.b Concord REPORT TO MAYOR AND COUNCIL

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1 AGENDA ITEM NO. 4.b Concord REPORT TO MAYOR AND COUNCIL TO THE HONORABLE MAYOR AND COUNCIL: DATE: May 11, 2009 SUBJECT: GASCO ZONING ADMINISTRATOR PERMIT (ZA ) - APPEAL OF THE ZONING ADMINISTRATOR'S DECISION TO DENY A FINDING OF PUBLIC CONVENIENCE AND NECESSITY FOR RETAIL SALES OF ALCOHOLIC BEVERAGES (BEER AND WINE) AT THE GASCO LOCATED AT 4323 CLAYTON ROAD Report in Brief On February 11, 2009, the Zoning Administrator denied a request by Gasco, a gasoline service station, to sell beer and wine at 4323 Clayton Road. On February 20, 2009, Sanjiv Patel filed an appeal of the Zoning Administrator's denial, citing inaccurate findings for a Public Convenience and Necessity to allow the beer and wine license. Staff recommends that the City Council deny the appeal and uphold the Zoning Administrator's denial for a beer and wine license. Vicinity Map

2 APPEAL OF ZONING ADMINISTRATOR ' S FINDING OF PUBLIC CONVENIENCE AND NECCESSITY FOR GASCO (ZA ) May 11, 2009 Page 2 Background Gasco, a service station with a convenience store, requests approval of a Finding of Public Convenience and Necessity (FOPCN) and Zoning Administrator Permit to allow an alcoholic beverage license to sell beer and wine for off-site consumption. The ABC enforces the licensing of alcoholic retailers regulated by State Law under Section of the Business and Professional Code. ABC will deny any application if issuance of the license will create a law enforcement problem or if issuance will result in or add to an undue concentration of licenses. The State relies on a ratio of off-sale retail licenses to population in the census tract to determine if an area is over concentrated. On August 27, 2008, ABC denied the applicant's request for a license to sell beer and wine for off-site consumption after it was determined that it would contribute to an undue concentration of licenses.' The State allows local jurisdictions to grant licenses in areas of undue concentration provided that it makes a finding that issuing the license would serve a public convenience and necessity. The City's process for making a Finding of Public Convenience and Necessity for alcoholic beverage sales licenses denied by ABC is set forth in Policy and Procedure 139 (P&P 139). P&P 139 requires the Zoning Administrator to consider all requests for a FOPCN. The Zoning Administrator's decision on the FOPCN is appealable to the City Council. On February 11, 2009, the Zoning Administrator held a public hearing to consider Gasco's FOPCN. After hearing testimony from the public, including three neighbors and customers in support of the FOPCN, the Zoning Administrator declared his intent to deny the permit. The Zoning Administrator acknowledged improvements to the store, however, it was recognized that the benefits to the community do not outweigh law enforcement and concentration criteria. On February 11, 2009, the Zoning Administrator adopted Zoning Order , denying the request for a Finding of Public Convenience and Necessity for an off-sale license. On February 20, 2009, Sanjiv Patel filed an appeal of the Zoning Administrator's denial, citing inaccurate findings for a Public Convenience and Necessity to allow the beer and wine license. Discussion Policy and Procedure 139 The section discusses the policies under P&P 139 that provide the necessary findings for permitting alcoholic beverage licenses in areas of undue concentration. The findings under P&P 139 that are to be considered in a request for the FOPCN are listed below in italics. Each finding is followed by the Zoning Administrator's denial. Policy 3.1- The City may make a finding of public convenience and necessity if any of the following are met: 1) a business is already licensed at a different location and is relocating within the same census tract, 2) an 1 Based on information obtained from ABC in 2003, for Contra Costa County, the ratio of off-sales licenses to population is 1 license per 1,254 people. The subject census tract has a population of 6,115 with a total of 5 off-sale licenses issued. This results in a ratio of 1 license per 1,223 people within the census tract The following licenses have been approved for the subject census tract: 7-Eleven approved July 1, 1988; Safeway approved on May 15, 1989; Ultra Gasoline approved on August 28, 1990; Food Maxx approved on July 1, 1994; and Chevron approved on January 16, 2002.

