If not for a former Israeli paratrooper, one of Oakland’s few upscale shopping districts might have gone up in flames in the early morning hours of November 21, 2001.
Paul Berman was driving home with his wife down tony Piedmont Avenue shortly after 1 a.m. when he noticed something out of the ordinary at Fentons Creamery and Restaurant.
Berman had often seen the restaurant’s employees working late at night. Workers routinely hosed out the building after closing, flushing gallons of melted ice cream and gobs of kitchen grease down the storm drains. “They would pressure-wash two to three nights a week — washing the waste onto the parking lot, down the drain, and into the creek,” he said. “The milky residue would be everywhere. Basically, everything that fell on the floor would be washed out onto the parking lot.” But that night’s activities looked strange to Berman.
A U-Haul truck was backed up to the loading dock at the rear of the beloved ice-cream parlor. Berman, who has lived near Fentons for thirteen years, knew that most deliveries took place during the day. Remembering that a similar incident on the avenue had turned out to be a robbery, the watchful neighbor called the Oakland police.
Police dispatched a patrol car, and when officers saw the U-Haul they thought it was just a routine case of workers moving equipment. Two employees were slowly wheeling a jukebox onto the truck. Just in case, however, the officers decided to circle the block. On their return trip they saw smoke.
The officers immediately called for assistance. Firefighters extinguished the blaze before it completely destroyed Fentons, but the restaurant’s interior was severely damaged by smoke and flames. Police arrested three creamery employees with no prior criminal records; all three eventually admitted their involvement in the arson and robbery. The two adults — the restaurant’s day and night supervisors — were sent to prison, and the minor spent two months in juvenile hall. One of the adults is still behind bars and faces possible deportation; the other apparently returned to Mexico after being paroled.
During the nineteen months it was closed, the already-popular Fentons became a cause célèbre. The famed creamery basked in favorable media coverage, which helped fuel a groundswell of community support from appreciative customers. Owner Scott Whidden received waves of sympathetic letters and e-mails, along with a multimillion-dollar insurance payout that allowed him and his landlord to transform Fentons into the larger, classier ice-cream palace it is today. The Express dubbed it the “Best Culinary Comeback” of 2003.
But behind the famous Black and Tan sundaes and the lines of smiling customers snaking out the door into the parking lot lies a darker tale of smothering debt, implausible motives, insurance payments, and a police investigation that left key questions unanswered. Underlying the entire mystery is one former employee’s allegation that Whidden indirectly encouraged him to torch the business — a charge never pursued by police or prosecutors.
Whidden vehemently denies the suggestion that he had anything to do with the fire that nearly destroyed his creamery. He called the assertion “outrageous” and claimed in an interview that the blaze devastated him financially, calling it “a very, very tragic event … possibly the worst thing that could have happened.” In fact, his psychologist wrote in March that Whidden suffers from post-traumatic stress disorder because of the prolonged rebuilding process.
Yet a very different picture emerges from interviews with former employees and inspection of public documents. Like a wildfire that clears dead underbrush but spares the trees above it, the blaze that nearly destroyed Fentons may actually have saved it.
At first blush, Gregory Scott Whidden, a 43-year-old Montclair resident with dark curly hair and a cherubic face, comes across as a calm, fun-loving guy who gets his kicks serving ice cream to children and seniors. Whidden seems a perfect fit as the owner of a local business with an American-as-apple-pie reputation. He is an unabashed Oakland booster who has helped raise money for Children’s Hospital and crafted a fifty-foot-long sundae for Children’s Fairyland. But former employees, legal opponents, business acquaintances, and several neighbors say Whidden’s aw-shucks-I’m-just-an-ice-cream-maker persona is nothing but a front.
“He’s reminiscent of Krusty the Clown from The Simpsons,” said Leila Moncharsh, an Oakland attorney who represents Fentons’ neighbors in the Piedmont Avenue area. “On the surface, he’s ‘Hey, kids, here’s your ice cream.’ But as soon as you look into his background, you find something totally different.”
Fentons has another side too. On its face, the ice-cream parlor is an East Bay institution, a beloved remnant of a bygone era. But it was spiraling downward long before the fire. Gone were the longtime ice-cream makers who linked Fentons to its past. Gone were the veteran waitresses who called their customers “hon” as they served up crab sandwiches. Gone were most of the people who lived for Fentons, replaced by a seemingly endless string of people who merely worked there.
