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c�11F004NP CITY COUNCIL STAFF REPORT
DATE: March 16, 2011 NEW BUSINESS
SUBJECT: REQUEST BY FRESH AND EASY NEIGHBORHOOD MARKET, INC.
FOR A RESOLUTION OF PUBLIC CONVENIENCE OR NECESSITY
(PCN) TO SELL BEER, WINE AND DISTILLED SPIRITS FOR
CONSUMPTION OFF PREMISES (TYPE 21 ALCOHOL LICENSE) AT
THE EXISTING NEIGHBORHOOD MARKET LOCATED AT 102 SOUTH
SUNRISE WAY.
CASE: 5.1260 — PCN
FROM: David H. Ready, City Manager
BY: Craig Ewing, AICP, Director of Planning Services
SUMMARY
The applicant, Fresh & Easy Neighborhood Market, Inc., is requesting the Council to
adopt a Resolution of Public Convenience or Necessity (PCN) for the sale of beer, wine
and distilled spirits for off-site consumption (Alcoholic Beverage Control Type 21
license) at the existing neighborhood market store located 102 South Sunrise Way. The
store is currently authorized to sell beer and wine for off-site consumption; however, the
applicant would like to upgrade their license to offer the sale of distilled spirits.
RECOMMENDATION:
Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, OF PUBLIC CONVENIENCE IN ORDER TO SELL
BEER, WINE AND DISTILLED SPIRITS FOR OFF SITE CONSUMPTION (TYPE 21
ALCOHOL LICENSE) AT A NEIGHBORHOOD MARKET STORE LOCATED AT 102
SOUTH SUNRISE WAY."
BACKGROUND:
The applicant has applied for a "Type 21" license through the State of California
Department of Alcoholic Beverage Control (ABC) for the existing neighborhood market
store located at 102 South Sunrise Way. The "Type 21" license authorizes the sale of
beer, wine and distilled spirits for off-site consumption; minors are allowed on the
ITEM ,110. �`
City Council Staff Report March 16, 2011
5.1260-PCN— Fresh & Easy Neighborhood Market Page 2 of 4
102 S. Sunrise Way
premises. Because of the "undue concentration" of Type 21 licenses in this particular
census tract, the ABC will not issue the license unless the City Council adopts a
resolution pursuant to state law, indicating that granting a "Type 21" alcohol license for
the subject premises will provide for the public convenience or necessity.
ANALYSIS:
The applicant is applying for a new "Type 21" alcohol license at 102 South Sunrise Way
for the sale of beer, wine and distilled spirits for off-site consumption. The Department
of Alcoholic Beverage Control is requiring a resolution from the City Council to approve
an "undue concentration" of such licenses. In accordance with Section 23958.4 of the
Business and Professions Code which took effect on January 1, 1995, "undue
concentration" means a property that is located in a census tract (or division) where the
ratio of off-sale retail licenses to the population in that tract (or division) exceeds the
ratio of off-sale licenses to the population in the subject county. When an undue
concentration is determined to exist, the State Department of Alcoholic Beverage
Control will not issue a license for the sale of alcohol without a letter or resolution from
the City Council which indicates the premises will provide for the public convenience or
necessity, by granting such license.
Currently, the State Department of Alcoholic Beverage Control considers the census
tract that the proposed license is to be located as having an "undue concentration" of
liquor licenses. The subject property is located within Census Tract #0447.01 (see
attached census map). This tract is authorized three (3) off-sale licenses and there are
currently three (3) active off-sale liquor licenses. The active licenses include the former
Vons site at 2315 E. Tahquitz Canyon Way (Type 21), Palm Liquor at 176 S. Sunrise
Way (Type 21), Fresh & Easy at 102 S. Sunrise Way (Type 20). State law was enacted
to allow local government the opportunity to regulate the number and location of such
uses. By making a finding of "Public Convenience or Necessity", the City Council may
determine that the subject premises will provide for the convenient patronage of the
public whereby the convenience does not already exist in the immediate area.
Surrounding zoning, general plan land use designations and existing uses are denoted
in the following table.