3 APPEAL OF ZONING ADMINISTRATOR'S FINDING OF PUBLIC CONVENIENCE AND NECCESSITY FOR GASCO (ZA ) May 11, 2009 Page 3 existing business is changing from one type of license to another, 3) an undue economic hardship would result, or 4) the business includes alcoholic beverage sales as an ancillary part of its operation. The Zoning Administrator found that the application does not meet any of the above criteria. Gasco is not licensed to sell alcoholic beverages and is not relocating the business within the same census tract. Because the business is unlicensed, the applicant is not proposing to change an existing alcoholic beverage license from one type to another. The applicant has not provided any evidence that would suggest an economic hardship would result if the alcoholic beverage license was denied, as alcoholic sales would be no more than 1% of total sales. Lastly, as a service station whose primary business is selling gasoline, selling alcoholic beverages is not an ancillary part of its operation. Alcohol sales would be considered ancillary by the Zoning Administrator subordinate and supportive to the main business, for instance alcoholic beverages sold at a full-scale grocery store. Policy 3.2 The City may make a finding of public convenience and necessity where the benefits to the community outweigh law enforcement and concentration criteria. The Zoning Administrator finds that the sale of beer and wine at the site will not benefit the nearby community by providing a close, convenient and safe place to purchase alcoholic beverages. There are a number of businesses selling alcoholic beverages located less than a mile from the subject site, including Ultra Gasoline at 4321 Clayton Road (across the street), Safeway at 4309 Clayton Road (0.05 miles), Chevron at 4295 Clayton Road (0.09 miles), Longs Drugs at Bel Air Shopping Center (0.39 miles), and Food Maxx at 4505 Clayton Road (0.69 miles). The Zoning Administrator further finds that the benefits do not outweigh potential law enforcement concerns. The Police Department has recommended against issuing the license to Gasco on the grounds that the increased availability of alcohol may exacerbate crime, transients, and loiterers in the Clayton Road corridor. Further, the Police Department has identified 13 individuals who frequent this neighborhood and are habitually intoxicated. Business and Professions Code Section states: "It is unlawful for anyone to sell, furnish, give, or cause to be sold any alcoholic beverage to any habitual or common drunkard or obviously intoxicated person." The burden on the police to enforce this requirement would not be justified by the marginal benefit provided by having one more alcoholic retailer in the neighborhood and would not be consistent with the City's community policing and quality of life along the Clayton Road corridor goals. Policy 3.4 Issuing the license shall not result in a public nuisance, or otherwise result in adverse impact on public health, safety or welfare. The Zoning Administrator finds that the addition of another alcoholic beverage retailer would potentially cause loitering and other nuisances that often accompany alcoholic beverage outlets, and would introduce additional blight to an area already saturated with businesses that sell alcoholic beverages. The Police Department has informed staff that: "This area of our City is plagued with an inordinate amount of chronic inebriants which results in a drain on resources on City staff ranging from Parks Department having to deal with encampments, Public Works having to clean up littering, and the Police Department having to enforce liquor, loitering and intoxication violations. Within the census tract, there appears to be an overconcentration of liquor distributors and any additional distributors will only compound the issue at hand."