The changes began almost immediately after Whidden and Richmond attorney C. Jay Hollander purchased Fentons in 1987 and attempted to break its union. They closed the shop, laid off the employees, and forced them to reapply for their jobs, according to newspaper accounts and former waitress and manager Cynthia Van der Heyden, who had worked for Fentons for more than twenty years. Whidden and Hollander sued the union when employees picketed his shop. (Whidden said they went on strike; union members said they were locked out.) The employees eventually returned to work and later disbanded the union after Whidden promised better health benefits. But it was more than half a decade before Whidden made the promised improvements, Van der Heyden and two former colleagues said.
Fentons hasn’t really been “Fentons” since the 1950s, when the Fenton family sold the business it started in the 1890s. Whidden has nonetheless capitalized on their story, featuring it on his restaurant menus and company Web site. In reality, he and his partner have no connection to the family. The two bought the ice-cream parlor from a group called Wallner and Associates of San Diego, which had purchased the business a few years earlier from food and prescription drug conglomerate Foremost-McKesson.
Still, Whidden and Hollander were no strangers to ice cream. In 1981, they purchased Botts, across from the Elmwood movie theater in Berkeley, which remained a College Avenue fixture until it folded in the mid-1990s. In addition to collecting ice-cream parlors, Whidden went on a buying spree in his early and mid-twenties, obtaining bank and personal loans to purchase rental property on Ashby Avenue, a home in Montclair, and a small Concord food distributor.
In 1985, the Skyline High grad filed what apparently was his first lawsuit, suing a creditor who was demanding payment — a common theme in what would prove to be a very litigious career. Court records show that until the fire, Whidden was involved as both plaintiff and defendant in more than a dozen lawsuits. One of those cases was filed in 1997 by Hollander’s wife, Adele, who was trustee of the family’s estate. She essentially alleged that Fentons never repaid the bulk of the loans that Whidden and her then-bankrupt husband used to buy the restaurant. Whidden acknowledged the loans’ existence in court filings, but claimed that they should have been voided. The case was eventually settled out of the public eye, and by the mid-1990s Hollander was no longer playing an active role in Fentons.
Over the years, Whidden also amassed quite a track record as a tax delinquent. Less than two years after he and Hollander took over Fentons, Whidden had his first run-in with the tax collector. Public records show that he or his businesses failed to pay some taxes on time every year from 1988 through 2001.
Throughout the 1990s, Whidden was hounded so often by bill collectors and process servers that he frequently hid in the back of the creamery, three former employees said. When he couldn’t be found, process servers were sometimes forced to hand the documents to his employees. Whidden and his attorneys later attempted to have several such cases thrown out of court for alleged improper service, court records show. Although Whidden and his attorneys usually lost these battles, they delayed the lawsuits, costing creditors more money and allowing him to further delay payment.
“They have deliberately employed tactics of ignoring creditors and raising specious challenges to debts in the hope that the creditor will eventually forgive or compromise the debt,” one of Whidden’s former creditors, Patrick Feigelson of Nor-Cal Brokers, said of Whidden and his company in a 1993 lawsuit. “I know of at least ten different vendors and service contracts with whom respondent has employed the above-described tactics.”
Despite the financial shortcomings, Whidden retained his appetite for expansion. In late 1989, he again borrowed money to buy and rename the old Leatherby’s Family Creamery in Pleasant Hill, next to the now-defunct Montgomery Ward store in the aging Contra Costa Center. It was a bad move. Fentons Creamery of Pleasant Hill foundered and then tanked in 1996. Whidden blamed his business failure on Caltrans’ expansion of I-680, which ate up part of the mall’s parking lot. Eventually Fentons was evicted and the landlord, Stan Zimmerman, sued Whidden and his company for back rent and damages.
“He wrote more bad checks than I could count,” Zimmerman said of Whidden. Zimmerman alleged in his lawsuit that Fentons’ employees trashed the building and left human excrement on the floor. Whidden denied those charges and claimed that Zimmerman refused to share his multimillion-dollar Caltrans settlement. When the company Whidden had used to buy the Pleasant Hill ice-cream parlor went bankrupt in 1994, its attorney admitted in court documents that it still owed the owner of Leatherby’s $262,000 from a loan five years earlier.
