3243 Sacramento Street

Transcription

1 Z O N I N G A D J U S T M E N T S B O A R D S t a f f R e p o r t 3243 Sacramento Street One-Stop Liquors For Board Action January 9, 2014 Public Hearing to consider terminating the lawful, non-conforming off-sale retail alcohol beverage sales use at One-Stop Liquors due to inactivity, under BMC Section 23C C. RECOMMENDATION Conduct a public hearing and, upon conclusion, adopt a resolution terminating the nonconforming retail alcohol use at 3243 Sacramento Street due to inactivity of more than 90 days per Berkeley Municipal Code (BMC) Section 23C C. Berkeley Municipal Code Provisions for This Hearing The Zoning Adjustments Board (ZAB) is conducting this hearing pursuant to BMC Chapter 23C (Abandonment of Non-Conforming Uses). For the purposes of this Chapter, the ZAB can declare a lawful, non-conforming retail alcohol outlet use terminated if the Board finds that the use has not been occurring for at least 90 days and that the most recent prior user has not demonstrated a good-faith intent to resume it. The Board may require any person claiming that the use should not be declared terminated to produce documentation to substantiate such good faith intent to resume the use. The ZAB s duties in this proceeding are: to conduct a public hearing, and to make a determination to either terminate the non-conforming retail alcohol outlet use or to allow the use to remain based on the evidence, testimony, and facts presented to the Board at the hearing.

2 Page 2 of 5 January 9, 2014 Figure 1: Vicinity Map 3240 N Subject Site One-Stop Liquors

3 Page 3 of 5 January 9, 2014 Property Setting One-Stop Liquors is located at 3243 Sacramento Street on the northeast corner of Alcatraz Avenue and Sacramento Street. The subject location is one block north of the Berkeley/Emeryville boarder. The property is located within the South Area Commercial District (C-SA) and consists of a single-story commercial building containing two commercial tenant spaces. The Yemenie American Grocers Association of California, Inc. is located within the 3237 Sacramento Street tenant space and One-Stop Liquors is located with the tenant space at 3243 Sacramento Street. The portion of the building containing One-Stop Liquors has damage to the front façade, possibly due to a vehicle striking the building, a deteriorated commercial sign with peeling paint, and is often tagged with graffiti. Based on observations from Code Enforcement staff and police, the liquor store has not been operational for at least a year. During this time, the front entrance has been boarded up and a security gate has been closed and locked with a chain and padlock. Alcatraz Market, located at the corner of Alcatraz and California, one block east of One-stop Liquors, is operational and sells beer and wine for off-site consumption. M&B Market, located at the corner of 63 rd Street and Sacramento Streets in Emeryville, one block south of One- Stop Liquors, is operational and sells beer, wine and liquor for off-site consumption. Because there are two retail alcohol outlets within a one-block radius of One-Stop Liquors, staff believes that retail alcohol sales at the subject location are not needed as a public convenience or necessity. Ownership and Operation of 3243 Sacramento Street According to City and County records, 3243 Sacramento Street is owned by Hamood Mohamed. The property was purchased from Nasr Mohamed on January 12, On December 31, 2013, Code Enforcement staff had a phone conversation with Mouseed Mohamed, the nephew of Hamood Mohamed, in which Mouseed indicated that he and his uncle were planning to reopen the store and had recently obtained the funds required to fix the damaged store front and renovate the store to reopen. Additionally, Mouseed Mohamed stated that his uncle has opened the store for a day or two each month to keep the ABC alcohol permit active and that his uncle would produce receipts from sales to show activity. He stated that the new mural on the south facade of the building was done to help deter graffiti. Retail Alcohol Operation On July 6, 1984, the Planning Department issued a Zoning Permit (now renamed a Zoning Certificate) transferring the operation of the non-conforming liquor store use to Nasr Mohamed operating it as One Stop Liquors (Exhibit #1). California Department of Alcoholic Beverage Control Licensing The proprietor of a business selling or serving alcohol must also obtain licensing from the California Department of Alcoholic Beverage Control (ABC). Unlike city land use entitlements which establish a land use at a specified, physical location, ABC licenses can be transferred and moved to different locations throughout the county.

