases, tags and gang names. The names of the “Lafayette”
and “Main Street” gangs appear most often, crossing each
other’s graffiti out.
The nature of the problems of this overcrossing are
described almost exactly in Parente v.State Board of
Equalization (1934) 1 Cal.App.2d 238 [36 P.2d 437]
definition of a law enforcement problem: “a long-standing,
‘continuous police problem’ . . . referring to ‘the
difficulty of controlling the idle, the dissolute and the
criminal element of a city tending to congregate at a
designated place.’” It is also well-described by P.C. 370,
Public Nuisance: “Any thing which is injurious to health, or
is indecent, or offensive to the senses, or an obstruction
to the free use of property, so as to interfere with the
comfortable enjoyment of life or property by an entire
community or neighborhood, or by any considerable number of
persons, or unlawfully obstructs the free passage or use, in
the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street,
or highway, is a public nuisance.”
The Caltrain overcrossing was the site of an assault with
intent to rape in 1979, a crime whose solution later led to
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the conviction of the same man, Richard Archibeque, for
murder in a 30-year-old unrelated case in the same
neighborhood, via DNA analysis.
Arguments presented as Premises Report Exhibit E by
applicant’s consultant Richard Cole against the existence of
loitering, littering, public consumption of alcohol and
other chronic law enforcement problems described in the
original protest, are insubstantial. Cole’s photographs are
low-resolution and black-and-white and therefore cannot
reveal broken glass and similar debris. Further, even if
the photographs were of sufficient quality to reveal the
existence of trash and other debris, they would merely
provide evidence of a lack of such material at a particular
location at a particular moment in time. Protestant does
not dispute the existence of such places and moments in time
because protestant has observed the City of Santa Clara
regularly cleaning the facility and removing trash. Low-
resolution, black-and-white photographs taken shortly after
such a cleaning would show little or no trash and other
debris in the cleaned locations.
The magnitude and cost of the littering and graffiti problem
was documented in an email to the protestant from Santa
Clara City Manager Jennifer Sparacino on August 21, 2009
(Protestant’s Exhibit K), in response to an inquiry
regarding the frequency of cleaning and amount of material
removed from the pedestrian overcrossing. Sparacino wrote:
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“The Overpass maintenance is done on Mondays and alternate
Thursdays/Fridays; typically 4 trash bags are collected per
visit; There is minor graffiti cleaned up at each visit and
graffiti in hard to reach areas is done monthly. Currently
due to an upcoming painting project, some graffiti has
accumulated. Specific costs are not available per location
on the graffiti costs but the overall maintenance for the
Overcross is approximately $14,000 per year.”
For residents of the neighborhood surrounding the
applicant’s premises, the overcrossing is the only
pedestrian access to the Reed Street Dog Park and
restaurants and retail businesses located to its north.
Protestant has observed and photographed the overcrossing
frequented by adults, children, transients and others
engaged in activities including:
- Northbound people transporting quantities of bottles
and cans to recycling businesses shown in Protestant’s
Exhibit H-20. These people often use shopping carts
and/or bicycles to carry large loads. Shopping carts
are periodically abandoned on or near the overcrossing,
as shown in Protestant’s Exhibit H-16.
- Southbound residents of the mixed-use
residential/commercial area north of the overcrossing
walking or bicycling to public transit, shopping and
for other purposes around the El Camino Real corridor.
Protestant frequently sees single women, sometimes with
children, crossing the overpass, often with grocery
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shopping bags and carts, as show in Protestant’s
Exhibits H-4, H-5 and H-6.
- Practicing tai chi at the top of the overcrossing.
- Groups of child and adult students of Extreme Tae
Kwan Do, a martial arts academy located north of the
overcrossing at 2200 Lafayette, running and otherwise
exercising together.
- Day laborers traveling between public transportation
in the El Camino corridor and a Home Depot business
located at Lafayette and Martin, as shown in
Protestant’s Exhibit H-20.