Things eventually got so tight that Whidden turned to his own employees for money. Two veteran workers, Van der Heyden and Betty Mueller, each provided him with $25,000 to help refurbish the Oakland shop. It was a move Van der Heyden said she later regretted. She alleged in 1993 that Whidden fired her after she demanded repayment. She said she was replaced with “an employee who had agreed to lend money to the corporation.” Both women said in interviews that Whidden eventually repaid them on monthly installment plans. Van der Heyden said she returned to work for him for a few more years, but she finally quit because she couldn’t stand it anymore.
As his business endeavors soured, Whidden’s personal life also took a turn. In 1993, federal agents raided his San Leandro warehouse and arrested him for selling chemicals used to make methamphetamine; the charge led to a 1995 felony conviction. The case was later sealed or expunged, and no account of the crime is publicly available today. However, Whidden acknowledged the conviction during at least two other legal proceedings. The drug bust carried a stiff fine that Whidden did not pay for several years. In early 1998, the US Attorney’s Office placed a $322,334 lien on his property.
During a two-hour interview at Fentons last November, Whidden repeatedly denied having any financial woes. When shown public records that proved otherwise, he sighed and then acknowledged some of his many problems. Whidden also initially denied any knowledge of a drug conviction, and then said he had been “confused” during a 2002 hearing when he admitted the conviction, and that he had later recanted his statement. When told there was no court record of his recanting and that he also admitted to the conviction in a 1997 sworn statement in the Pleasant Hill Fentons’ case, Whidden came clean, sort of. He said the conviction arose from a “problem” at his San Leandro warehouse, and maintained that he does not “have a problem with drugs.”
Whatever the case, the financial travails of Fentons’ owner took a toll on the restaurant, which was in disrepair from decades of operation. Whidden reluctantly conceded that Fentons was “worn out” before the fire and that he had no money to refurbish it. But he said there was no urgent need to upgrade the aging building, because its “funky” condition only added to its charm.
County officials and Whidden’s own staff might beg to differ. Three former employees said repairmen routinely ignored phone calls from creamery employees because they were worried they wouldn’t get paid. A November 1993 attic fire closed Fentons for a day, according to newspaper accounts, and another fire scorched a backroom ceiling in February 1995, according to records from the Alameda County Environmental Health Services Agency. The cash-strapped Whidden left the blackened damage from one or more of the fires visible for at least three years, prompting inspectors to repeatedly threaten to cite Fentons, health records show.
At the height of the 1998 summer rush, the health department shuttered Fentons for a day after receiving a complaint of an extensive sewage leak. Workers inside the restaurant were digging trenches and pouring concrete at the same time others were making and serving ice cream. Fearing the loss of booming summer sales, Whidden ignored employee pleas to close the store, said Van der Heyden, who claimed the place had so many plumbing problems that waste often oozed up from the drains. “One time when the health department came,” she said, “the sewage was running into the dining room.”
In essence, Fentons was crumbling under the weight of Whidden’s financial woes. “Everything was falling apart. It would have cost hundreds of thousands of dollars, at minimum, to upgrade it,” said Dan Tonelli, a Fentons employee for more than a decade. “Plus you would have had to shut down the place.”
Public records and interviews suggest that prior to the fire, Whidden probably could not have afforded the upgrades. Although the exact value of his assets is unclear and the cash flow generated by Fentons is unknown, by November 2001, Whidden was struggling to pay off at least $1.71 million of personal and business debt — $774,223 in liens, and $937,496 in loans to him or his various businesses. In addition, it was unclear how much he still owed from the $588,344 bankruptcy of the company that owned Pleasant Hill Fentons.
But fortunes would change for Whidden and Fentons on the morning of November 21, 2001.
Fentons employees Fernando Meneses and Martha Peña, then nineteen, and Daniel Silva, then sixteen, at first denied responsibility for the fire and told police they were robbed by four men who set the fire and fled in a Pontiac. But during a police interrogation several hours after the blaze, the three confessed to committing the robbery and arson. Meneses said he and his co-workers were angry at Whidden because “the business was in disrepair and he wasn’t repairing anything.” Meneses also said they were angry because Whidden had allegedly reneged on a promised summer bonus, police department arson investigator Sgt. Paul Balzouman testified in court.
