Report Prepared by: Michael Hren, Principal Planner, Development Services Department
Title
SUBJECT: Land Use Determination #21-01- Finding of Public Convenience or Necessity for 7-Eleven Gas Station and Convenience Market Located at the Northeast Corner of Yosemite Avenue and G Street as Required by the Department of Alcoholic Beverage Control to Issue a Type 20 Alcohol License Which Allows the Sale of Beer and Wine
REPORT IN BRIEF
Considers making a Finding of Public Convenience or Necessity (PCN), as required by the Department of Alcoholic Beverage Control (ABC) to issue a Type 20 alcohol license (off-sale allowing the sale of beer and wine) for 7-Eleven Gas Station and Convenience Market located at the northeast corner of Yosemite Avenue and G Street.
RECOMMENDATION
City Council - Adopt a motion approving the Finding of Public Convenience or Necessity to allow 7-Eleven Gas Station and Convenience Market, located at the northeast corner of Yosemite Avenue and G Street, to obtain a Type 20 license for off-sale allowing the sale of beer and wine (Option #1 as shown in the “Council Action” section of this Administrative Report).
Body
ALTERNATIVES
1. Approve, as recommended by staff; or,
2. Approve, subject to modifications as conditioned by Council; or,
3. Deny; or,
4. Refer back to staff for reconsideration of specific items as requested by Council; or,
5. Continue item to a future City Council meeting (date and time to be specified in the motion).
AUTHORITY
Business and Professions Code Section 23817.7 and 23958.4.
CITY COUNCIL PRIORITIES
Not applicable.
DISCUSSION
Section 23817.5 of the Business and Professions code permanently established a moratorium on the issuance of off-sale beer and wine licenses (Type 20) in cities and counties where the ration of Type 20 licenses exceed one for each 2,500 inhabitants. The City of Merced is subject to this moratorium. Pursuant to Section 23817.7 of the Business and Professions code, California’s Bureau of Alcohol Control (ABC) can accept new applications for Type 20 licenses where the premises is not located within a Census Tract that there is not an overconcentration, provided that the designated governing body (in this case the City of Merced), determines that public convenience or necessity (PCN) would be served by the issuance of such a new Type 20 license. As shown at Attachment 4, the subject site is located within Census Tract 18.01. Per ABC, Tract 18.01 is permitted to have up to 3 licenses for Off-Sale allowing the sale of Beer and Wine. It currently has zero of those licenses existing in the Census Tract. Thus, the proposed premises are not located within an overconcentrated Census Tract, and a PCN would allow the business to operate as proposed. Factors that may be used to determine a Finding of “public convenience or necessity” are found at Attachment 1. Staff has reviewed this request and are recommending approval.
The City Council may also deny the Finding of Public Convenience or Necessity but should make one or more specific findings to support the denial. Such findings might be based on the number of businesses in the area (though not necessarily the Census Tract) already selling alcohol, the number of crimes in the area, the proximity to residential uses, the type of business or operation, or other factors the City Council determines would make the issuance of an ABC license detrimental to the community.
7-Eleven
7-Eleven is requesting approval to sell beer and wine for off-site consumption (Type 20 Alcoholic Beverage Control License) at a gas station and convenience market to be located at the northeast corner of Yosemite Avenue and G Street. The site has been approved for a Conditional Use Permit (CUP) for this use at the January 20, 2021 public meeting of the City of Merced Planning Commission (CUP #1251). This CUP is conditional upon the acquisition of a Finding of Public Convenience or Necessity from City Council. The CUP request at the time envisioned a Type 21 ABC license which would also have permitted sale of distilled spirits; the change to a Type 20 license does not significantly impact the approval.
As shown on the floor plan, alcohol would be stocked on shelves throughout the convenience market. Beer would be located within the coolers. Wine would be stored on shelves. The subject site is located at the northeast corner of Yosemite Avenue and G Street.
