Statement Final

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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,

Protestant’s Statement (21–466915) - 1

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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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Statement Final

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