For his part, Whidden accused Meneses and Peña of check and credit card fraud. Fire Department investigator John Michael Dolan said it appeared that employees were illegally using the credit card numbers of Fentons’ customers, but he said he did not find enough evidence to charge anyone with a crime.
After pleading no contest to the charges, Meneses and Peña each were sentenced to two years in prison. The sentencing judge, Philip V. Sarkisian, said both would likely be deported. Meanwhile Silva, who testified against the other two, got two months in county juvenile hall, one month of house arrest, and four hundred hours of community service. Silva, now an adult, could not be reached for comment, and letters sent to Meneses and Peña requesting interviews were not answered. Meneses is in Pleasant Valley State Prison in Coalinga, according to the California Department of Corrections. Friend and former Fentons co-worker Sandra Andrade Duran said Meneses could be released as soon as next month. A spokesman for the Department of Corrections said Peña was paroled in April, and Duran said she had returned to Mexico.
Former colleagues of the teens cannot fathom their crime. Ex-manager Van der Heyden said she found it hard to believe that Meneses would have had the courage to rip off Fentons and set it on fire, remembering him as a “meek kid.” Meneses, who was born in Mexico City, graduated from Oakland’s Fremont High, and lived in the city’s Fruitvale District, had deep ties to Fentons and much to lose by setting it on fire. His mom worked there, and lost her job when it burned. Tonelli said Meneses was a “very intelligent, very nice guy.” Peña, meanwhile, was almost running the place. She was Fentons’ day supervisor, and Whidden testified that her duties included scheduling and making recommendations on hiring, raises, transfers, and terminations.
Whidden has argued that his former supervisors got off too easily and that each should have been put away for several more years. At the sentencing hearing for Peña and Meneses, he noted that neither of the teens had shown any remorse. Whidden said he was at a loss to explain why Meneses and Peña — model employees he had hired, trained, and promoted — had turned against him. “I don’t know what happened to these two people,” he said. “I do know that we trusted them.”
Even Meneses’ own attorney spoke of her client’s close relationship with Whidden. During his and Peña’s April 2002 preliminary hearing, attorney Elena Condes alleged that Whidden turned to Meneses when he wanted his restaurant to burn. “It is my understanding based on information and belief,” Condes said, “that Mr. Whidden … had suggested … that the insurance will replace everything; that the employees would still continue to be paid as they were being paid, while the insurance company rebuilt the building; and that both Mr. Meneses and Ms. Peña could come back to work afterward.” Condes repeated the allegation at Meneses’ April 2003 sentencing, where she added that Meneses viewed and trusted Whidden like “a father figure.” According to transcripts, she said the young man “was only doing what he thought were his wishes.”
Meneses did not personally testify at any of his court appearances, but according to a probation report, he described a conversation he allegedly had with Whidden in a one-on-one meeting before the fire. “When he met with me, he made a statement about the problems the place was having and said something to the effect that the place should have been burned down,” the report quoted Meneses as saying. “I felt that he was indirectly telling me to burn the place and that he had my back.” Whidden later called Meneses’ allegations “outrageous,” and said he never met with his employee to discuss any kind of fire.
Given how late in the process these allegations against Whidden first surfaced — five months after the fire — Balzouman and Dolan gave them little credence. “Why wasn’t that brought out in our interviews with them?” asked Balzouman, lead investigator on the case. “If they had been put up to it, they never said that.”
But Balzouman and Dolan conceded that they never as much as glanced at Whidden either before or after Meneses and Condes pointed the finger at him. Consequently, police and fire officials never knew about any of Whidden’s financial problems. Neither did they know about his felony drug conviction or $322,000 fine, even though he admitted to the conviction during a court hearing about the fire. Nor did they know about the condition of Fentons before it nearly burned to the ground. Finally, they never checked Whidden’s whereabouts at the time of the fire, even after hearing Meneses’ allegations.
Deputy District Attorneys Mas Morimoto and Timothy Wellman, who shared the prosecution of Peña and Meneses, also did not look further into the case. “We rely on what the Oakland Police Department does and what the Oakland Fire Department does,” Wellman said. “It’s not my place to say whether it was fully investigated or not.”