Table 1: Surrounding zones, general plan designations and existing land uses
Zone General Plan Land Use
North C-1-AA (Large-scale NCC (Neighborhood / Del Taco Restaurant &
Retail Commercial) Community Commercial) Professional Offices
South R-2 (Limited Multiple- MDR (Medium Density Multi-family Residential
family Residential) Residential)
East P (Professional) NCC (Neighborhood / Professional Offices
Community Commercial)
West Section 14 Specific Plan TRC (Tourist Resort Rite Aid Pharmacy &
RA (Resort Attraction Commercial Eisenhower facility
City Council Staff Report March 16, 2011
5.1260-PCN— Fresh & Easy Neighborhood Market Page 3 of 4
102 S. Sunrise Way
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AERIAL PHOTO SHOWING PROJECT SITE AND SURROUNDING DEVELOPMENT
Some of the immediate adjacent businesses have various types of licenses for the sale
and consumption of alcohol, including Rite Aid across the street and Palm Liquor in the
same shopping center. The closest school is the High School at 2401 East Baristo
Road.
The applicant states that alcohol sales comprise of no more than 15% of floor space
and that the alcohol sales average 5.1% of total sales (see attached letter from
applicant). The applicant further states that the stare has multiple security measures in
place, which include security cameras, signage, etc. to address law enforcement
concerns. Based on this description, staff recommends approval of the subject request.
FISCAL IMPACT:
No Fiscal Impact.
"0
--E.IWAk._ ing,APP, Thomas J. Wil n,
DiNwAiof of PI J
g Services Assistant City Manager
F
David H. Ready, City M
City Council Staff Report March 16, 2011
5.1260-PCN— Fresh & Easy Neighborhood Market Page 4 of 4
102 S. Sunrise Way
Attachments:
1. 400' Vicinity Map
2. Draft Resolution
3. Letter of Request from Applicant
4. Census Tract Map
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CITY OF PALM SPRINGS
CASE NO: 5.1260 PCN DESCRIPTION: To consider a request by Fresh &
Easy Neighborhood Market to allow the sale of beer,
wine and distilled spirits for off-site consumption from
APPLICANT: Fresh & Easy the existing neighborhood market store located at 102
Neighborhood Market South Sunrise Way, Zoned PD 76, Section 13.
5
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, OF PUBLIC
CONVENIENCE IN ORDER TO SELL BEER, WINE AND
DISTILLED SPIRITS FOR OFF SITE CONSUMPTION
(TYPE 21 ALCOHOL LICENSE) AT A NEIGHBORHOOD
MARKET STORE LOCATED AT 102 SOUTH SUNRISE
WAY.
WHEREAS, Fresh & Easy Neighborhood Market, Inc. ("Applicant") has
requested the adoption of a Resolution of Public Convenience or Necessity (Planning
Case No. 5.1260 PCN) for a Type 21 alcohol license to sell beer, wine and distilled
spirits for off-site consumption at a store located at 102 South Sunrise Way, APN 502-
161-004, Zone PD76, Section 13/T4/R4; and
WHEREAS, the Applicant proposes to sell beer, wine and distilled spirits for off-
site consumption as part of a neighborhood market store; and
WHEREAS, the applicant has made an application to the State of California
Alcoholic Beverage Control Board for a Type 21 license to sell beer, wine and distilled
spirits for consumption off-premises at 102 South Sunrise Way.
WHEREAS, the City Council is being asked to adopt a Resolution of Public
Convenience pursuant to the requirements of the Alcoholic Beverage Control Board
(ABC); and
WHEREAS, on March 16, 2011, the City Council carefully reviewed and
considered all of the evidence presented in connection with the request for a Resolution
of Public Convenience or Necessity, including but not limited to the staff report and all
written and oral testimony.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY
RESOLVE AS FOLLOWS:
SECTION 1. The City Council finds that a Type 21 liquor license (beer, wine and
distilled spirits) at 102 South Sunrise Way, serves the Public Convenience.
ADOPTED THIS 161h DAY OF MARCH, 2011.
