Hands Off My Money! How to Win Your Small Business Dispute + Bonus Case Study!

I really don’t know how a person can run a small business without also being a lawyer. You do a lot of transactions, of one kind or another, and every transaction runs the risk of somebody trying to fuck you and take your money. That’s not to say that everybody out there is trying to get away with something—most aren’t—but a not insignificant number of transactions end up in some kind of dispute. You have to be able to protect yourself from corporate rapine, among other things.

As a small business, you’re frequently at an inherent disadvantage. Your counterparty is often a bigger entity with more resources and more bargaining power. Maybe to do business with them, you’ve been forced to sign some shitty one-sided contract of adhesion that lasts for years or automatically renews without notice to you. A year into the contract, you realize this company sucks, but good luck breaking up with it. Somebody has just done fucked you and taken your money. Just like that.

   The Village Lawyer  . Pieter Brueghel the Younger (1621).

The Village Lawyer. Pieter Brueghel the Younger (1621).

Keeping Your Money: Suggested Tactics

So how do you get control of this sordid business and hold on to your money? It obviously helps to be a lawyer, especially a litigator. If you know the law and do commercial disputes for a living, you have valuable resources to throw into the fray. Most people aren’t lawyers, thank goodness, so that’s not going to be a fallback except in rare instances. You can always hire a lawyer to do it for you, and you absolutely should if there’s a lot at stake. But what do you do when $2000 are on the table, or even $5000? Attorney fees probably make hiring a lawyer unrealistic. You’re on your own, just like you were when the landlord in your last apartment complex tried to shake you down for your security deposit over some dubious move-out charges.

You don’t need a lawyer, though, as long as you’re in command of the facts and have your eye on the endgame. What you’ve got to do is make it as expensive as possible for the other side get (or keep) your money. Shady companies have lots of folks they can take advantage of, and where they choose to focus their resources is just a cost-benefit question. Change that calculus for them, and they’ll go take a shit on somebody else. If enough people make it painful enough for them, maybe they’ll start re-thinking the way they’re doing business altogether.

Usually mere resistance, without something more assertive, isn’t going to work. If they don’t already have your money, you have a certain tactical advantage. They’ve got to work to come get it. But if they do have your money, you’re in a weaker position, because the burden is on you to get it back. The key is to identify what, specifically, they did wrong, and leverage it as hard as you can to get what you want. If you can credibly claim they violated some consumer protection law, where you could get punitive damages, that will probably get their attention.

  Handsome Caucasian Lawyer.  That’s the actual name of this stock photo listed on the  Internet .

Handsome Caucasian Lawyer. That’s the actual name of this stock photo listed on the Internet.

Let There Be Treble Damages!

Treble damages, punitive damages, statutory damages, attorney fees. Appropriate use of these terms is to your advantage. A threat to involve the State AG’s office or federal regulators may be worth throwing into the mix, especially if it’s a consumer dispute. Whatever you do, put it in writing, and then send certified copies to the company’s general counsel and CEO. Important people don’t want to spend their time dealing with your shitty little $1500 dispute. That, too, is to your advantage, so long as you’re credible and willing to invest in the dispute.

A well-placed review of the company on a third party’s review site can also be effective if done right. In fact, find three or four sites and put your review up everywhere. I’m not talking about a stupid-ass Yelp review, in the manner of some self-satisfied nincompoop rating a ramen shop 1 star because he does’t understand the difference between ramen and pho, and thought he was going to a pho restaurant. “This so-called pho restaurant does not serve pho. The noodles were all thick and chewy and the soup was covered in a layer of fat. Disgusting! DO NOT EVER GO TO THIS RESTAURANT. I know authentic pho and this was NOT authentic. Totally fake!”

My point: your review has to make sense and be compelling. It’s not about being an opinionated buffoon, it’s about being factual, credible, and committed to getting a result. Obviously, this tactic only works if the company in question cares about online reputation. Some do—considerably. Last year, as part of a confidentiality clause in a settlement agreement I entered with a tech service provider, I was required to pull down my reviews of the service. It was really important to them that the reviews come down.

For things to work out, though, you have to be in the right, preferably as a legal matter. At least you need to have equity on your side—some sense that, even if not unlawful, you’re being treated unfairly. I’m not suggesting that you go out and take advantage of somebody, after all. I wouldn’t tell to you act like Donald Trump and screw contractors as routine business practice. I’m suggesting there are ways to level the playing field when somebody bigger is trying to take advantage of you.