4 APPEAL OF ZONING ADMINISTRATOR ' S FINDING OF PUBLIC CONVENIENCE AND NECCESSITY FOR GASCO (ZA ) May 11, 2009 Page 4 Appeal The appeal was filed by Sanjiv Patel, business owner of the Gasco gas station. The main arguments of Mr. Patel's appeal are noted below in italics, followed by staff comments. The City of Concord's Policy and Procedure 139 states the purpose of this policy is to "...assess public convenience and necessity regarding alcoholic beverage sales licenses which have been denied by the Department of Alcoholic Beverage Control due to... criteria contained in Section of the Business and Professions Code. " However, the Department of Alcoholic Beverage Control application in question has not been denied by the ABC; rather, it is a pre-approved application with ABC awaiting the outcome of a public convenience or necessity finding. Therefore, because the governing requirement that an application be denied by ABC has not been met, Policy and Procedure 139 does not provide authority for the City to deny this application. Gasco's liquor license has in fact been denied by ABC based on undue concentration. If ABC had approved a liquor license, they would have issued a license to Gasco. Gasco has requested the City to issue a FOPCN, the latter which is necessary when ABC denies a liquor license. Staff believes that a FOPCN is unsupportable, for the reasons stated above. More than 100 of the applicant's customers signed a petition in favor of this business being granted a liquor license. The community has voiced their desire for the convenience of one-stop shopping. The Police Department has not issued a formal protest against this business being licensed for alcohol sales. The applicant submitted a petition in support of his request to sell alcohol that has 82 signatures. Of the 82 petitioners, 16% live nearby the gas station; 18% live outside of the Concord city limits; and 66% live outside the adjacent neighborhood but in Concord. The petition, however, doesn't address or change any of the circumstances that led to the Zoning Administrator's denial of the permit. In assuming ownership of this business, the applicant completely renovated a building that previously sat for two years in an unoccupied derelict condition. Staff agrees that the property has been renovated and it is kept in a clean and neat manner. However, P&P 139 does not list site renovation as a possible finding of public convenience and necessity. Summary and Recommendation The City may make a Finding of Public Convenience and Necessity to issue liquor licenses in over concentrated areas only if it meets all of the criteria under P&P 139. In cases which do not fit the criteria, the City cannot make a Finding of Public Convenience and Necessity. Staff concurs with the Zoning Administrator's denial of the Finding of Public Convenience and Necessity for a beer and wine license for Gasco. Staff believes that the issuance of the license has a strong potential to result in public nuisances, creating adverse impacts on the surrounding neighborhoods' health, safety and welfare. The benefits to the community of having one more outlet to purchase beer and wine do not outweigh law enforcement and concentration criteria. Therefore, staff recommends that the City Council deny the appeal and uphold the Zoning Administrator's denial for a beer and wine license.

5 APPEAL OF ZONING ADMINISTRATOR'S FINDING OF PUBLIC CONVENIENCE AND NECCESSITY FOR GASCO (ZA ) May 11, 2009 Page 5 Fiscal Impact There is no fiscal impact associated with this item. Public Contact Notification was mailed to all owners and occupants within 300 feet of the subject parcel, and has been published in the Contra Costa Times, as required by the Concord Municipal Code. This item has also been posted at the Civic Center and at the subject site at least 10 days prior to the public hearing. Alternative Courses of Action The following are the alternatives that the Council can take regarding this application: 1. Uphold the Zoning Administrator's decision and adopt Resolution No denying the appeal. 2. Approve the appeal with findings, and direct staff to prepare the appropriate resolution. 3. Continue the hearing to a future date. Recommendation for Action Staff recommends alternative #1 above. Danie een City Manager Dan.Keen@ci. concord. ca.us Exhibits: r Prepared by: Reviewed by: Reviewed by: Brooke Alvarez Planning Technician Brooke.Alvarez (a),,ci. concord. ca. us Deborah Raines Planning Manager Deborah.Raines@ci. concord. ca.us James Forsberg Dir. of Planning and Economic Dev. James.Forsberg@ci. concord. ca.us A- Resolution No denying the appeal and upholding ZA B- Appeal from Sanjiv Patel and Lorrie A. Hoel dated February 20 & March 16, 2009 C- Zoning Administrator Order No D- Zoning Administrator Staff Report, February 11, 2009 (w/out attachments) E- from Sergeant Bill Roche dated January 20, 2009 F- Policy and Procedure 139

6 ATTACHMENT A BEFORE THE CITY COUNCIL OF THE CITY OF CONCORD COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA A Resolution Denying the Appeal by Sanjiv Patel and Approving the Zoning Administrator ' s Denial of a License Allowing the Sale of Beer and Wine at Gasco (ZA ) Resolution No WHEREAS, on November 5, 2008, Engineer's Associates, Inc., submitted an application for a Zoning Administrator Permit for a Finding of Public Convenience and Necessity to sell beer and wine at Gasco gas station at 4323 Clayton Road, APN ; and WHEREAS, on December 5, 2008 the application was deemed complete for processing; and WHEREAS, pursuant to the provisions of the California Environmental Quality Act (CEQA) of 1970, as amended; the project is classified as Categorically Exempt pursuant to Section Class 1 "Existing Facilities," and therefore no further environmental review is required; and WHEREAS, the Zoning Administrator, after giving all public notices required by State law and the Concord Municipal Code, held a duly noticed public hearing on February 11, 2009 regarding the subject proposal; and WHEREAS, On February 11, 2009, after consideration of all pertinent plans, documents, reports, and oral and written testimony received at the public hearing, the Zoning Administrator denied Zoning Administrator Permit (ZA ); and WHEREAS, on February 20, 2009, Sanjiv Patel filed an appeal of the Zoning Administrator's approval, citing inaccurate findings for a Public Convenience and Necessity to allow the beer and wine license; and WHEREAS, on March 30, 2009, after consideration of all pertinent plans, documents, reports, and oral and written testimony received at the public hearing, the City Council declared their intent to deny the appeal and deny the subject permit. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CONCORD DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Denies the appeal and denies Gasco's Zoning Administrator Permit (ZA ) for a Finding of Public Convenience and Necessity for retail sales of alcoholic beverages (beer PED 4B ATT A GASCO APPEAL RES doc 1