David H. Ready, City Manager
ATTEST:
James Thompson, City Clerk
Resolution No.
Page 2
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that
Resolution No, is a full, true and correct copy, and was duly adopted at a regular
meeting of the City Council of the City of Palm Springs on ,
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
Alcoholic Beverage Onsulting Service
(diforn 's Liquor Licensing Experts
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December 23, 2010 �_ -.
Ci r_ ? i 1
Via UPS Ground PLANNING SERVICES
DEPARTMENT
Mr. David Newell, Associate Planner
City of Palm Springs Planning Department
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
RE: Fresh & Easy Neighborhood Market, Inc.
102 S. Sunrise Way
Palm Springs, CA 92262
Application for Public Convenience and Necessity
Dear Mr. Newell,
Fresh & Easy Neighborhood Market Inc. has operated their grocery market at
102 S. Sunrise Way in Palm Springs since March 2010. The store currently has a
type 20-offsale beer and wine license, and has filed an application with the
Department of Alcoholic Beverage Control to upgrade this license to a type 21-
offsale full liquor license. This process requires approval by the City of Palm
Springs of Public Convenience and Necessity. Please consider the following as
justification of Public Convenience and Necessity, as well as our explanation
of how this store does not interfere with its neighbors' quiet enjoyment of their
property for the approval of our application for an off-sale full liquor license at
the above location.
Premises Description
The premise, located at 102 S. Sunrise Way, is in the city of Palm Springs.
Alcohol sales comprise no more than 15 percent of floor space. Alcohol sales
average 5.1% of sales.
Public Convenience or Necessity
First, it is important to emphasise that Business & Pry.,.Ie sional Code § 23958.4
require a posit ve finding of public convenience"-, "or"n.7-.:cessity in order for an an-
site ABC application to be approved. This it is legally sufficient if Fresh & Easy
Neighborhood Market (formerly known as Tesco Stores West., Inc::) shows either
public convenience or public necessity. It is notCRNI"
necessary to show both.
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7Rn" laff Avn q,,an n NA rinta CA U7 117
Second, it is only necessary to show public convenience or necessity where there
is an "undue concentration" of licensees in the census tract. The term "undue
concentration" (also referred to as "over concentration") is specifically defined in
Business and Professional Code § 23958.4 as simply a ratio of the number of
licenses in a census tract compared to the average number of licenses in
a County, as a whole. It does not mean that a particular census tract
necessarily has too many licenses for the needs of convenience of residents in
that tract.
"Over Concentration" also does not mean that the State, or anyone else, has
previously looked at this census tract and determined that it has suffered any
deleterious effects from the actual number of licenses existing; or that it will
suffer if a new license is issued. It merely provides a guideline for making such a
determination, in the form of determining whether in a particular situation, the
ABC license would serve the "public convenience or necessity".
Thus the fact that the census tract in which the Fresh & Easy Neighborhood
Market site is located is statutorily "over concentrated" does not mean that
selling a small amount of alcoholic beverages at a grocery store will have
adverse impacts. Rather, it simply means that either public convenience or
public necessity will be served by the sale of alcoholic beverages at this site.
BASIS FOR SUPPORTING OFFSITE ALCOHOLIC BEVERAGES SALES AS
AN INTEGRAL PART OF THE PROPOSED PROJECT.
1. The convenience of Fresh & Easy Neighborhood Market's Concept:
Tesco PLC (dba Fresh & Easy Neighborhood Market) is a premier international
supermarket chain. They are the fourth largest retailer in the world. Currently,
Tesco operates grocery stores in The United Kingdom, Ireland, China, Czech
Republic, France, Hungry, Japan, Malaysia, Poland, Slovakia, South Korea,
Thailand, Turkey, and most recently the United States of America. The stores
reflect the markets and communities they serve, but everywhere the goal is the
same; to bring quality, service, and choice at a competitive price, to the heart of
local neighborhoods.