Aramark: A Case Study

And now a small case study, involving the linen services company Aramark. Terrible company. The worst. We used Aramark for towels and aprons at our stores until earlier this year. At some point, after using the service for 18 months or so, we noticed the prices had increased dramatically, without notice or explanation. When we tried to find out why, we couldn’t get anyone to call us back. Meanwhile there were all sorts of problems with the deliveries—overcharges, missing items, etc. Aramark wouldn’t address those either. So we terminated the service and switched to a new vendor.

Aramark responded by trying to charge us $5000 for “liquidated damages” because, they said, we had a multi-year contract that we were breaching by terminating. We’d never seen this so-called “contract,” and had no reason to think one existed, let alone that we couldn’t terminate it for cause. Give me a break.

Aramark’s demand and my responsive demand are below. Please note: I do not ordinarily write demand letters quite as gleefully contemptuous, as toweringly disdainful, as this one. I’ve worked hard to purge snark from my legal writing over the past decade, as much as possible, but sometimes it cannot be helped. It also seems my id is liberated, just a bit, when I’m representing myself instead of a client. Spoiler alert: Aramark never contacted us again after this letter.

An Outrageous Demand

Aramark Demand Letter. We got two of these things, one for each of our stores. They wanted over $5000 in total.

An Appropriate Response

Dear Mr. Hall,

I am in receipt of your letters dated January 26, 2018 regarding the above-referenced account, entitled “Breach of Contract” and using terms like “liquidated damages,” which, as a non-lawyer, you clearly do not understand.  Your threatening use of this term to consumers is misleading and is likely in violation of California consumer protection and unfair competition law.  

I write to confirm that Shiba Ramen Corporation (“SRC”) will be terminating Aramark service as of February 28, 2018, per our prior written notice dated January 21, 2018 (“Notice”).  Should Aramark attempt to enforce its so-called “rights,” as you threaten in your letters, you can rest assured Aramark will find itself on the receiving end of a lawsuit for damages, as well as complaints to the California Attorney General and other applicable consumer protection authorities. 

I am SRC’s General Counsel and a professional civil litigator, and I look forward to providing maximum public exposure to Aramark’s dubious and unlawful business practices.  I also look forward to taking discovery about Aramark’s conduct, including your deposition, where you can tell me, under penalty of perjury, all about your knowledge of “liquidated damages,” and your practices of improperly threatening consumers to continue with unenforceable “contracts.”  Your letters make me wonder whether any class action attorneys are investigating Aramark’s practices.  If you take any adverse action against SRC, we will be sure to find out.  Surely you have sent out countless letters to aggrieved consumers threatening liquidated damages and inducing them to either pay money they do not actually owe, or to continue using Aramark’s deficient services.

With respect to the merits of your claim against SRC, we do not understand that we have any contractual obligation to use Aramark’s service through December 17, 2018.  We have never seen any such contract, and nothing has ever been provided to us by Aramark.  Is it Aramark’s typical practice to fail to provide supposed “contracts” to customers, and then claim “breach of contract” when a customer terminates in consequence of Aramark’s deficient services?  Just making a wild guess here, I’d say the answer is a resounding “yes.”

Even if there is some sort of “contract,” it is undoubtedly terminable for cause.  As explained in our January 21 Notice, a copy of which is attached for your convenience, Aramark’s service has been deficient in numerous material respects.  Indeed, Aramark has invoiced us for services that have not been provided, and thereafter failed to resolve those problems when brought to its attention.  Our position is that Aramark owes us money, not the other way around.  Moreover, Aramark’s monthly invoices increased dramatically, without explanation, during the course of 2017.  When we attempted to contact Aramark customer service about our invoices, we were given no explanation, and the Aramark representatives who promised to follow up with us never actually did. 

Now, getting back to Aramark’s “liquidated damages.”  Please note that liquidated damages clauses like the one you are purporting to enforce—I have not actually seen it, because no “contract” was provided to SRC—are considered unenforceable penalty clauses by California courts.  As the Supreme Court has stated, a liquidated damages clause is unenforceable where, as here, it “bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach.”  Ridgley v. Topa Thrift & Loan Ass’n, 17 Cal.4th 970 (1998). 

Your absurd demand for over $5000 in “liquidated damages” is obviously an unenforceable penalty.  Do you seriously think any court would require a consumer to pay this kind of money for services that have not been provided, particularly in connection with a contract of adhesion that has not even been provided to the consumer?  Aramark suffers no damage from our termination because it no longer gives us any products or services.  We have paid for all Aramark services received to date, and that is all the law requires.  We do not have anything of yours in our possession, except for previously-invoiced materials that Aramark will be collecting prior to the February 28 termination date.     