4 Page 4 of 5 January 9, 2014 On May 10, 1995, ABC issued a Type 21 license, permit #307837, to Hamood Mohamed for general retail sales of beer, wines and spirits for off-site consumption. According to Title 4, Section 65 of the Business and Professions Code relating to surrendering an alcohol license on closure of the business, the proprietor of the business must surrender their permit to the California Department of Alcoholic Beverage Control if the business is closed for more than 15 days (Exhibit 2). Hamood Mohamed has failed to report One-Stop Liquors closed and surrender the Type 21 license to the California Department of Alcoholic Beverage Control since closing the business in late 2011 or early Code Enforcement staff notified ABC of the inactive status of the business in late September 2013 and, on October 9, 2013, ABC deemed the Type 21 license at 3243 Sacramento Street surrendered (Exhibit 3). Once an ABC alcohol license is surrendered the owner must either transfer the license to another proprietor or location, or reopen the business within a year in order to maintain an active ABC license. Hamood Mohamed would have to either reopen the store or transfer the Type 21 License to another proprietor or location within Alameda County by October 9, 2014 in order to maintain the ABC license. City of Berkeley Business License According to City records, Hamood Mohamed had paid the required 2011 business license fees, but failed to pay business license fees for years 2012 and 2013 until November 12, 2013 when he paid the minimum amount required to bring his business license status out of delinquency. According to Finance staff, the fees that Hamood Mohamed paid on November 12, 2013 to bring his license out of delinquency reflect that there was no income from sales at One-Stop Liquors between January 1, 2012 and November 12, Non-Conforming Use The operation of One-Stop Liquors is a legal, non-conforming use because it was established prior to the requirement that it operate pursuant to a Use Permit. If the Board were to decide to terminate the legal non-conforming use due to inactivity, the business owner would have to apply for a new Use Permit to allow a retail alcohol operation. A new Use Permit would include standard Conditions of Approval for retail alcohol sales that would help limit detriment to the area. Termination of a Non-Conforming Retail Alcohol Outlet Per BMC Section 23C C the Board can terminate a legal, non-conforming retail alcohol outlet if it finds that the business has been closed for at least 90 days and not because of reasons of repair or rehabilitation of the premises. The Board must also find that the owner has not made a good faith attempt to reopen the business. Based on site observations from Code Enforcement staff and police, One-Stop Liquors has been closed and shuttered for over one year and there is no record of building permit applications or evidence of repair or rehabilitation to the premises. Additionally, the business license for One- Stop Liquors was in a delinquent standing from January 1, 2012 until November 12, Furthermore, a Notice of Violation (Exhibit 4) relating to the blighted condition of the property was issued to the property owner May 31, 2013 and the owner did not take the required corrective action to abate the violations. Site observations and photos (Exhibit 5) taken by Code Enforcement staff throughout November and December of 2013 and early January, 2014, show that the building has remained damaged and shuttered since the May 31, 2013

5 Page 5 of 5 January 9, 2014 Notice of Violation. The current status of the ABC alcohol permit remains surrendered and while Mouseed Mohamed did indicate in the December 31, 2013 phone call with Code Enforcement staff that he and his uncle would soon be renovating and reopening the store, there have been no physical improvements to the site other than a new mural painted on the south façade. Because of these findings, staff believes that the Board should terminate the legal nonconforming use of a retail alcohol outlet at 3243 Sacramento Street. Conclusion As a result of the above facts and investigation, is it apparent that One-Stop Liquors at 3243 Sacramento Street has been closed for more than 90 days and not because of repair or restoration of the premises. The owner has not made a good faith attempt to reopen the business and the property is blighted. Furthermore, because there are two retail alcohol outlets within a one-block radius of One-Stop Liquors, staff believes that retail alcohol sales at the subject location are not needed as a public convenience or necessity. Therefore, the Code Enforcement Unit and the Planning Department recommend that the ZAB terminate the lawful non-conforming retail alcohol sales use at 3243 Sacramento Street. Attachment 1 - Resolution Attachment 2 - Public Hearing Notices Exhibit 1 Zoning Permit #2871 Exhibit 2 Title 4, Section 65 of the Business and Professions Code Exhibit 3 ABC License Query Summary Exhibit 4 Notice of Violation, date May 31, Exhibit 5 Code Enforcement Case Log and Photos