7 ATTACHMENT A and wine), and further makes the following findings: 1. The request does not meet any of the criteria listed under Section 3.1 of Policy and Procedure 139 as follows: a) the business is not already licensed at a different location and relocating within the same census tract, b) is not changing an existing license from one type or another, c) an undue economic hardship has not been proven to result if the license is not issued, d) and does not include the sale of alcoholic products as an ancillary part of the gasoline service station's primary business. 2. The potential benefits to the community of allowing alcoholic beverage sale at the gas station do not outweigh potential law enforcement concerns and over concentration in the area. 3. Issuance of a license will potentially result in public nuisances, or could otherwise have adverse impacts on the neighborhood's health, safety and welfare due to the concentration of similar sales in the surrounding neighborhood and the need for additional police services. Section 2. This Resolution shall become effective immediately upon its passage and adoption. PASSES AND ADOPTED by the City Council of the City of Concord on May 11, 2009 by the following vote: AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers ABSENT: Councilmembers I HEREBY CERTIFY that the foregoing Resolution No was duly and regularly adopted at a regular joint meeting of the City Council and the Redevelopment Agency of the City of Concord on May 11, Mary Rae Lehman City Clerk PED 4B ATT A GASCO APPEAL RES doc 2

8 1 APPROVED AS TO FORM: Craig Labadie City Attorney PED 4B ATT A GASCO APPEAL RES doc 3

9 TO: City Council City of Concord 1950 Parkside Drive, MS/03 Concord, CA oncord ^/ NOTICE OF APPEAL [Concord Municipal Code 2901(b)] EXHIBIT B PUBLIC NOTICE FEE $ (According to Fees and Charges Resolution) DATE PAIL) FEE RECV'D BY_ DATE. I hereby appeal the decision 1 requirement of the 1 (ADMINISTRATOR OR COMMI ION) in approving /denying the application of S S ^C t S NAME OF A PLICANT)? t V L V s` ^ b A3 i c I^DwVi 1 1S'Ti^ f ^ C ^ + PC ec r--1, S, i IN tibtz kc e on ^V vcz 5 ^Ot* ^arlt^ g ^ CrITLE 'M OF ^EM BEING APPEALED) Please indicate the specific action(s) or requirement(s) being appealed: MILE >~ 1 ^1 S b r D- I f+l U 2 O N F CO L rj C G G F-- 04 C C. L!:-: v ^F^TL`-L E HERS Assoct T(V C. uv o^ SIGMA RE OF APPELLANT/ REPRESENTATIVE (PRINT) NAME OF APPELLANT 1 ^o ^y ^ []. Vv(Q^.-^ i C) C -1 A FELLA 'S ADDRESS HOME PHONE BUSINESS PHONE C ^i4^21 ADDRESS FOR NOTICES 3 CLJ/ ^ ) J O. f C^^VCor ^^, - MY REPRESENTATIVE IS o y^ y i HO C-# L37 r, `, CAI. -- BUSINESS PHONE ADDRESS OF PROPERTY INVOLVED FOR STA FF USE ONLY. ASSES OR 'S PARCEL NUMBER (S MUNICIPAL CODE SECTION L FILE MBER FILE TITLE QC NAME OF RESPONSIBLE PLANNER REVIEWED BY (PLANNING STAFF) RE CE I V BY 00f 1 + PROJEC NNER r-oo V Al re7 ^ o Y Copies distributed to appropriate parties AS-17 APR 00 WHITE - CITY CLERK