Your unconscionable conduct is just the kind of thing that will trigger attorney fee awards and punitive damages.  And, of course, Aramark will be subject to actual damages for invoiced services that it did not provide, and for any overbilling in connection with SRC’s accounts. 

This is not a fight you want, I assure you.  You will lose and it will cost you.

Jake Freed

President & General Counsel/Shiba Ramen Corp./California State Bar No. 261518

Cc: Aramark Executive Offices & General Counsel

Construction Cluster#%$!

Last December I sat down to write about the state of the Shiba Ramen business, two years in. But as my last post explained, I dialed out for the past nine months, and I'm just revisiting this now. At this point, we're closing in on three years. A year and a half since we opened the second Shiba Ramen, and a year since The Periodic Table. Pretty unbelievable. Out of necessity, there haven't been any new projects in the works in 2018. I'd rather have something significant in the works, though, so I'm taking baby steps toward the Shiba Ramen franchise program. I want to be taking big leaps by 2019. Right now, I'm just wrapping my mind around it, but I'm getting ready to start drafting documents. I feel like a little work on Ramen Chemistry will motivate me. 

The franchise program has to be a major goal, because we want to focus on growing the brand and getting a licensing stream going. Especially that licensing stream, you know what I mean? In general, I'd much rather be building the concept than doing day-to-day maintenance or store-level operations. Not that I've done much in the way of operations, especially after the first year. This year, it's been mostly general counsel tasks, and some marketing and special events. I've always done all the social media for both concepts--Instagram, Facebook, and some website stuff--but my efforts have been increasingly insufficient. I'm just not focused on it enough. I'm not regularly in the stores, and I lack the ability to generate the constant stream of content needed to keep it fresh and interesting. It would be great to have the budget to outsource and build on the e-marketing program, but we're not there yet. You go to war with the army you have, not the army you might want. Donald Rumsfeld said that. I'm pretty sure I've used that quote on this blog before. It never stops being relevant.   

  Great Food in Emeryville.  Pig in a Pickle opens soon.  C-Casa and Fish Face are recent additions. Chef Cat Li makes some incredible macarons at Oui Oui (photo credit evilleeye.com). Please come eat their food!

Great Food in Emeryville. Pig in a Pickle opens soon.  C-Casa and Fish Face are recent additions. Chef Cat Li makes some incredible macarons at Oui Oui (photo credit evilleeye.com). Please come eat their food!

The big story of the year has been recovery from the construction at Public Market Emeryville. What a shitshow that's been. From around March to December 2017, the road and parking in front of the market were turned into a gaping mud pit, when they rerouted the road to make space for a new parking deck and some retail spaces across the street. Continual delays pushed the construction into our winter busy season, by which point sales had deteriorated significantly relative to the prior year, despite our having raised prices. The parking landscape was constantly evolving through the entire period. Access was disrupted and the number of available spaces was insufficient at peak times. Signage and customer education were perpetually short of where they needed to be to maintain traffic.    

When the rerouted road finally opened in mid-December, the disruption actually got worse. The parking logistics changed (again), with barely any guidance for customers, and many of the access points still not open. The sole usable entrance to the main lot was indicated with unlighted 8.5" x 11" signs taped onto sandwich boards. Predictably enough, sales during what should have been one of the year's busiest periods got decapitated. In December 2017, we sold $20,000 less than December 2016, despite higher prices. We'd been looking forward to a robust winter season to get our cash situation back on track after a year full of our own construction expenses and disappointing Public Market sales. The whole episode really left us hurting when the (still ongoing) slow season hit in the spring.  

  December 19, 2017.  The scene at peak dinner time during peak shopping season. 

December 19, 2017. The scene at peak dinner time during peak shopping season. 

And that's not the end of it. Concurrently with the road relocation, the complex added a parking deck with a ground floor grocery. for New Seasons Market, a Portland-based Whole Foods-type concept. The promise of an anchor grocery opening was huge, and was supposed to provide a boost to overall traffic at the end of 2017. Originally, New Seasons was slated to open in October, but the opening kept getting put off throughout the fall. Then in December, it was announced that New Seasons decided to pull out of the project entirely! New Seasons built a grocery store. Its signs were up. It had its shopping carts on-site. And then it decided not to move in. The company abandoned its entire expansion into the Bay Area. The store it opened in Silicon Valley earlier in the year apparently did a small fraction of projected sales, causing it to close that store, walk away from the Public Market project at the 11th hour, and pull out of two other projects at various stages of development. What a fucking disaster, right? So here we are in September 2018, and the they still don't have a new tenant lined up for the grocery space. The New Seasons signs are still up. Once they find a new tenant, who knows how long it's going to take for it to make the inevitable alterations to the space? I'll be surprised if a grocery is operating in September 2019.    