Surrounding and Sensitive Uses
The proximity of a business to residential uses, schools, churches, hospitals, or other “sensitive uses” may be cause for ABC to deny the issuance of a license. The map at Attachment 6 shows the location of the “sensitive uses” in the area. The subject site is surrounded by retail uses to the south, Merced College to the west, vacant land and the Mercy Medical Center to the north, and residential uses to the east. Residential uses (single-family homes) are located 80 feet east of the subject site. The nearest sensitive use (besides residential properties) is Cruickshank Middle School, which is located approximately 960 feet away from the subject site with the main entrance to the school being approximately 1,288 feet away from the subject site, at the northeast corner intersection of Dominican Drive and Mercy Avenue. An approved Vesting Tentative Subdivision Map and pending Final Map application would modify the site such that it sits on a parcel that is approximately 375 feet away from the residential properties to the east, approximately 1,800 feet from the property line of Cruickshank Middle School, and over 2,000 feet from the main entrance to the school building. The subject site is surrounded by vacant parcels, arterial roads, and a proposed extension of Sandpiper Avenue. These barriers would reduce the impact that this development would have on the residential neighborhood, the medical center, and other surrounding “sensitive uses”. Given the context of the site, the approved Vesting Tentative Subdivision Map and the pending application for a Final Map which would increase the distance between the boundaries of the parcel on which the proposed activities will take place and surrounding/sensitive uses, staff believes that approval of this request should not have a significant impact in the surrounding area.
Information of Fact
In order for the City Council to make their decision regarding a Finding of Public Convenience or Necessity, staff is providing information of fact for the City Council to consider. Based on the information provided in Attachment 7, staff is recommending approval of this request. Approval of this request would authorize the Director of Development Services to notify ABC of this determination.
According to the Merced Police Department, this area had 369 incidents within 500 feet of the subject site (Attachment 8) between 12/01/2019 and 11/30/2020. As shown on attachment 9, a large number of the incidents occurred at the intersection of Yosemite Avenue and G Street. These incidents were mostly traffic related. Typically, particular attention is given to incidents involving public drunkenness, the illegal sale of narcotics, disturbing the peace, and disorderly conduct when considering the issuance of an alcohol license, pursuant to Merced Municipal Code (MMC) 20.44.010(B)(3). Below is a breakdown of similar types of incidents within 500 feet of the site between 12/01/2019 and 11/30/2020. Though MMC 20.44.010(B)(3) does not specify drunk driving as an item of particular attention, it is similar enough to “public drunkenness” that it is presented below for consideration.
Public Intoxication- 1 Incident
Assault- 1 Incident
Municipal Code Violations- 35 Incidents
Narcotics Violations- 1 Incident
Disturbances- 46 Incidents
Drunk Driver- 4 Incidents
These 88 incidents of particular attention equaled 0.1% of the overall calls for service within the City during the review period, which were 72,743. Based on the foregoing data, staff supports this request for a Finding of Public Convenience or Necessity.
Applicant’s Reasoning to Support Public Convenience or Necessity
The applicant, 7-Eleven, has provided information regarding reasons for supporting a Finding of Public Convenience or Necessity. More detailed information can be found in the letter provided at Attachment 7.
Council Action:
Option #1:
After considering all the facts provided and the factors that may be considered for determining public convenience or necessity, if the City Council finds the public convenience or necessity would be served by the issuance of an off-sale license to sell beer and wine, the City Council should authorize the Director of Development Services or their designee to draft a letter of support to ABC for the issuance of a Type 20 license based on the reasons described in Attachment 7.
Option #2:
If the City Council determines public convenience or necessity would not be served by the issuance of a Type 20 license (off-sale beer and wine) at this location, the City Council should direct the Director of Development services or their designee to draft a letter opposing the issuance of this license. Specific reasons/findings for denial would need to be cited in the City Council motion.
IMPACT ON CITY RESOURCES
No appropriation of funds is needed.
ATTACHMENTS
1. Factors in Determining Public Convenience or Necessity
2. Location Map
3. ABC License Types
4. Census Tract Map
5. Floor Plan
6. Sensitive Uses Map
7. Letter from Applicant
8. Incidents within 500 feet of Subject Site
9. Planning Commission Resolution