Police consider the Fentons arson case closed. Yet several puzzling questions remain about what happened that night and why. For instance, while all the teens eventually admitted to being involved in the arson, none said they started the fire or actually saw one of the others start it. The closest any of them came to that was Silva, who testified that he saw Meneses trying to turn on a stove with a piece of paper in his hand.
In addition, Dolan said in his report that most of the fifteen to twenty gallons of gas found in three cans inside Fentons had not been used in the fire. In other words, whoever started the fire didn’t spread most of the gasoline brought to do the job. The fire started in an office atop files that had been spilled onto the floor, Dolan noted in his report. In an interview, Dolan said that some of the papers did not burn, but when asked if he had ever examined them to see if they were purposely being destroyed, he said, “No.” He later got angry and hung up the phone.
The day the teens selected to commit their crime also appeared to make little sense. If robbery was their motive that night, then why would they choose a Tuesday, one of the slowest sales days of the week, Tonelli wondered. On a Sunday night, with all the weekend’s receipts still in the store safe, there would have been a much larger haul, he said.
Finally, there is the mystery of why three teenage employees were trying to steal a jukebox and three large gelato-making machines while Fentons was already ablaze. One of the first two officers on the scene later testified that the demeanor of the teens seemed out of place. Meneses and Silva were slowly wheeling a jukebox into a truck and seemed oblivious to the imminent danger. “I didn’t think they knew the building was on fire,” police officer Stephen Mitchell testified. “They were moving at a normal place. They weren’t hurrying.” Balzouman said he believed the teens set the fire before carting off the gelato machines simply because they were not as organized as they hoped to be.
The coin-operated jukebox, a Rock-Ola CD-8 Bubbler with a nostalgic look, was owned by T.D. Rowe Corporation, and was a money-loser for Fentons. George Garrett, a T.D. Rowe account executive, testified in court that the jukebox was bringing in less than $100 a week and that Fentons wanted to get rid of it.
The gelato machines, meanwhile, were owned by Joaquin Pochat, who ran a gelato wholesale business from a backroom at Fentons, even though it is illegal to manufacture and sell food wholesale on Piedmont Avenue without a city permit. Pochat called the attempted theft odd because his machines would be useful to very few businesses. Although he testified in court that the machines were worth a total of $29,000, he said that if the teens had tried to sell them, they would have stuck out like a sore thumb. “I was pretty puzzled,” said Pochat, who now owns Tango Gelato in San Francisco. “They could sell them, but they would be easy to trace.” Pochat also knew that Meneses and Peña didn’t even know how to operate the machines.
There is no evidence in publicly available court files or transcripts that investigators ever asked the teens why they were attempting to steal the gelato machines and jukebox. Nor is there a record of police asking why the teens didn’t just make off with the $5,000 they had already pocketed from Fentons that night. According to court records, Meneses told a county probation officer, “I don’t even know what we were going to do with the equipment, because it would have been too hard to sell.”
Stranger still, the teens would almost certainly have known that Fentons didn’t own any of the machines they were attempting to steal. In fact, Tonelli observed, they were making off with the only valuable equipment that didn’t belong to Whidden.
The fire generated at least $2.85 million in insurance payments, according to interviews and copies of deposited checks. Whidden got $1.5 million and the restaurant’s landlord, FPC of Oakland, got $1.35 million. The cash allowed Whidden to rebuild Fentons’ entire interior, replete with modern plumbing, wiring, and decor.
During the interview, Whidden said the fire devastated him because he had to plead with his landlord not to terminate his lease. He also claimed that the dual insurance payout of $2.85 million did not cover the total costs, which he suggested exceeded the insurance payment by at least $450,000. Whidden said community members helped finance the renovation and shortfall with “gifts and loans” of $800,000. But he would not say why the loans were not secured against his or Fentons’ property, like others he had received in the past, and he declined to reveal who made them.