10 450 North Brand Boulevard, Suite 600, Glendale, California tel: internet: a division of Copernicum Corporation Brooke Alvarez City of Concord 1950 Parkside Drive Concord, CA Re: ZA Order No March 16, 2009 VIA Dear Brooke: Please consider this letter our formal appeal to the Zoning Administrator's resolution number have addressed the resolution's findings below. FINDING 1: "The request does not meet any of the criteria listed under Section 3.1 of Policy and Procedure The City of Concord's Policy and Procedure 139 states that the purpose of this policy is to "...assess public convenience and necessity regarding alcoholic beverage sales licenses which have been denied by the Department of Alcoholic Beverage Control due to...criteria contained in Section of the Business and Professions Code." However, the Department of Alcoholic Beverage Control ("ABC") application in question has not been denied by the ABC; rather, it is a pre-approved application with ABC awaiting the outcome of a public convenience or necessity ("PCorN") finding. Therefore, because the governing requirement that an application be denied by ABC has not been met, Policy and Procedure 139 does not provide authority for the City to deny this application. See Exhibits A and B. Policy and Procedure 139, Section 3.1, establishes four criteria for how the city may make a PCorN finding under the governing condition that first "...ABC denies an application..." Again, because the subject ABC application has not been denied by ABC, Section 3.1 does not provide authority for the City to deny this PCorN application. If Policy and Procedure 139 is ultimately found to properly apply to the assessment of PCorN within the City of Concord, then according to Section 3.1, the City may make an affirmative PCorN finding if one or more of four enumerated criteria are met. In response to Section 3.1.3, the availability of beer & wine is generally expected by patrons as an ancillary product to gas sales. The applicant will suffer economic hardship without this license because they will not be able to compete with other like businesses in the area. In this current challenging economic climate, every advantage is necessary for small businesses to succeed. Additionally, by denying the public the opportunity to purchase beer & wine at this business, the City will suffer an economic hardship without this license by failing to generate and collect tax revenue. It is incumbent, upon the City to support. qualified and well-run businesses with an opportunity to operate as a licensed premise.

11 In response to Section 3.1.4, beer and wine sales will only be 1-2% of the total sales of the business. This ratio would be considered an ancillary part of the operation. FINDING 2: "The potential benefits to the community of providing alcoholic beverages services at the proposed location do not outweigh potential law enforcement concerns and over concentration in the area. " In two days, more than 100 of the applicant's customers signed a petition in favor of this business being granted a liquor license. The community has voiced their desire for the convenience of one-stop shopping. The pending application on file with ABC was protested by two nearby residents. The applicant successfully negotiated operating conditions satisfactory to the concerned parties who then subsequently withdrew their protests. This demonstrates that the applicant is attune to listening to and responding to the needs of local residents. The police department has not issued a formal protest against this business being licensed for alcohol sales, nor did a police representative appear at the February 11, 2009 public hearing on this matter. Additionally, Sergeant Tiffany Leftwich conducted on-site alcohol training of all Gasco employees. This business currently employs 4 local individuals and will hire more once the license is issued. Employment of local residents serves as a great benefit to the community and reinvests payroll dollars back to the local economy. FINDING 3: "Issuance ofa license will result in a public nuisance, or otherwise have adverse impacts on public health, safety or welfare due to the concentration of similar uses in the surrounding neighborhood and the need for additional police services. " In assuming ownership of this business, the applicant completely renovated a building that previously sat for two years in an unoccupied and in derelict condition. By revitalizing this business and the surrounding property, the owners have stopped the creep of urban blight and have helped contribute to an environment of renewed progress and prosperity. The applicant has made extensive security improvements at the site including additional exterior lighting and internet ready security cameras inside and out. Alcohol will not be sold after 11:00pm and additional employees will be hired once the license is issued to help monitor operations. Additionally, as mentioned above, the employees at this business have received alcohol training by the police department to help ensure responsible alcohol sales. Sincerely, Lorrie A. Hoe] Phone: , Extension JAHoei@Amlex.com

12 Exhibit A California Department of Alcoholic Beverage Control License Query System Summary as of 3/16/2009 License Information License Number: Status: PENDING Prima Owner: ENGINEERS ASSOCIATES INC ABC Office of Application : OAKLAND Business Name Doin Business As: GASCO Business Address Address: 4323 CLAYTON RD Census Tract: Ci : CONCORD Coun : CONTRA COSTA State: CA Zip Code: Licensee Information Licensee : ENGINEERS ASSOCIATES INC Corn an O ficer In ormation Officer: PATEL SANJIV N, PRESIDENT/TREASURER License Types 1) License Type: 20 - OFF-SALE BEER AND WINE License Type Status: PENDING Status Date: 27-AUG-2008 Term : Month(s) Original Issue Date: Expiration Date: Master: Y Du plicate: 0 Fee Code: NA Current Disciplinary Action. No Active Disci linar Action ound... Disca lina J.Histo No Disciplinary History ound... Ilolcl Information Hold Date: Type: FORM 220 Escrow. No Escrow ound End of Report For a definition of codes, view our olcssay.

