Final Form 510a submitted to ABC on Sep. 29 2017

For your reference, here is the final protest form I submitted to CA Alcoholic Beverage Control, about the transfer of the liquor license to the new tenants at 661 Divisadero. I recommend you do not copy my arguments word for word, but feel free to use them to help figure out how to state your own concerns.

[attached sheets:]

GROUNDS FOR THIS PROTEST

1.) ABC should not license this premises to serve hard liquor until the barroom on the western side of the building is renovated so that the exterior Grove St. wall is made into a solid, soundproofed wall, containing no moveable or openable doors or windows, instead of the current acoustically permeable, openable garage doors that, even when closed, are presently the only thing isolating the inner noise of this barroom from the adjacent Resident-zoned residences. I will argue that this restriction on enclosing the retail serving area places no greater restriction on the applicant than every single other liquor-serving establishment in the neighborhood already successfully operates within — or, in fact, no greater restriction than the larger dining room on the east end of this very same establishment operates within — and additionally, that to issue a liquor license without requiring these renovations would violate both the spirit and letter of state and city law.

2.) ABC should disallow outside seating/alcohol service on the Grove Street business frontage. This is a quiet residential side-street, the narrowest and least-trafficked side street in the Divisadero corridor, and well-sheltered from the noise of Divisadero by structures on both corners, including a shipping container installation specifically designed by the owner of 4505 Meats to suppress noise from traveling up Grove Street, then further sonically insulated the space of a parking lot behind the shipping container.

The last application for outside seating at a restaurant operating at 661 Divisadero, in 2015, was met with widespread and impassioned opposition by the neighborhood, generating an extraordinary 28 handwritten neighbor letters in opposition, which are included in the “Supporting Documents” section below.

BACKGROUND

A currently-existing barroom on this property, under the previous licensee, has a documented history of disturbing nearby neighbors inside their homes, documented through numerous neighbor complaints to police, to the SF Department of Health, the SF Appeals Board, and the SF Planning Commission. This bar room is situated at the west end of the building, in a large former 3-bay commercial garage sitting directly on the border of the Residential zone, physically adjacent to residential homes, mere feet from residential bedroom windows. The 30 foot long garage doors are made of individual pieces of single ply plywood, with gaps and hinges, and are utterly insufficient to isolate surrounding homes from the noise of a bar full of patrons, even when they are closed, and have been kept as part of the bar room.

On November 2, 2016, in a city hearing, SF Zoning Administrator Scott Sanchez ordered the previous licensee operating on these premises to hire an acoustician within 30 days to evaluate noise abatement measures to resolve the nuisance caused by the garage barroom’s noise intruding into neighboring homes. Instead of getting this evaluation, that business ceased operation within 2 weeks, without ever making any noise abatement changes to the premises. To this day, the premises of the garage bar still exists in the exact form that interfered with neighbors’ quiet enjoyment of their homes.

Nothing but replacing these moveable, acoustically insubstantial doors with a solid wall will provide adequate acoustical insulation to keep the noise of a packed crowd patronizing a full bar from intruding into neighboring homes mere feet away.

SUPPORTING ARGUMENTS

Arguments why the license should not be issued until the garage doors are renovated into a solid wall to contain the interior noise of a full bar:

1. It’s a bad precedent to allow a full bar, serving hard liquor, with the interior retail serving space directly open to public street and surrounding homes. 

There is no other establishment with a license to serve hard liquor anywhere in this neighborhood that has any exterior windows that move or open at all — other than mandatory entrances and emergency exits, every single other nearby full-service bar is completely enclosed within a soundproof, fully contained indoor space. We only want this new restaurant to do exactly as every single other successful local liquor-serving restaurant and bar already does.

In fact, this same 661 Divisadero’s larger serving area, the large bar and dining room occupying the entire eastern end of the building, has absolutely no openable windows or other openings to the public street except the main customer entrance. Surely, if the applicant can operate the main room of their establishment entirely indoors, enclosed, and acoustically isolated from the public street,  it isn’t an unfair burden to ask they simply do the same in the secondary room of the same building that is directly adjacent to R-zoned residential dwellings.

With regard to the outdoor seating component of the license: there is not a single establishment with a full bar, licensed to serve hard alcohol, with outdoor seating, anywhere in the neighborhood. So allowing outdoor seating would also create a bad precedent for this neighborhood.

2. We have already seen that the presence of alcohol being served in a space open and exposed to the public created an atmosphere of lawlessness and disorderliness which extended far beyond the bounds of that one property, up and down a quiet residential side street.

Encouraged by the barroom atmosphere extending out onto the street, people drank from open alcohol containers, littered, gathered to smoke cigarettes or marijuana, and urinated in doorways, up and down the block. This behavior, widespread at the time, hadn’t been anywhere near as bad a problem before La Urbana started serving alcohol in an open-air, publicly-exposed barroom next to our homes, and has not been a problem since they ceased operation in November 2016.

