SB Approves Selling Liquor At Gas Station Beside The Freeway

Over the objection of Community Development Director Mark Persico, the San Bernardino City Council on a 6-to-1 vote Wednesday night approved the development of a convenience store lying at the confluence of a residential neighborhood on the city’s west end and the I-215 Freeway, and licensed it to sell hard liquor.
ACAA, LP and AHD, LP, two corporate entities associated with Alex Mucino, sought permission from the city to construct a gas station/car wash/convenience store on two parcels comprising roughly .75 acres at 841 South Inland Center Drive upon which a vacant liquor store was recently demolished. Approval of the project required a general plan amendment to change one of the parcels from single family residential zoning to commercial and the zoning district to be changed from residential suburban to commercial general for consistency across the project site. The project is to consist of a service station with six fuel pumps, an express drive-through car wash and a convenience store. The store is to be built using a retro-industrial architectural style scheme.
Mucino insisted on the city allowing the sale of all order of alcohol to take place at the store, as he has already obtained from the California Bureau of Alcohol and Beverage Control a Type 21 license, which allows for the sale of beer, wine and hard liquor at that location.
City staff, including Persico, Planning Division Manager Oliver Mujica and Associate Planner Chantal Power, took the position that granting the project proponent a Type 20 alcohol permit, which allows the sale of beer and wine, would give the gas station/convenience market the ability to be competitive in the market and would, Persico said, “address community concerns and those expressed by the planning commission over the concentration of alcohol beverage sales licenses in the city.” Persico called giving go-ahead to the project based upon a Type 20 permit “a balanced approach. A Type 21 license would allow the sale of not only beer and wine but distilled alcohol.” Persico said he and staff “felt that type of license should be limited to supermarkets and larger retailers.”
The proposal was considered by the planning commission, which is chartered as a nine-member panel but which currently boasts seven members. Only five members were at the hearing in which the project was considered. The planning commission cannot make a positive recommendation on a general plan amendment with fewer than five members endorsing it. The five commission members hearing the matter split 3-2 in favor of granting the general plan amendment and conditional use permit, with two dissenters in opposition because of the Type 21 license associated with the application. Staff in its recommendation to the city council called for approval of the project with a Type 20 alcohol permit and denial of the Type 21 license.
Councilman John Valdivia, in whose Third Ward the project is located said, “I will be supporting the Type 21 license,” remarking it had been “vetted through the Neighborhood Association Council in my ward.” He made a motion to reverse the recommendation from staff and approve the public convenience store project with the Type 21 license included. This was immediately seconded by Councilman Henry Nickel. Valdivia continued, saying “The local neighborhood association has been apprised of the situation. Many local neighbors have been informed. This is a fine establishment. I’ve been completely aware of the situation. And I’d like to move that before us tonight.”
Councilman Jim Mulivihill, however, was not sanguine about selling whiskey, vodka, tequila, gin, bourbon, scotch, schnapps and other hard distillations out of an off-the-freeway-and-then-back-on venue.
“As a general principle, having the sale of hard liquor, distilled beverages, in a gas station or a service station situation is generally frowned down upon,” said Mulvihill. “The idea of selling beer and wine makes you stop and think also, again being in a service station situation, but as a general rule having hard liquor sold in that kind of a situation is just…” his voice trailed off before he continued. “If you are going to allow it here in this situation, then you need to allow it in all situations. It may be that this individual carries on a good business and he’s got security guards and so forth, but the point is: in terms of equal protection, if you are going to allow it in this situation, it is very difficult to deny it in similar situations subsequent to this. Up to this point it has been regular just to deny the Type 21 license with distilled spirits, hard liquor, in situations where you have a service station with a convenience store. I would argue against what you are proposing to approve, the Type 21 license. I would prefer to stay with just the beer and wine.”
Nickel indicated that he saw the operation’s location next to a freeway in a positive rather than a negative light. “I understand and I respect councilman Mulvihill’s approach to this,” he said. “I take an opposite view. I think given the location of this particular facility adjacent to a freeway, one side bordered by a heavily-traveled freeway section – and getting to that idea of highest and best use; obviously there is sales tax to be generated here – I actually have the opposite view. I don’t know if this is a policy decision in terms of grocery stores versus convenience stores versus gas stations. Is this a staff decision?” he asked.
Persico said the city’s development code allows an applicant to apply for either a Type 20 or Type 21 license with such uses. “Whenever these projects come up, convenience stores are treated differently than full grocery stores, given the city’s history of overconcentration and problems with smaller liquor stores,” Persico said. “Given all of the concern we’ve heard from the planning commission as well as the community, I as the director have implemented the policy that we will not recommend to the planning commission approval of a Type 21. So, this is the third application that has come through in the four years that I have been here. The two previous applicants did revise their applications from a 21 to a 20. This applicant, like all applicants, has the ability to go to the planning commission and state their case. This applicant did do that. The planning commission couldn’t come to a consensus.”