13 i Exhibit B From: Troutman, Elizabeth@ABC Sent: Monday, March 16, :32 PM To: Troutman, Elizabeth@ABC Subject: RE: Engineer's Associates Pending On this type of license Off Sale Beer & Wine it's the Zoning Administrator of the City of Concord who is designated to approval Public convenience or Necessity will be served by issuance of this license. Oakland ABC will only have the applicant withdrawal this application is if the Zoning Administrator of The City of Concord, denies PCN. Elizabeth Troutman Licensing Representative If

14 EXHIBIT C ZA ORDER NO OFFICE OF THE ZONING ADMINISTRATOR CITY OF CONCORD DENYING ZONING ADMINISTRATOR PERMIT (ZA ) Applicant : Engineer's Associates, Inc. Owner : Azad Amiri Project Name: Gasco Zoning Administrator Permit WHEREAS, on November 5, 2008, Engineer's Associates, Inc., submitted an application for a Zoning Administrator Permit for a Finding of Public Convenience and Necessity to sell beer and wine at Gasco gas station at 4323 Clayton Road, APN ; and WHEREAS, on December 5, 2008 the application was deemed complete for processing; and WHEREAS, public notices were mailed out to all property owners and occupants within 300 feet as required by State law and the Concord Municipal Code, and WHEREAS, pursuant to the provisions of the California Environmental Quality Act (CEQA) of 1970, as amended; the project is classified as Categorically Exempt pursuant to Section Class I "Existing Facilities," and therefore no further environmental review is required. WHEREAS, the Zoning Administrator, after giving all public notices required by State law and the Concord Municipal Code, held a duly noticed public hearing on February 11, 2009 on the subject proposal; and NOW, THEREFORE, BE IT RESOLVED that the Zoning Administrator does hereby deny Zoning Administrator Permit (ZA ) based on the following findings: 1. The request does not meet any of the criteria listed under Section 3.1 of Policy and Procedure 139 as follows: a) the business is not already licensed at a different location and relocating within the same census tract, b) is not changing an existing license from one type or another, c) will not suffer an economic hardship if the license is not issued, d) and does not include the sale of alcoholic products as an ancillary part of the business. 2. The potential benefits to the community of providing alcoholic beverages services at the proposed location do not outweigh potential law enforcement concerns and over concentration in the area. 3. Issuance of a license will result in a public nuisance, or otherwise have adverse ZA Order No

15 I impacts on public health, safety or welfare due to the concentration of similar uses in the surrounding neighborhood and the need for additional police services. Based on the above findings, on February 11, 2009, the Zoning Administrator denied said application Cc: Azad Amiri, P.O. Box 5728 Concord, CA Deborah Raines, Planning Manager Cathy Munneke, Principal Planner Tiffiny Leftwich, Concord Police Department Bill Roche, Concord Police Department G. Ryai};Lenhardt Zoning Administrator ZA Order No

16 EXHIBIT D Concord REPORT TO ZONING ADMINISTRATOR DATE: February 11, 2009 SUBJECT: GASCO ZONING ADMINISTATOR PERMIT ( ZA ) Recommendation : Deny GASCO Zoning Administrator Permit for a Finding of Public Convenience and Necessity (ZA ). I. Introduction A. Application Request Request for a Zoning Administrator Permit for a Finding of Public Convenience and Necessity for retail sales of alcoholic beverages (beer and wine). B. Location The project site is located 4323 Clayton Roast, APN Vicinity Mau