Last month, we got word of another twist in this woeful tale. The developers decided to call off building the parking/retail structure across from the Market because of cost issues. As far as we understand it, the whole purpose of moving the road was to accommodate this new structure. So, you ask, what was the point of all the headache and expense? If you come up with a good answer, we'd love to hear it, because we can't think of one. The silver lining is that the specter of construction will dissipate as the site gets converted into convenient surface parking this fall, rather than being torn up for another year. Other positives in the near future are the completion of around 300 new residential units at the edge of the project, along with the opening of a new playground and dog park. Most of those units are slated to start leasing in the next six months, and it looks like the construction is on track to make that happen. The playground is opening this month. Should help with traffic. 

Above Left.  So-called Parcel B shown in rendering, with lots of sunglasses-wearing customers walking toward the food hall, presumably to buy drinks at The Periodic Table. Above Right. Recent view of Parcel B, as it has looked for the bulk of the year. It's about to be paved. Photo credit evilleeye.com

Near term, we're nervous about the continued dilution of the existing customer base as more restaurant and bar concepts open inside Public Market this fall. We've had the sense that customers are maybe, finally, maybe starting to come back after eighteen months of disruption. That's still a big maybe, because we've only seen real improvement for about a month, and don't have enough data to draw any clear conclusions. But three new concepts are opening in September, requiring hundreds more customers per day to maintain the existing (and totally insufficient, by the way, if the goal is to make money) per-tenant volume. I can predict with some confidence that all the needed customers aren't just going to magically show up overnight, so we're bracing ourselves for another setback. At least the rainy season is coming, hopefully earlier than it did last year. People eat a lot more ramen when it's dark, rainy, and cold. As I've said before, we pray to the rain gods at our house.

The whole episode has been pretty brutal for the Public Market tenants. These are largely small, family-run businesses without ready access to capital or debt. Most are single-location, or a very small (2-3 store) chains, and most of the owners work in the stores to varying degrees. Some of the newer concepts opened to dramatically lower sales than anticipated. Everybody has been limping along, Meanwhile, the City of Emeryville just raised the minimum wage for the third time since we opened in December 2015. It's no wonder we're charging $2.50 more per ramen than we were 30 months ago. 

The one thing I will say is that Public Market has an increasing amount of great food. We're pumped for Pig in a Pickle to open in a few weeks. Amazing barbecue concept from a former French Laundry chef, Damon Stainbrook. He's got a location in Corte Madera we checked out earlier this summer, and it's going to be a huge hit in Emeryville. He's already installed a giant meat smoker in his kiosk. C-Casa (gourmet tacos and Mexican fare) and Fish Face (poke from accomplished sushi chef Billy Ngo) both opened last year. Paradita does fantastic Peruvian street food. Hot Italian has my favorite thin-crust pizza. And a lot of charges from Oui Oui (macarons) and Mr. Dewie's (cashew ice cream) appear on my credit card every month. There are a bunch of other good concepts in the food hall, too, and Super Duper Burger just announced a lease for a full restaurant space. The food, at least, is cause for optimism. 

Nine Months at Sea: Life Aboard the Good Ship Burnout

Where in the world have I been these past nine months? I wish I could give you a good answer. Obviously I haven’t been following through on my stated mission of documenting all the elements of building a restaurant business. The best I can tell you is this: I’ve been cycling through various states of rage, horror, resignation, depression, and sometimes optimism, all overlaid with a thick veneer of burnout. This is modern life, people, the purgatory of adulthood in Trump’s America. This is putting food on the table. You know what I mean?

December 2017 - January 2018: Mordor, Middle Earth

You know what feels good, though? Killing orcs. Violently, and with a sense of purpose. I killed a lot of orcs over Christmas last year. A broadsword through the forehead of this one, an elven incantation explodes the head of another. Flaming arrows, exploding orc booze. Feeling irritable? Shadows of Mordor might help you get back on track. But what to do when all the orcs are dead, as eventually they must be, and you’re still feeling out of sorts? I’ve got no good answer to that one. I played through a series of video games after my trip to Mordor, and dozens of Sunday crosswords after that, and but I confess they’re no cure. Just a distraction for the wandering, agitated mind. It’s what one does when one’s mind is too roiled to even read books anymore. Peace of mind remains as elusive as ever.

  Shadows of Mordor.  Outstanding game, ridiculously violent.

Shadows of Mordor. Outstanding game, ridiculously violent.