- Groups of one to four people, loitering, often
sitting in the shaded areas, eating and drinking
alcoholic beverages.
- People sleeping in the brushy area immediately north
of the overcrossing, as shown in Exhibit AJ.
Protestant also frequently observes alcoholic beverage
container litter, graffiti, trash, urine stains, vomit,
feces, used toilet paper and other evidence of alcohol-
related activity and law enforcement problems on the
Caltrain overcrossing and its approaches, as shown in
Protestant’s Exhibits H-7 through H-20. Many of the
alcoholic beverage containers are from fortified and other
high alcohol-content beverages, including Mike’s Hard
Lemonade, as shown in Exhibit H-11, Cobra, as shown in
Exhibits H-8 and H-19, and Smirnoff’s Ice, as shown in
Exhibit H-16. Protestant also has observed empty Corona and
Budweiser beer cases on or near the overcrossing on at
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multiple occasions during the last year, as well as broken
glass beer bottles on the pedestrian walkway, which force
the protestant and others to either carry their dogs across
the area or drive to the Reed Street Dog Park.
Protestant also occasionally observes people walking along a
narrow curb at the side of Lafayette under the railroad
tracks, despite prominent signs prohibiting pedestrians.
Although protestant has not inquired as to these
pedestrians’ motives, it is reasonable to assume that some
of them would rather in public view while risking being hit
by a car than risk passing through the hidden, shady areas
of the overcrossing, where groups of people, usually men,
often loiter and drink.
In addition to being a means of traveling on foot between
the two sections of Santa Clara that it connects, the
overcrossing has sufficient park-like aspects to merit
treatment of it as a consideration point. Neighborhood
children use the structure for play, as shown in
Protestant’s Exhibit H-6 (upper left photo) and to stand and
watch, often waving, at trains, as shown in Protestant’s
Exhibit H-6 (lower center photo) and Protestant’s Exhibit H-
5 (upper center and bottom photos), and to watch dogs play,
which, as reasonable people know, are objects of great
fascination for many children. Also like a public park, the
overcrossing provides a shady, hidden place for unlawful
public consumption of alcohol, urination, defecation,
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graffiti, loitering and other illegal and/or undesirable
activities. Although the overcrossing is not technically a
public park, these aspects of its actual use effectively
create a consideration point that would justify, if not
require, denial of an off-sale license to any business in
its vicinity, particularly a business within 600 feet, as is
the applicant’s market.
POINT FOUR: APPLICANT’S BREACHES OF CITY ORDINANCES REGARDING
PARKING AND SIGNAGE
As shown in Protestant’s Exhibit M-1, the premises is
surrounded by 14 off-street parking spaces, seven in front
and seven in the rear. Eight of these spaces (seven in the
rear and one in the front) are unavailable to patrons of the
applicant and the two other retail businesses next to it
because they are variously marked “No Trespassing,” “No
Parking,” and “Authorized Parking Only,” as shown in
Protestant’s Exhibit M-2. The space in front of the
building marked “Authorized Parking Only” is partially
visible in Protestant’s Exhibit Q-1.
With only six off-street parking spaces available to the
patrons of three retail businesses, the site is
substantially out of compliance with city zoning
requirements. The City of Santa Clara Municipal Code
§18.74.020 describes required off-street parking for this
type of business: “(3) Retail Stores, Shops and Services.
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One space for each two hundred (200) square feet of gross
floor area.”
Based on measurements from the Department’s form ABC-257
attached to the Report and the aerial photographs, the gross
floor area of the combined three retail businesses is 4,690
square feet. According to the city’s parking requirements
formula cited previously, 23.45 spaces, or 24 full spaces
are required, leaving a shortage of eighteen (18) parking
spaces for patrons of the applicant and other retailers.
Even if the restrictive signage were to be removed, the
premises would still be ten (10) spaces short of City
requirements. It is simply impossible for this location to
meet the City’s parking requirements for retail parking when
all three storefronts are in use, as they are. There is no
public off-street parking available within a reasonable
distance.