17 GASCO FOPCN (ZA ) February 11, 2009 Page 2 C. Applicant Owner(s) Engineer's Associates, Inc. Azad Amiri 4323 Clayton Road P.O. Box 5728 Concord, CA Concord, CA (925) (925) Background The Department of Alcoholic Beverage Control (ABC) enforces the licensing of alcoholic retailers regulated by State Law under Section of the Business and Professional Code. ABC will deny any application if issuance of that license would tend to create a law enforcement problem or if issuance would result in or add to an undue concentration of licenses. The State relies on the ratio of off-sale retail licenses to population in the census tract to determine if an area is over concentrated. If ABC denies an application based on undue concentration of licenses or law enforcement criteria, the City may consider making a Finding of Public Convenience and Necessity when requested to do so by a prospective alcoholic beverage retail business. The City' s process for making a Finding of Public Convenience and Necessity for alcoholic beverage sales licenses denied by ABC is set forth in Policy Procedure 139 (Exhibit Q. ABC may issue the license only after this finding is made by the City. On August 27, 2008, ABC denied the applicant's request for a license to sell beer and wine for off site consumption due to an over concentration of liquor licenses. The applicant's request would result in the sixth liquor license in a census tract where four licenses are permitted. On November 5, 2008, the applicant submitted a Zoning Administrator Permit for a Finding of Public Convenience and Necessity. III. Analysis The Planning and Economic Development Department is responsible for implementing Policy and Procedure 139. According to Section 3.1 of the policy, if ABC denies an application based on undue concentration of licenses or law enforcement criteria, the City may make a finding of public convenience and necessity if- 1. a business is already licensed at a different location and is relocating within the same census tract, 2. an existing business is changing from one type of license to another, 3. an undue economic hardship would result, or 4. the business includes alcoholic beverages sales as an ancillary part of its operation. If the application does not meet the above criteria, then Section 3.2 states "The City may make a finding of public convenience and necessity in those circumstances where the benefits to the community outweigh law enforcement and concentration criteria. "

18 GASCO FOPCN (7A ) February 11, 2009 Page 3 The application does not meet any of the above criteria. Gasco is not licensed to sell alcohol therefore criteria 1, 2, and 4 do not apply. Gasco is a gasoline service station with a 1,000 sq. ft. convenience store that provides a variety of grocery and sundry items. Gasco's primary business is selling gasoline. The applicant has estimated that alcoholic sales would be no more than 1% of total sales. The applicant has not provided any evidence that would suggest an economic hardship would occur if the alcoholic beverage license were denied. Staff does not believe adding one more alcohol retailer results in any appreciable gain in terms of convenience, nor is it necessary in an area already served by several alcohol retailers. There are a number of businesses selling alcoholic beverages located less than a mile from the subject site, including Ultra Gasoline at 4321 Clayton Road (across the street from GASCO), Safeway at 4309 Clayton Road (0.05 miles), Chevron at 4295 Clayton Road (0.09 miles), Longs Drugs at Bel Air Shopping Center (0.39 miles), and Food Maxx at 4505 Clayton Road (0.69 miles). Staff has concerns that the addition of another alcoholic beverage retailer would cause loitering and other nuisances that often accompany alcoholic beverage establishments. The Police Department has also recommended against issuing this liquor license. According to Sergeant Tiffiny Leftwich of the Police Department (Valley District Field Office), Business and Professions Code section 25602, states "It is unlawful; for any to sell, furnish, give, or cause to be sold any alcoholic beverage to any habitual or common drunkard or obviously intoxicated person. " Sergeant Leftwich has identified 13 people fitting the referenced description who frequent this neighborhood. Staff believes the burden on Police to enforce this requirement would not be justified by the marginal benefit provided by having one more alcohol retailer in the neighborhood. Additionally, ABC has received two protests from adjacent neighbors regarding concerns that the issuance of the license would cause an increase in violence and attract the homeless. These protests were subsequently withdrawn after conversations between the business owner and the neighbors. IV. Public Contact Notification was mailed to all owners and occupants of property within three-hundred (300) feet of the subject parcel, and has been published in the Contra Costa Times, as required by the Concord Municipal Code. This item has also been posted at the Civic Center and at the subject site at least 10 days prior to the public hearing. V. Summary and Recommendations The City may make a Finding of Public Convenience and Necessity to issue liquor licenses in over concentrated areas only if it meets all of the criteria under Policy and Procedure 139. In cases which do not fit the criteria, the City can not make a Finding of Public Convenience and Necessity. Based on the analysis contained in this report, staff believes that the issuance of the license will result in a public nuisance, or otherwise result in adverse impact on public health, safety or welfare. The benefits to the community will not outweigh law enforcement and concentration criteria, therefore