March to May 2017: Oakland, California

I’ve spent some time working on my house. At the end of every rainy season, our yard is way overgrown, every square inch of open ground covered in oxalis and weed grasses. Pulling weeds is remarkably therapeutic, even more than killing orcs, if you can believe it. And when the weeds are gone, you can plant new plants, all the exotic succulents and flowering plants that grow in California. You get to take trips to the garden center and feel awed by nature’s diversity. I’m looking forward to picking out some new trees this fall to plant along our street. I was feeling particularly aggressive over Memorial Day weekend and took the Sawzall to an ugly evergreen tree and a strip of juniper bushes that have been on my botanical hit list since we bought the house seven years ago. You want therapy? Buy a Sawzall and cut down an ugly (small to medium sized) tree. Both the means and the ends are tremendously satisfying. Figure out what to do with the mountain of branches and the ragged stump when you're done. 

I also went through a toilet repair phase a while ago. Not that I wanted it to be a phase, mind you. I just wanted to fix the broken fucking toilet. But it’s the original from 1925 and, as you might imagine, century-old toilets are not repaired without considerable angst. Suffice it to say, considerable angst was experienced, only to have the repair fail. It seemed so close! At one point, we appeared headed for a nineteenth century life here at our house, so we gave in and bought a new toilet. Believe it or not, it’s really easy to install a new toilet. Unless, of course, you’re attaching it to an aged plumbing infrastructure, in which case you should (1) budget at least three trips to the hardware store and (2) embrace your improvisational skills. When all is said and done, about two months after the initial foray into repair, the 1925 model was replaced with a new Toto with #tornadoflush, and we were instantly whisked back to the 21st century.

June 2018: Akron, Ohio

Right now, I’m on my way back from a long weekend in Akron, Ohio, the Home of LeBron James (as the signs at the city border remind us). This was my big getaway for the year, three solid days of drinking with old friends. Not an exotic destination, but I haven’t been back in a few years, so it was about time for a visit. I had a great time. Friday night we went to see the Cleveland Indians play the Minnesota Twins. Great seats behind home plate, with a panoramic view of 40,000 white people, a shockingly high percentage of the men wearing goatees. The uniform whiteness (and the goatees) must have been familiar to me at some point—I lived in Ohio for twenty-two years—but it seems to surprise me more every time I visit. This was the longest time I’d ever gone without visiting, so the diversity gap was especially jarring this time. There were a handful of black, Asian, and Indian people in the crowd. All the Latinos seemed to be on the field. I’m not being facetious. I looked! Baseball is boring, people, so I had plenty of time to work through my disbelief at the state of whiteness in Ohio.

  Chief Wahoo.  This is what happens when too many white people get together in the same place. Credit:  Jason Miller /Getty Images

Chief Wahoo. This is what happens when too many white people get together in the same place. Credit: Jason Miller/Getty Images

On a related note, I was also surprised that the Indians are still playing games wearing the Chief Wahoo logo. I heard they were phasing it out, but it sounds like it’s going to take a couple years to get it off the field. I remarked to my friend, “so I see they’re still wearing the racist hats this year.” The guys in front of and behind us were both wearing Chief Wahoo hats, let’s call them Front Wahoo and Back Wahoo. The Wahoos’ take on the issue can be summarized in the immortal words of Front Wahoo: “at least we don’t call ‘em Injuns.” At least there's that, I guess.  

A little bit later, in some unrelated context, I hear my friend drop the term “mongoloid.” I wasn’t paying attention, so I don’t know how it came up. “I think you’re not supposed to use that word,” I advised. He was surprised to learn this; he seemed to think it was just a technical term of art, not realizing it has become dated and derogatory. My friend went online, confirmed what I’d told him, and learned something. So did Back Wahoo, who was eavesdropping. Close quarters. Overflowing with thoughtful opinions, Back Wahoo announces, “if you can’t say ‘mongoloid,’ this whole stadium’s in trouble!” Now, I’ve never had any reason to think the use of “mongoloid” was so widely prevalent in Northeast Ohio. But on the other hand, how unlikely was it that we ended up sitting next to both Front Wahoo and Back Wahoo out of tens of thousands of people in that stadium. Would our experience have been the same no matter who sat next to us? Later on, Back Wahoo changes the subject, tells us we need to go to the “longest bar in the world” somewhere along Lake Erie, going on at some length about its . . . length. “It’s fucking awesome,” he adds. “Sounds fucking awesome,” I respond.