In an e-mail to the protestant dated July 6, 2009
(Protestant’s Exhibit N), the city’s Director of Planning
and Inspection acknowledged that the premises is not
compliant with current city parking standards.
Despite the shortfall of off-street parking, the
Department’s Premises Report erroneously claims on page 1:
“Premises complies with local zoning requirements: Yes.”
The Report also claims on page 1 that there is an 18-space
parking lot behind the business, when in fact, there is only
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a seven-space lot, as shown in Protestant’s Exhibit M-1.
These statements are highly prejudicial in favor of the
applicant because they hide objective evidence of a parking
shortage that contributes to traffic problems and
interference with the neighbors’ quiet enjoyment of their
property.
POINT FIVE: VIOLATIONS OF CITY AND STATE CODE BY APPLICANT AND
ITS VENDORS
Deliveries to the applicant’s business are permitted or
required to be made in the front of the building, completely
blocking the sidewalk, as shown in Protestant’s Exhibit O-1,
in violation of CVC §22500: “No person shall stop, park, or
leave standing any vehicle whether attended or unattended,
except when necessary to avoid conflict with other traffic
or in compliance with the directions of a peace officer or
official traffic control device, in any of the following
places: … (f): On any portion of a sidewalk, or with the
body of the vehicle extending over any portion of a
sidewalk...”
As a result, pedestrians either have to detour around an
entire block or step into “heavy and fast” traffic on
Lafayette, as the Premises Report describes on page 6. The
danger of pedestrians navigating around these trucks and of
the trucks having to back onto Lafayette is described on
page 5 of the Premises Report: “Front parking on Lafayette
St. requires backing out onto the busy street and is
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somewhat ‘blind’ to through-traffic due to Caltrain
underpass. Most traffic appears to substantially exceed the
speed limit of 30 miles per hour.” In the protestant’s
experience of frequently driving this section of Lafayette,
the Report is accurate – traffic is fast and heavy and
excessive speed, often more than 15 miles over the posted
speed limit (30 mph), is common. Turning north on Lafayette
from Reeve Street, next to the applicant’s business, is a
stimulating experience, as traffic often appears quite
suddenly from the left as it emerges from the Caltrain auto
underpass.
For several months, the applicant has unlawfully placed
advertising signs on public streets, as shown in
Protestant’s Exhibit P-1, a violation of Santa Clara City
Code §18.80.030, which prohibits signs on public sidewalks.
The applicant has covered more than 33 percent of the
business’s windows and clear doors with advertising signs,
as shown in Protestant’s Exhibit Q-1, a violation of B&P
§25612.5, Retail Operating Standards.
POINT SIX: ABUSE OF DISCRETION
The protestant recognizes that the Department has broad
discretion to issue licenses, even when an undue
concentration of licenses exists, even when neighbors live
within 100 feet, even when those neighbors object. The
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Department may rely heavily on its own experience and
expertise, which the protestant fully acknowledges are
greater than his own, as the protestant is neither an expert
on alcohol licensing nor a lawyer.
However, he Department’s discretion to issue a license must
be based on reason in the evidence, or else its decision is
arbitrary and constitutes an abuse of discretion. In the
matter at hand, there have been so many and such serious
material errors and omissions of relevant information, as
well as inclusion of incorrect, erroneous and false
information, that the Department could not possibly reason
under the evidence. Reason can only arise from a thorough,
impartial investigation, but this investigation was far from
thorough and prejudiced in the applicant’s favor through
intention or negligence. Issuance of the applicant’s
temporary license thus constituted an abuse of discretion,
as would issuance of a permanent license based on this
investigation and Report.
POINT SEVEN: THE APPLICANT’S BURDEN
Although it might eventually be possible to determine whose
failures led to the many material flaws in the licensing
investigation and report, ultimately the responsibility was
with the applicant to establish that operation of his
business is not contrary to the public welfare and morals.