Fresh & Easy Neighborhood Market thinks that fresh, high quality foods should
be accessible and affordable in every neighborhood. With clear aisles and simple
store layouts, Fresh & Easy Neighborhood Market makes it easy for customers
to find all of the products they need without all of the clutter of a traditional
supermarket.
Smaller than the traditional supermarket, Fresh & Easy Neighborhood Market
shops are easily accessible and offer everything from everyday staples to
gourmet items. Lots of fresh and nutritious food choices, including organic foods
and pre-prepared meals, make healthy eating convenient and affordable. In
particular, their own "Fresh & Easy" line of products have no added trans fat and
no artificial colors or flavors. The simple packaging and labels on their private
brand help clients see exactly what they are bringing home to their families.
Although alcoholic beverages comprise only a small percent of the store shelf-
space, it is nevertheless necessary in order to provide Fresh & Easy
Neighborhood Market customers with a complete range of products. Thus,
alcoholic beverages are a key element of the Fresh & Easy Neighborhood Market
concept. By providing an assortment of products, including alcoholic beverages,
readily available to the consumer at the Fresh & Easy Neighborhood Markets, the
public convenience of the area is certainly served. Without it, customers may be
obliged to travel to a range of retail outlets in order to complete their weekly
shopping.
2. A Good Neighbor:
Fresh & Easy Neighborhood Market thinks it is important to be a neighbor. That
is why they keep their stores, parking lots, and backyards clean and tidy, and
their deliveries are scheduled to minimize noise and disruption. That means no
night deliveries to stores with homes nearby and no driving through school zones
during student pickup and drop-off times.
Fresh & Easy Neighborhood Market also recruits their staff from the local area
and provides each of their stores with a budget for product donations. This way,
Fresh & Easy Neighborhood Market can make sure they are giving back to the
community and helping their neighborhood help itself.
3. Securily and Control:
Fresh & Easy Neighborhood Market is committed to taking all feasible steps to
address law enforcement concerns about the site. In addition, Fresh & Easy
Neighborhood Market has an extensive employee-training program and is a
responsible retailer of alcoholic beverages. Tesco PLC (dba, Fresh & Easy
Neighborhood Market) is a large corporate retailer with an international presence
and experience. It certainly has the resources to be a responsible retailer of all
types of goods and especially of alcoholic beverages. Moreover, the sale of
alcoholic beverages is not their primary purpose.
Fresh & Easy Neighborhood Market facilities are designed to provide a safe
environment for patrons and employees. To that end, the following design
elements are incorporated into our security plan:
• The storefront includes a significant number of windows so that the
interior of the store is visible from the exterior of the building.
10
• Additional security measures include adequate lighting levels both on the
interior and exterior of the store, employee supervision of the facility,
closed circuit video monitoring system with cameras located strategically
throughout the property, and careful window signage and landscaping
placement to avoid obstruction of visibility into and out of the facility.
Fresh & Easy Neighborhood Market understands the importance of maintaining
the appearance of a facility to both expanding their customer base and
preventing criminal activity. Fresh & Easy Neighborhood Market's property
maintenance program includes timely graffiti and litter removal, repairs to
structures and replacement of dead or diseased plant material, signs and curb
painting to encourage parking in designated parking spaces, and strategic trash
receptacle placement.
Fresh & Easy Neighborhood Market is committed to a neighborhood grocery
market that allows for safe family oriented shopping. This is achieved by placing
large windows along the front of the building so that passing motorists and
police have a direct view into the facility. Fresh & Easy Neighborhood Market has
integrated the following procedures:
1. A video camera is mounted inside the premises in such a position as
to be visible to patrons yet not accessible by reach.
2. Post in English and the predominant language of the facility's clientele and
a notice is placed therein that California state law prohibits the sale
of alcoholic beverages to persons who are under the age of twenty-one
(21) years and no such sales will be made.
3. Ensure no more than 33 percent of the square footage of the windows
and clear doors of an off-sale premises shall bear advertising or signs of
any sort, and all advertising and signage shall be placed and maintained in
a manner that ensures that law enforcement personnel have a clear and
unobstructed view of the interior of the premises, including the area in
which the cash registers are maintained, from the exterior public sidewalk
or entrance.
