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Statement Final

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ProProtestant's statement as finally submitted to ABC.

ProProtestant's statement as finally submitted to ABC.

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  • 1. Before the Department of Alcoholic Beverage Control
    Of 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 95050-3915Under the Alcoholic Beverage Control Act.))))))))))))))))))FILE: 21 – 466915REG: 09071307PROTESTANT’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, 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 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.
    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 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 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 §101.2735(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.
    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 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) 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 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.
    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; 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 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 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.
    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 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 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 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), 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.
    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.
    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 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: “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 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 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, 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. 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 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 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 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 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 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 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 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.