July-August 2018: Oakland, California

Let’s pause here for a second. I wrote those first paragraphs sitting on a plane from Cleveland to SFO. That was a month and a half ago, and I’m just looking at this again now. I’ve been thinking about it, but that’s as far as I could get. Being strapped into a seat at 35,000 feet is enabling in some way that being here in my house isn’t at this point. I didn't buy the Wi-Fi. My kid just walked into the office for the fourth time since I started writing. I’ve been here long enough to review what I wrote before and write about five new sentences, if that gives you a sense of the frequency. He’s demanding. A delightful little fellow, to be sure, but he expends tremendous effort getting up in my shit. I just bought myself a few minutes by approving Captain Underpants on Netflix. No, wait. I speak too soon. A voice. Footsteps. He’s back. He’s wanting things. He’s gone again. A different show is on. Maybe I have five minutes.

Let’s pause again. It’s now six days later, and I’m just picking this up again. There are cinnamon rolls in the oven, what with the 5-year-old wanting machine having revved up early this Saturday morning. I have ten minutes until they’re done, so maybe I can write two sentences.  I hope I have the wherewithal to pick this up again later today, but I’m not terribly optimistic. So where were we again? I think I was talking about barriers to writing anything other than a lawyer letter or a legal brief. And that’s a segue into perhaps the main contributor to my ongoing inability to write: computer fatigue. I’m already sitting here 40 hours a week staring at these godforsaken screens doing my day job, and that doesn’t count the not insignificant amount of time I spend scrolling through news sites watching our contemporary American Trainwreck unfold in slow motion. Cutting out the news sounds like a great idea, but I’m not sure I have the willpower to pull it off; the next indictment or secret Omarosa tape, and I’m sucked back in. Just like that. Cinnamon rolls are ready. BRB, maybe today, maybe next month. 

  This.  I think I'll stick with the news for the time being. I was pretty into Season 1 of the Apprentice, but I'm way more into the spin-off. 

This. I think I'll stick with the news for the time being. I was pretty into Season 1 of the Apprentice, but I'm way more into the spin-off. 

I’m back. It’s Monday night. Only two days this time, and I have good things to report. Yesterday my son rode a bike by himself for the first time. We tried a few times over the summer, but the first outings were lackluster. When we were out there, he had a blasé attitude about the whole thing, which drove me nuts. I was keeping him propped up, bent over, running up and down the street, but I had to remind him to push the pedals again and again and again. I yelled at him. It was counterproductive, obviously, but it goes to show I just can’t take it when someone is half-assing it and then gets bent out of shape because they aren’t succeeding. Small children require patience, though, I get it. I changed my tactic. We took him to a park with long paved trails and ran with him on both sides for a long distance, then dropped to one side for a bit, and finally let him go. Positive reinforcement. Success! He was proud of himself, which made me happy. I was hoping he’d learn before he started kindergarten, and he made it with one day to spare. 

Today we took him to kindergarten. First day. We herded into the school’s rec room with 75 sets of kindergarteners and their parents. Amid the din, the children were gathered into groups of 25 and abruptly marched off to a classroom, parents flanking both sides of the kinder-column, waving their goodbyes. You could think of it like one of those scenes of soldiers going off to war, boarding a ship or marching through the town square, attended by an adoring throng of flag-waving loved ones, friends, and citizen patriots. The Oakland parent crowd gives off a decorous white collar vibe, so definitely no rending of garments. I didn’t even see any tears, which I must say is a happy surprise. Let’s not lose our composure or do anything gauche, right?

When the kids were gone, and no teacher or school administrator had made any kind of announcement about anything whatsoever, we found ourselves left alone for what seemed to be some sort of Monday morning parental mixer and networking session. But I had to get to work - those hours aren't going to bill themselves, are they? - and Monday morning at 8:45 is way too early for that sort of thing anyway. We held out for as long as we could under the circumstances, which is to say we grabbed a complimentary coffee, slipped out the nearest exit, and got in the car.  

We went back to the rec room this afternoon to pick him up from the afterschool program. All the kids were peacefully sitting at tables hanging out, doing activities, playing games, looking reasonably focused, seemingly being enriched. My son, alone among the group, was walking around by himself, going nowhere in particular, and repeatedly gesturing his index finger toward his open mouth. What in the world are you doing? I’m hungry, he said. Apparently we didn’t pack enough food, and he’d lost his damn mind out there. Or maybe he’d just had it with how-do-you-dos of the first day of school. Probably both. 

  Microcosm of My Life.  "Daddy, my pants are on the Sun."  

Microcosm of My Life. "Daddy, my pants are on the Sun."  