19 GASCO FOPCN (ZA ) February 11, 2009 Page 4 staff recommends that the Zoning Administrator adopt Zoning Order Number , denying Zoning Administrator Pen-nit (ZA ). Prepared by: Brooke Alvarez Planning Technician (925) brooke.alvarez@ci.concord. ca.us Exhibits: A - ZA Order No B - Applicant's Statement date stamped November 5, 2008 C - City of Concord's Policy and Procedure 139 D - Concord Police Department document date stamped November 5, 2008 o9srza.004

20 EXHIBIT E Alvarez; Brooke From : Roche, Bill Sent: Tuesday, January 20, :57 PM To: Alvarez, Brooke Subject: RE: Gasco FOPCN at 4323 Clayton Road Brooke, This section of our city is plagued with an inordinate amount of chronic inebriants which results in a drain on resources on city staff ranging from parks department having to deal with encampments, public works having to clean up littering, and the PD having to enforce liquor, loitering and intoxication violations. Within this census tract, there appears to be an over concentration of liquor distributors and any additional distributors will only compound the issue at hand. So based on the current situation, I believe the type 20 license would not be in the best interest of the community safety and drain on city staff. Please feel free to contact me if I can provide any additional information. Sergeant Bill Roche Concord Police Department Valley District Office

21 1 i EXHIBIT F CITY OF CONCORD Concord POLICY & PROCEDURE Number: 139 Authority: Council Motion Effective: 10/3/95 Revised: Reviewed: 2004 Initiating Dept.: PED ALCOHOLIC BEVERAGE CONTROL - LICENSES DENIED BY DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL PURPOSE To assess public convenience and necessity regarding alcoholic beverage sales licenses which have been denied by the Department of Alcoholic Beverage Control (ABC) due to law enforcement or undue concentration criteria contained in Section of the Business and Professions Code. 2. RESPONSIBILITY The Planning and Economic Development Department is responsible for implementing this Policy. 3. POLICY The City will consider making a finding of public convenience and necessity when requested to do so by a prospective alcoholic beverage retail business (on-sale and/or off-sale) which has had a license application denied by ABC based on the criteria referenced in Section 1, using the following guidelines: 3.1 If ABC denies an application based on undue concentration of licenses or law enforcement criteria, the City may make a finding of public convenience and necessity if 1) a business is already licensed at a different location and is relocating within the same census tract, 2) an existing business is changing from one type of license to another, 3) an undue economic hardship would result, or 4) the business includes alcoholic beverage sales as an ancillary part of its operation. 3.2 The City may make a finding of public convenience and necessity in those circumstances where the benefits to the community outweigh law enforcement and concentration criteria. 3.3 In cases which do not fit categories described in paragraphs 3.1 and 3.2 above, the City will not make a finding of public convenience and necessity. 3.4 In any case where issuance of a license will result in a public nuisance, or otherwise result in adverse impact on public health, safety or welfare, the City shall deny a request for a finding of public convenience and necessity. 4. PROCEDURES 4.1 Requests for consideration of findings of public convenience and necessity shall be submitted in writing to the Planning Division, with the application fee for a Zoning Administrator's Permit (Level "A") provided for in the Master Fees and Charges Resolution. 4.2 At least ten (10) days prior to the date on which the Zoning Administrator will make a decision on a request for a finding of public convenience and necessity, the Planning Manager, or his/her designee, shall give notice of the proposed finding, by mail or delivery, to all owners and occupants of real property located within three hundred (300) feet of the real property which is the subject of the request. 4.3 If requested by the applicant or other affected person, the Zoning Administrator will hold a public hearing before making a decision on the request.

22 POLICY & PROCEDURE No The Zoning Administrator, after consulting with the Police Department regarding law enforcement concerns, and considering the guidelines contained in Section 3, shall make a determination either 1) making a finding of public convenience and necessity or 2) denying the request. The determination shall be transmitted to the applicant and to ABC. 4.5 Any party may appeal the Zoning Administrator's determination to the City Council as provided by Municipal Code Section If the Zoning Administrator's decision is appealed, the City Council shall conduct a public hearing as provided by Municipal Code Section