Fresh and Easy license decision may lead to changes

The county Planning Commission hearing on the liquor license for the Fresh and Easy Market in Fallbrook was followed by two other liquor license hearings within the ensuing two months, and the Planning Commission’s decision to overturn administrative denials in all three cases has created the possibility of amending the criteria to provide a determination of public necessity or convenience.

“If we’re going to have a set of standards, we should either reevaluate these standards or stand by them,” said Planning Commissioner Bryan Woods during the October 5 hearing on a determination of public necessity or convenience for a Longs Drug Store in Alpine.

The acting director of the county’s Department of Planning and Land Use noted that some county standards were necessary but felt that a change may be warranted. “While I’d personally like to see some refinement in the county’s policy, I think the process is working,” Eric Gibson said. “I think this standard is set where it is to ensure that the county has opportunity for input.”

Although much of the discussion at the three hearings focused on the difference between a grocery store or drug store and a liquor store or bar, the issue of concentrating commercial businesses in a specific area also played a part in the planning commissioners’ decisions to overturn staff recommendations.

A determination of public necessity or convenience does not guarantee that the state Alcoholic Beverage Commission (ABC) will issue a liquor license for off-sale consumption, but the finding of public necessity or convenience allows the ABC to consider the license application.

The state’s Business and Professions Code stipulates that if the state Alcoholic Beverage Commission determines that an “undue concentration” exists in the vicinity of the application premises the license is to be denied unless the local jurisdiction determines that public necessity or convenience would be served by issuing the liquor license.

Board of Supervisors Policy I-121 stipulates the criteria to be used in a determination of public necessity or convenience. The Sheriff’s Department must determine that approval or conditional approval will not negatively influence criminal activity including loitering, vandalism, public drunkenness, illegal drug use and sales, theft and violent behavior.

The county’s Department of Planning and Land Use must determine that the retail outlet is compatible with community character and consider factors such as the number and proximity of other establishments selling alcohol, proximity to schools and playgrounds or other facilities serving young people, proximity to residential neighborhoods and whether the store provides a wide range of desirable goods and services or a unique type of goods or services.

The county can only approve a resolution of public necessity or convenience and cannot impose conditions upon a liquor license, although in each of the three cases conditions proposed by the applicant were submitted to the Planning Commission.

John Riess, who was the sole dissenter in the Planning Commission’s 6-1 vote for the Alpine determination, was absent August 10 when the Planning Commission voted 5-0 to approve a determination of public necessity or convenience for the Fresh and Easy Market in Fallbrook. Woods was the other absent commissioner August 10.

On August 24 the Planning Commission approved the necessary determination for the Fresh and Easy Market site in Spring Valley. The August 10 hearing about the Fresh and Easy Market concept and information about conditions offered for the liquor license for both the Fallbrook and Spring Valley sites led to a smoother hearing on the Spring Valley request.

Attorney Bruce Evans, who represented Fresh and Easy in the two August cases, also represented Longs in their quest for a liquor license. Fresh and Easy worked with the Sheriff’s Department to develop a list of proposed conditions for both the Fallbrook and Spring Valley stores, and Evans used those conditions as a base when he worked with the Alpine substation.

The Sheriff’s Department and the Alpine Community Planning Group both opposed the liquor license prior to the presentation of conditions, but with the conditions the Sheriff’s Department adopted a position of neutrality and the planning group voted to support the determination.

The Fallbrook census tract including the Fresh and Easy site is allowed four liquor licenses but currently includes seven. In April an off-sale liquor license was denied for a mini-mart in the 1000 block of South Main Avenue, and on June 19 the Department of Planning and Land Use denied not only the Fresh and Easy liquor license request but also an application for the Shell station in the 1200 block of Main.

The determination that public convenience or necessity would not be served by a liquor license for Fresh and Easy was appealed to the Planning Commission. The other two denials were not appealed.

The Fallbrook Chamber of Commerce noted during the August 10 hearing that the community plan focuses commercial operations near Downtown Fallbrook, and Evans and other supporters also noted that the ABC formula for the number of licenses in a census tract was based on population.

“There is a very good reason that a commercial zone like this is going to end up exceeding this ratio,” Evans said August 10. “That’s where you put the shopping centers, and that’s where you put the alcohol.”

In 2003 the Planning Commission approved the Fallbrook Economic Revitalization Plan, which includes a zoning element, and on August 10 Planning Commissioner Leon Brooks noted that Fallbrook was a leader in the town center concept the county is promoting in General Plan 2020. “I have to take exception to the census tract rule,” he said.

Both proponents and opponents of the Fallbrook liquor license cited State Street in Santa Barbara, where approximately 100 liquor licenses exist in a specific commercial area. Jack Wood, who spoke as an individual rather than as a Fallbrook Community Planning Group member, feared that the resolution of public convenience or necessity will set a precedent.

“The heart of this issue is the number of liquor licenses,” Wood said.

Harry Christiansen, who also spoke as an individual rather than as a Planning Group member, cited the denial of the other two applications. “The rule has been there, and there’s something to be said for the uniform application of the rule,” he said. “There’s nothing in the rules that says you do it for something you like and you don’t do it for something you don’t like.”

During the Alpine hearing, Planning Commissioner Adam Day noted that the census tract limit only triggered the requirement for a determination of public necessity or convenience. “It’s not a hard and fast rule,” he said.

Peter Whittingham of Curt Pringle and Associates mentioned during the Alpine hearing that census tract limits were based on population rather than zoning. “All that does is take to the next level a discretionary review,” Whittingham said. “What you also have in play here is a bad policy at the county.”

A change to Board Policy I-121 would require county staff review before being presented to the Board of Supervisors, although every Board of Supervisors policy automatically undergoes periodic sunset review.

Although an ABC protest has been filed for the Fallbrook liquor license application and a hearing likely won’t take place for several months, the construction work on Fresh and Easy site in Fallbrook is expected to be complete in late January.