I offered him pizza and sugary drinks in honor of his successful first day. He told me he wanted mu shu pork and tea from a Chinese restaurant. A surprising response, and somewhat disappointing for me because I’d wanted a good drink, and you can’t even get a mediocre draft beer at most Chinese restaurants. The mu shu was quite good, though, along with the Mongolian beef and garlic bok choy. I’m having a highball right now, so you could say all’s well that ends well. Look how productive I’ve been this evening. 500 words and counting. 

Actually, not counting. I stopped writing after I typed "counting." It’s now Tuesday. But I’m back, which is not bad all things considered. I’m going to wrap this up today, because I want to move on to a series of posts about the restaurant business. Get back into it a bit.

So let's get back into it. I'll be back soon.  

The Periodic Table: Design & Construction. Drinks Now Pouring.

The Periodic Table is open! This is practically old news at this point--it's been over two months already. As usual, construction seemed plodding; it started slower than expected and then there was an unfortunate setback when a contractor ordered (and partially installed) the wrong long-lead-time tile just as things were starting to move. That cost us at least a month. Not a huge deal objectively, but not great for our mental state. We were feeling almost desperate to reverse the cash flow situation, with all the capital outflow this year opening two stores, plus the slower summertime business and the drag of road construction on our business in Public Market.  Finally, at the end of August, about a year after starting the project, the construction barricade came down to reveal a stunning little space.

 Photo: Eric Rorer

Photo: Eric Rorer

Functional Design

Coming in at under 400 square feet, The Periodic Table is a compact operation. Perhaps the most important feature is the pass-through window to Shiba Ramen's kitchen. Being "contiguous" with Shiba Ramen allowed us to use the same alcohol license for both storefronts. The Dept. of Alcoholic Beverage Control ("ABC") told us to build TPT in the next kiosk and "knock a hole in the wall." On one side, Shiba Ramen Corporation does business as Shiba Ramen, and on the other as TPT. We couldn't have done TPT as a standalone bar, because the kinds of alcohol licenses that allow minors to enter the premises (the kind we need in a food court) require a significant percentage of sales to be for food.

But to do this bar in such a small space, we couldn't lose any square footage for food prep. We also didn't want to increase our construction and labor costs by investing in another serious food service operation; i.e., we absolutely did not want to build another kitchen (of course, we could have followed the brilliant suggestion of ABC and gotten a "panini machine" or a "soup kettle" to satisfy the food requirement). The whole point was to piggyback on the infrastructure we already had in place, allowing us to focus on alcohol sales and devote as much space as possible to customer seating.  

 Shiba Ramen is "Adjacent Tenant."  You can see the pass-through window under the back bar.

Shiba Ramen is "Adjacent Tenant."  You can see the pass-through window under the back bar.

Every effort was made to pack maximum functionality in the bar area: a back bar cooler for beer kegs with a 12-tap beer tower, a display fridge for bottled beer and sake, a small fridge with worktop for food/drink prep, a dishwasher, and the various sinks needed for code compliance. A hot water heater is stacked on top of a mop sink in a discreet little closet in the back corner. The main bar itself seats 6-7, with another 10-12 seats at the counter that wraps around the room's back and side walls. All the food prep, except for a couple of cold plates, is done in the Shiba kitchen. Above the back bar is a wood lattice shelving unit, where we display bottles and other things.  As I discussed on this blog recently, we put a TV in the back of the room.

The compact nature of the project created a real challenge for our architecture and food service design team. Not only did they have to make sure all the functional needs could be accommodated, they had to make sure everything was code-compliant, and that the final product looked great. Needless to say, they made it happen, and without too many hiccups. We successfully deflected an uninformed eleventh-hour demand by the city that we install a grease trap in our essentially grease-less space, the inclusion of which would have disrupted the careful balance created over months of back-and-forth among the many stakeholders in the project. In a science fiction world, perhaps we could have fit a grease trap in the extra dimensions contemplated by string theory; in the real world, we were completely out of space.

Photo: Eric Rorer

Aesthetic Design

We wanted TPT to be a real standout space, so we hired the folks at Oakland-based Arcsine, who had recently done some excellent restaurant work with Agave Uptown and Calavera. The design process was a low-stress, streamlined collaboration. Arcsine began by interviewing us at some length about the concept and our design goals. We were looking to build off of the modern Japanese-influenced design used at Shiba Ramen, while incorporating references to chemistry, science, and alcohol. The use of geometric patterns and shapes would allow us to act on each of these goals simultaneously, given the prevalence of geometric motifs in both Japanese design and chemistry. As with Shiba Ramen, we wanted tile and lighting to be feature elements.