Nickel said, “It is to some degree discretionary. There is sound basis on both sides, but I think given what we’re looking at with this facility, where it is located, given that fact if we are going to sell liquor in the city – we’re going to sell it at liquor stores – why not sell it in a location where it is going to have the least detrimental impact? Grocery stores tend to be located around homes and neighborhoods. I’ve seen the effect. I have one down the street from me. I know the effect that has on the immediate surrounding neighborhood. So part of me says I would prefer it be in a location like this, away from our residential areas so people aren’t engaging in consuming or purchasing in areas that are adjacent to homes potentially. I can see both sides.”
Nickel said the benefit of allowing hard liquor to be sold out of that location was it would produce sales tax revenue from those passing through the city on the freeway.
Councilman Fred Shorett noted that there was residential land to the west of the project site and there was a school, Urbita Elementary, located nearby. He brought up that an existing AM PM minimart across the street was limited to selling beer and wine. He inquired about how saturated the area was with liquor stores. Shorett said he wanted to know whether the project would go forward without a Type 21 license.
Associate Planner Chantal Power said that within the census tract in which the proposed project is located under city regulations two enterprises with off-sale liquor licenses are permitted, but at present there are 13 active liquor licenses, three of which are Type 21.
Alex Mucino, the applicant said he had obtained the Type 21 license approved specifically for the Inland Center Drive location as part of a lottery process from the California Bureau of Alcohol Control. Asked by Shorett if he would proceed with the project if the Type 21 license at that location were not given final approval by the city council, Mucino said. “I don’t think so. The reason we have applied for the Type 21 is we have to remain competitive in this competitive business environment.” He said “Supermarkets are also becoming gas stations. So we have to compete with them. We have to stay ahead of the curve. Before deciding on building this project we considered other options as to what to put there. Based on the location, we felt the three uses we are proposing here on one site – the car wash, gas station and a convenience market – are more appropriate, and we thought this was a better service and best use for the community and surrounding area. I don’t agree with staff indicating that this type of use or the sale of alcohol should only be kept in supermarkets. The nearest supermarket to this location is in Colton. Would you want your business to go to Colton? We offer convenience.”
Mucino said he and his partners were making an investment of $4 million in the project. He pointed out, “We are 525 feet from an elementary school. The State Department of Alcohol Beverage Control allows a Type 20 or Type 21 outside of 500 feet from a elementary school. The AM PM across the street is less than 400 feet from that elementary school. So, we’re further. They serve as a buffer to us, for our use.”
Police chief Jarrod Burguan told the city council that liquor stores in the city have proven “problematic,” some more than others.
At Councilman Valdivia’s suggestion, Mucino said he would be amenable to limiting the sale of alcohol from the store to those hours between 6 a.m. until midnight. At Councilman Shorett’s urging, Mucino committed to not marketing alcohol in any container smaller than a fifth, or one containing 25.6 fluid ounces or 750 milliliters. This practically means that the market proposed at 841 South Inland Center Drive will not be allowed to sell liquor in a European spirit bottle holding 23.7 fluid ounces or 700 milliliters; pints, holding variously 12.7 ounces or 375 milliliters; a shoulder, holding 11.8 ounces or 350 milliliters; a half pint, holding 6.8 ounces or 200 milliliters; nor a miniature, holding 1.7 ounces or 50 milliliters.
Amelia Lopez, the president of the city’s Neighborhood Association Council who rushed into the council chambers as discussion of the item was drawing toward a close, said she had been alerted to the pending approval of the project by members of the council who were watching the council meeting on television. She took issue with Valdivia’s assertion that the Neighborhood Association Council had endorsed the project. “The Neighborhood Association Council does not approve liquor licenses…” she said, at which point she was interrupted by Valdivia.
“That’s not what I said…” Valdivia intoned.
She immediately continued, “I don’t know if you were referencing San Bernardino…”
Again, Valdivia cut her off, “No.”
“Valley College…” the woman continued.
“What I suggested, Miss Lopez,” Valdivia said, speaking over her once more, “was the neighborhood association, my local neighborhood association council, of which I am a member…”
Lopez then interrupted him, asking, “Which is which one?”
“Well, it’s the joint one,” Valdivia said, “which would be the Valley College Association, along with the Amtrak Neighborhood Association Council. They’ve been apprised of it. They understand it.”
Lopez said, “I think you could say they are not in opposition, but I was told – I got a couple of calls – that it was stated Neighborhood Association Council, which is made up of all the presidents, [supported the project] and we don’t endorse alcohol and so forth. To have the NAC approving alcohol, that’s not us.”
Shortly thereafter there was a call for a vote on the matter and the project was approved, with the Type 21 license, 6-to-1, with Mulvihill in opposition.
Mark Gutglueck

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