3. The interior of the garage barroom had a large sound system and large-screen tv, creating a heightened noise level during nighttime dance parties and daytime crowds of inebriated people shouting at ball games which were broadcast unimpeded out through the openings and into the surrounding neighborhood’s windows. Essentially, the street and surrounding windows became a private amphitheater for the use of the bar at 661 Divisadero.

There’s nothing to say a projection TV or large sound system won’t be used again in that space. These large crowd-sized entertainment devices aren’t appropriate to use in an unsoundproofed, acoustically public space, especially sitting right on the border of the residential zone mere feet from R-zoned bedroom windows. These sorts of loud, large-scale crowd entertainment devices, which encourage people to be noisier, should always be required to only be used indoors in completely indoor enclosed spaces, and especially so when accompanied by hard liquor service. And most especially so when located directly adjacent to R-zoned residences.

4. Given all the above, California state law forbids this property from being licensed under current conditions. The property is in violation of Rule 61.4, Chapter 1, Title 4 of the California Code of Regulations, which states that a liquor license cannot be issued or transferred to a business within 100 feet of residences unless “the applicant establishes the operation of the business would not interfere with the quiet enjoyment of the property by residents.” Therefore, within 100 feet of residences, the transfer must be denied unless the applicant proves that granting the license would not interfere with that quiet enjoyment of the neighbors inside their homes. Unfortunately, nothing has been done to prove this, and there is considerable concrete evidence that this interference is not just possible, but likely, unless changes are made which have not yet been.

The new applicant has spoken with neighbors, and has been willing to consider the complaints, but has not committed to the changes necessary. Last I heard, he was still discussing putting openable windows in the wall where the current garage doors are, which would still provide direct acoustical passage from bar interior, where hard liquor is being served to the surrounding bedroom windows within 100’. The applicant clearly has not established “the operation of the business would not interfere with the quiet enjoyment of the property by residents” as required by Rule 61.4, Chapter 1, Title 4, California Code of Regulations.

It should be noted that the western wall of 661 Divisadero falls exactly on the border between the Neighborhood Commercial Zone and the Residential Zone, and the residential buildings directly adjacent to the garage barroom are fully within the Residential zoning district, and therefore should receive even more consideration with regard to noise generated in proximity to them.

As to the outdoor component of the license, obviously, outdoor alcohol service would clearly contradict establishing non-interference with quiet enjoyment of surrounding homes.

5. Simply requiring the licensee to keep the ambient noise below a certain level, while leaving the interior of the bar structurally openable to the public street through moveable, openable windows of any sort, would not be enough, because it puts the continual and undeserved burden of policing the noise levels onto the neighbors. As long as the licensee still has the option of operating their barroom exposed openly to the street, it becomes the neighbors’ responsibility to have to stay on guard, police the noise level themselves, and filing complaints, over and over again, in an often vain attempt to bring enforcement.

We found in the past that as long as the garage doors are capable of being reopened in any way, then whenever the licensee are ordered to be quiet, they will comply for a short while, and then, the problems gradually begin again, and it falls again upon us, the neighbors, to start again from scratch with a new round of complaints. The requirement for the noise potentially accompanying hard liquor service to be completely enclosed and indoors should be structural and permanent, not rely on placing the responsibility upon the neighbors to keep filing complaints to try to get somebody to do something about it on a per-incident basis.

6. SF city codes require it. SF Planning code §221 says that in Commercial districts, Assembly or Entertainment nightlife uses are only permitted “when conducted within a completely enclosed building; provided, (1) that incidental noise is reasonably confined to the premises by adequate soundproofing or other device, and (2) that no portion of a building occupied by such use shall have any opening, other than fixed windows and exits required by law, within 50 feet of any R District.

These huge garage door openings are less than 5 feet from the R district – far less than the 50 feet specified in this ordinance. And that ordinance applies to Commercial zones, where noise rules are more tolerant than in Neighborhood Commercial districts like the Divisadero corridor.The current single-ply garage doors, even when fully closed, are not sufficient soundproofing to keep impede the interior noise of a full barroom from the surrounding homes. They must be sealed and reenforced with adequate soundproofing, in compliance with this ordinance.

7. The problems created by even minor ongoing disruption audible inside the surrounding homes have been continually and unfairly minimized by almost everyone not directly affected, including the officials whose responsibility it is to prevent such problems and now that they have been recognized and documented repeatedly with neighbor complaints and city hearings, this license transfer presents an opportunity to stop ignoring them, address them now, and address them permanently.