Arcsine presented us with a set of three concept boards: one emphasized traditional Japanese design, one had a chemistry/industrial theme, and one was more playful with extensive use of color. In response, we suggested combining elements of each theme. We want TPT to present sake outside the usual sushi restaurant context, and we want to steer clear of shoji screens, brushstroke kanji, and the like. But we were excited to incorporate wood and Japanese geometric patterns. Similarly, we did not want to create the kind of sterile, monotone space that could result if we tried to make TPT into a chemistry lab. We viewed warmth and color as essential attributes of the space. The next time we sat down with Arcsine, they presented us with the refined composite concept slide below. We were totally on board. 

TPT Concept.PNG

Over the next few months, we sat down with Arcsine for a series of conversations as they fleshed out the design (the images below include a refined concept collage and an interim material palette). We started with the floor plan, making sure the space had all the necessary technical and code features, arranged efficiently and usefully, all while maximizing customer seating. The main bar terminates with a bump-out in the shape of a half-hexagon, creating an intimate space for conversation, either between patrons or with the bartender. The wraparound bar along the back and side walls contains two more half-hex bump-outs, providing additional focal points for conversation and design features. There are low (34") segments of the main bar and the wraparound bar, both necessary to meet ADA accessibility requirements.  

The ceiling is closed off above the bar, with a half-hex soffit mirroring the bar bump-out, and oak slats running in parallel from the back bar wall to the front of the bar. The area above the customer area is open, allowing light from the Market's skylight into the space. The oak slats in this area run from front to back, perpendicular to slats behind the bar.

The walls are primarily done in oak veneers, with a couple of exceptions.  The bump-outs on the wraparound bar feature gorgeous laser-cut oak screens from Lightwave above the bar, in a custom Japanese tortoiseshell pattern. Below the bar, the screens are mirrored by half-hex tiles from Clayhaus, teal blue with white accents, arranged in the same tortoiseshell pattern. The same tortoiseshell tile mosaic runs along the entirety of the main bar die wall, and is used again, although in plain white, as the backsplash behind the bar. The countertops are deep blue, made from a unique paper-polymer composite material called Richlite. The signature copper-coated beer tower has twelve taps. Butcher block is the countertop material on the back bar. The barstools are plastic/steel in a cool muted blue, from Normann-Copenhagen.  

 Image: Arcsine

Image: Arcsine

The space also has two features that are direct inspiration from chemistry. The oak shelving lattice behind the bar is comprised of parallel rows of square openings, suggesting the periodic table of elements itself. The reference is an explicit one, with some of the openings covered in colored fabric squares printed with chemical element symbols (H for hydrogen, O for oxygen, Cf for Californium, Nh for Nihonium), a graphic representation of the platinum atom, and our ethanol-molecule logo, among other things.  In front of both laser-cut screens are sets of pendant lamps shaped like Erlenmeyer flasks. The lamp is appropriately called "the Erlen," so its designers clearly had chemistry in mind when they developed the product. Side note: this was the one piece of the design Hiroko and I took direct responsibility for, exhaustively scouring the Internet for chemistry-themed lighting. Today we are serving sake by the glass in actual Erlenmeyer flasks.    

* * * * *

So the space is pretty amazing. Arcsine came up with a striking design, which UpCycle Builders executed beautifully. The finishes and the carpentry are exemplary (and so are the drinks, by the way). I love spending time there, and I hope other people do too. It would be pretty sad if I didn't, though, because--brace yourself--this little room cost about $350,000 to design and build, financed through a combination of a Small Business Administration loan, cash, and landlord tenant improvement funds. Then add $40,000 for equipment. Total capital investment close to $400K. That's the cost of doing a tiny designer bar space in the Bay Area. The shock of these costs has worn off to a degree after three projects, but it still seems kind of appalling. There are still a few improvements to be made before the space is really complete, but we'll get to them when we get to them. We're working on some graphic educational collateral about our products for the wall, and we need a better sound system. 

We obviously need to sell a lot of booze, so if you're reading this please come and drink ASAP, and bring some friends! The burger is great, and you can eat ramen and wings at the bar. Here's where we are with the drink menu: 20-25 sakes, 10 draft beers, bottled Japanese beer and California ciders, a growing selection of Japanese spirits, including whisky, shochu, gin, and vodka, and a small cocktail menu. The food menu is minimalist at present, but likely to grow soon. We have cheese, charcuterie, and house-made pickle plates, all great drinking foods. Sports are on the television. See you there. 

 Sleek blade sign fabricated by Sweitzer Fixtures and designed by Misa Grannis.

Sleek blade sign fabricated by Sweitzer Fixtures and designed by Misa Grannis.