As previously cited in multiple sections of the B&P Code,
the burden lies with the applicant, making him not an
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innocent victim of the Department’s failures, but a
responsible party who had the power, in every deficiency
described herein, to cure the Department’s failures.
This application process began 14 months ago, providing
sufficient time to detect and cure Department failures. The
applicant has employed a highly experienced licensing
consultant who has the expertise to identify and cure the
failures. The applicant has offered to the protestant to
spend thousands of dollars to secure his license (far
greater assets than the protestant is able to bring to bear
on this issue, despite the strong neighborhood support for
his protest) and thus apparently was not significantly
constrained by financial resources. For these reasons, and
most importantly because the material facts in this matter
have not changed in the applicant’s favor over the 14
months, re-examination of the license process on the
applicant’s behalf would be inappropriate. The parks,
pedestrian overcrossing, the 61.4 neighbors, the undue
concentration of licenses – none has changed, other than the
alcohol-related crime rate, which favors the license denial
that the protestant seeks in order to protect the public
morals and welfare of his neighborhood.
PROTESTANT’S REQUEST FOR FINDINGS
Protestant requests a finding that applicant and the
Department failed to determine or establish that alcoholic
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beverage sales would not interfere with the quiet enjoyment
of nearby residents.
Protestant requests a finding that issuance of a license at
this address would add to an undue concentration of licenses
and that the applicant and the Department failed to
establish that public convenience or necessity would be
served.
Protestant requests a finding that because the market is
within 600 of a law enforcement problem (the Caltrain
overcrossing) and/or within 600 feet of a public park
intended for use by children (the Reed Street Dog Park),
denial of the license is within the discretion of the
Department.
Protestant requests a finding that issuance of a license
would create and/or aggravate law enforcement problems.
Protestant requests a finding that operation of the market
actually has created and/or aggravated existing law
enforcement problems.
Protestant requests a finding that good cause exists for
denial of applicant’s application.
Protestant requests a finding that the conditions of the
temporary license have failed to prevent an increase in
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alcohol-related crime and/or failed to ensure the neighbors’
quiet enjoyment of their property.
Protestant requests a finding that operation of the market
actually has interfered with the neighbors’ quiet enjoyment
of their property.
Protests requests a finding that granting the applicant’s
license would be contrary to public welfare and morals for
the reasons described in this statement.
Protestant requests a determination that no license for 1670
Lafayette may be issued without a new and thorough
investigation as required by B&P §23958.
Protestant requests a finding that due to over-concentration
of licenses, the Department does not have discretion to
issue a license for this address unless a Letter of Public
Convenience or Necessity is issued by the governing body of
the City of Santa Clara, currently the Santa Clara City
Council.
Protestant requests that any license issued for this
location must include conditions that address the problems
described herein, particularly the public consumption of
alcoholic beverages, public consumption of high alcohol-
content beverages, public consumption of cases of alcoholic
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beverages, inadequate parking, unlawful blockage of
sidewalks, unlawful signage and law enforcement problems.
Protestant requests a finding that the investigation related
to this license applicant was not “thorough” as defined in
B&P §23958 and/or was prejudiced in favor of the applicant
by means of negligent or deliberate omission or suppression
of material evidence and facts and/or inclusion of false,
erroneous and/or misleading statements.
Protestant requests a finding that the Department failed to
achieve in this investigation and issuance of a temporary
license the impartiality described in B&P §23049,
Legislative Intent: “It is the intention of the Legislature
in enacting this chapter to provide a governmental
organization which will ensure a strict, honest, impartial,
and uniform administration and enforcement of the liquor
laws throughout the State.”
Protestant requests a finding that the protestant and other
neighbors of 1670 Lafayette were deprived of due process
and/or equal protection under the law by means of negligent
or deliberate errors, omissions, prejudice in favor of the
applicant and other deficiencies reflected in the ABC Report
on Application for License No. 21-466915.
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