Remember the “Chinese water torture”? It’s just an occasional drop of water on the forehead. Who could ever complain about a drop of water, right? Anything, even something that is completely innocuous on the first, tenth, or hundredth time, can become genuine, banned-by-the-Geneva-Convention-style torture after enough exposure, and just because your limited exposure to it doesn’t bother you doesn’t make it any less so to those who must suffer it endlessly.

That was the problem with the continual audible disruptions from the previous 611 Divisadero occupants’ open-air garage bar for those of us who had to deal with it day after day, night after night. Reliably, officials who came to check on the situation said, “This doesn’t sound that bad to me”, then got to go home to their own homes, free of having to hear the constant irritant, continually without a moment’s let-up for hours on end, every single day and night of their lives thereafter.


Having seen, and documented in official city agency hearings and complaints, the results of not giving sufficient attention to the effects on surrounding homes of leniency in this regard, ABC should include license restrictions ensuring that the garage not just should not but cannot be used in a way that alcohol-fueled behavior can impact the residents of the surrounding neighborhood.

SUPPORTING DOCUMENTS

1.) Neighbor complaint letters about garage bar being open to the public street and surrounding neighborhood. In 2015, the former licensee at 661 Divisadero filed an application for outdoor seating. This provided the nearby residents with a chance to enter their complaints about the garage bar into the official city record. 28 neighbors responded with letters of complaint, many of which specifically the disruption to the surrounding local homes and neighborhood and the spillover into the surrounding neighborhood of disorderliness and criminal behavior due to the lack of a soundproofed barrier between the garage bar and the street. A PDF of those letters have been included as a separate attachment with this PDF, and is also available for download from <https://www.dropbox.com/s/tcq6yb02tz564up/661DivisaderoNeighborComplaintLetters.pdf?dl=0> . Nothing like the public nuisance documented by these complaint letters must be allowed to occur again.

2.) Videos. Here are videos documenting the interior noise from the garage bar inside neighboring residences through closed windows.

  a.) Typical nuisance noise level of 661 Divis garage barroom inside nearby residence even with all windows tightly sealed: https://youtu.be/MQIoM1ePj9I

b.) Typical nuisance noise level of 661 Divis garage barroom inside neighboring bedroom on 8/13/15 at 10:30 PM: http://youtu.be/lCSm1oNZX_A

c.) Typical late night: 661 Divis drunk patrons loiter on the dark sidewalk being loud & obnoxious at 11:30 pm, showing how disorderly atmosphere created by the publicly-exposed barroom lingers even after closing time: http://youtu.be/dtQlE7Kt0_A

A note about the audio in these videos: unfortunately, these were all recorded on a an iPhone, which has built-in noise cancellation, resulting in faraway sounds being recorded much quieter in the videos than in real life (as documented at http://pocketnow.com/thought/iphone-4-noise-cancellation-demonstration and http://www.ifixit.com/blog/2011/05/17/unveiled-audience-powers-iphone-4s-impressive-noise-cancellation/.) So please understand, these videos can only give you a reduced idea, the actual noise levels in the room were necessarily much louder than the phone’s hardware recorded.

3.) Photos documenting how out of control the situation can get: http://www.groveresidents.org/evidence0616/#B While a lot of what is seen in these photos the result of the garage doors being fully open, which is no longer possible, the fact that as much flagrant violating activity (widespread open container violations, noise nuisances, health code violations) occurred in and around the premises as is documented in these photographs, despite 3 years of neighbor complaints to ABC, the SF Health Department, SFPD, and the Planning Commission, illustrates the difficulty in getting enforcement against even very flagrant violations after the license has been issued.

It is for this reason that we ask ABC to act to preempt the possibility of any potential violation by requiring the liquor-serving retail space to operate fully indoors, enclosed and soundproofed as part of the licensing process, before any potential public nuisance violations have a chance to occur, sparing we neighbors the possibility of having to engage in yet another years-long futile battle to get already-overburdened government agencies to enforce the law after the fact.

I’m sure these photos and the above videos will convey our frustration and deep desire to avoid even the faintest semblance of this nuisance recurring.

FINAL NOTE

I understand that this new applicant wants to work with the neighbors, and I believe his business likely won’t cause the problems that the former restaurant and bar in this location did. However, we presently have no real assurances at all, and there is no reason the terms of his license should not be work for both him and us when this protest asks no more than that the applicant be required to serve hard liquor in a completely enclosed, indoor, soundproof space, exactly as every single other successful restaurant and bar serving hard liquor in this neighborhood already does. This requirement would not in any way prevent the applicant’s business from enjoying great success, while ensuring they remain a responsible and welcome addition to the neighborhood.

If the license is issued with the requirement that the garage retail serving area be completely enclosed and soundproofed, and omits the outdoor seating component, I would have no protest against it.

Even if the applicant agrees to voluntarily remodel the garage as requested and to forego outdoor seating, I would still like to see those be formal requirements of the liquor license, to categorically prevent any possibility of past problems recurring in the future.