4. Post and maintain a professional quality sign stating "No loitering is
allowed on or in front of these premises."
5. Post and maintain a professional quality sign stating "No open alcoholic
beverage containers are allowed on these premises."
6. Restrict any pay phone from receiving incoming calls.
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7. The possession of alcoholic beverages in open containers or the
consumption of alcoholic beverages are prohibited on the premises.
8. The parking lot of the premises are equipped with lighting of
sufficient power to illuminate and make easily discernible the appearance
and conduct of all persons on or about the parking lot. Additionally, the
position of such lighting shall does disturb the normal privacy and use of
any neighboring residences.
9. Any graffiti or marks upon the premises are removed or painted over
within 24 hours of discovery thereof.
10. Litter is removed daily from the premises, including adjacent public
sidewalks and all parking areas under the control of the licensee.
11. All areas under control of the licensee are swept or cleaned, either
mechanically or manually, on a weekly basis to control debris.
In addition, Fresh & Easy Neighborhood Market recognizes the seriousness of
loitering, delinquency, crime, and underage drinking. Therefore, Fresh & Easy
Neighborhood Market has developed stringent operational standards and training
programs to teach techniques for the lawful selling of alcoholic beverages. Also,
Fresh & Easy Neighborhood Market requires all employees selling alcoholic
beverages to execute an ABC "Clerk's Affidavit" (ABG299) which contains a
review of ABC laws. In addition, Fresh & Easy Neighborhood Market is open to
operating conditions that the police department considers appropriate to
ameliorate any concerns that do exist.
It is important to note that since the store opening, there have been no incidents
related to alcohol or any other issues that have involved law enforcement.
4. The site will not result in an adverse impact on public health safe
or welfare.
Fresh & Easy Neighborhood Market's acquisition of this has had a positive impact
on public health, safety, and welfare. In fact, by providing a new, safe, and
convenient location to make grocery purchases, public health, safety, and
welfare is advanced by this site. The addition of selling alcoholic beverages has
not changed this. But beyond this, it should be noted that Fresh & Easy
Neighborhood Market has a very extensive training program for its employees to
help ensure that it is a responsible retailer of alcoholic beverages. There are oral,
written, and electronic video training aspects to Fresh & Easy Neighborhood
Market's training program to ensure that employees understand and implement
the procedures imposed by Fresh & Easy Neighborhood Market to comply with
ABC laws and regulations.
14
Fresh & Easy Neighborhood Market realizes that a healthy community translates
to healthy business, and is willing to consider any conditions the Planning
Department deems necessary in order to ensure that the public health, safety,
and welfare are protected. In short, Fresh & Easy Neighborhood Market is
committed to protecting the public health, safety, and welfare of the community,
and takes appropriate steps to do so. The sale of alcoholic beverages on the site
does not threaten these important concerns.
5. Community Service and Investment:
Fresh & Easy Neighborhood Market is committed to improving the communities
they operate within. Initially, revenues for the construction of this project,
including all applicable city permits and fees, have filtered into the city.
Moreover, Fresh and Easy Neighborhood Market's investment in the site has
increased the property tax base as well as sales tax revenue.
CONCLUSION
Parent Company, Tesco PLC has been a responsible retailer of alcoholic
beverages for over 70 years. Permitting the upgrade of beer and wine to full
liquor sales at this site will not change this, but will 'round-out' Fresh & Easy
Neighborhood Market's concept at this site, providing customers the added
convenience to make purchases of alcoholic beverages along with their weekly
grocery needs. Fresh & Easy Neighborhood Market, by reason of its location,
character, manner, and method of operation, merchandise, and potential
clientele, has served the community of Palm Springs and Fresh & Easy
Neighborhood Market respectfully requests that they are granted a finding of
Public Convenience for the Fresh & Easy Neighborhood Market alcoholic
beverage license upgrade.
Thank you for your attention to this matter.
Sincerely,
/v
Rhonda Kindle
For Fresh & Easy Neighborhood Market
13
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