After the interview, Whidden changed his tune. He delivered a written report that purported to itemize all his fire-related expenses and earnings, only now the shortfall was almost $1.4 million, not the $450,000 he’d claimed in person. Yet the report provided no proof of extra costs, nor did it reveal how a man deeply in debt suddenly was able to come up with the extra cash. The report appears to claim Whidden was personally responsible for paying the landlord’s portion of the renovation — it makes no reference to the $1.35 million insurance payout the landlord received. But an interview with a spokesman for the landlord, along with documents reviewed for this story, show that all of the landlord’s insurance payout was spent on the renovation. When asked about the apparent discrepancy in the report, Whidden’s attorney Peter Smith maintained his client was out $1.4 million, saying he was certain some of this shortfall was “lost profits.” But he could not say how much.
Whidden said he could have just pocketed his insurance payout, paid his debts, and closed Fentons for good. He said he fought to reopen the restaurant because “I didn’t want it on my record that I would just walk away from this place.” However, testimony by an insurance adjuster hired by Whidden cast doubt on whether he really could have just walked away. Jahn Miller of Rubin Palache Miller & Associates of Emeryville testified that Whidden’s $1.5 million payout represented two types of insurance. About $250,000 was traditional property insurance that did not require Whidden to rebuild. But the rest was something known as business interruption insurance designed specifically to reimburse him for expenses incurred during a renovation, such as payroll, operating expenses, and lost revenue from closure of the store. If Whidden had simply walked away from the creamery, he would not have been entitled to all of that money.
Miller said in an interview that Whidden had to prove to the insurance company that he continued to pay his employees to qualify for that part of the business interruption payout. But four of five former employees who worked at Fentons at the time of the fire said they received paychecks only for work or vacation logged before the fire. The fifth alleged that Fentons actually cut weekly paychecks for up to ten employees for about six months after the fire, but that Whidden never mailed them. Whidden denied not paying staff properly after the fire and said he continued to pay eight to nine employees during the renovation.
It is unclear whether Whidden’s insurance company, Kemper Insurance, or the landlord’s, Fireman’s Fund, fully investigated Whidden’s insurance claim. Whidden said they did. But neither insurance company returned phone calls for this story. Two sources said the FBI briefly looked into Fentons’ payroll practices during the renovation. FBI officials refused to confirm or deny the existence of any such investigation.
Whidden has denied using any insurance money to pay his personal debts, and he indeed still appears to be mired in debt. He still drives a 1982 white Ford van, and he and his businesses still owe at least $1.39 million in liens and loans, according to a public record search earlier this month.
Yet Whidden’s 1998 drug fine was retired shortly after the fire at Fentons. The US Attorney’s Office released the $322,000 lien against Whidden on March 21, 2002, just four months after the fire and just nine days after Whidden deposited the final installment of the first $200,000 from his insurance company.
Whidden continued to capitalize on his restaurant’s stellar reputation during the nineteen months Fentons was closed for renovation. He solicited customer testimonials about favorite ice-cream memories, forwarding hundreds of them to Oakland development director Claudia Cappio, Councilwoman Jane Brunner, and Mayor Jerry Brown. The letters are full of stories about couples meeting for the first time at Fentons, or having their first date there, or taking children and grandchildren there. “I cannot imagine an Oakland without Fentons,” one customer gushed. “Fentons has been part of my family for generations,” wrote another.
The PR campaign may have helped calm the waters roiled by Fentons’ renovation. Some residents were angry about what they alleged was an illegal addition to Fentons that Whidden had built within inches of a rear apartment building, completely blocking a neighbor’s view. But Oakland’s Planning Commission refused neighbors’ requests that it force Whidden to remove the addition. Neighbors appealed to the city council, which upheld the planning commission’s ruling, but placed fifteen conditions on Whidden before it issued his official permit to reopen.
Neighborhood activists said Fentons’ iconic stature seemed to give Whidden extra leeway to delay implementation of the council’s conditions. “Scott Whidden has traded on the Fentons name for a long time,” said Valerie Winemiller of the Piedmont Avenue Neighborhood Improvement League. “He is superb at manipulating PR.” Whidden was supposed to complete the fifteen fixes within thirty days of the council’s July 2003 order, but it took him more than twelve months. And neighbors and activists said the improvements got made only because of the vigilance of area residents and extensive involvement by Brunner, who represents the Piedmont Avenue area. “We’ve had to do all these pressure tactics on him,” said Mike Lydon, a neighborhood resident for 54 years.
The city’s requirements included enclosing Dumpster areas, prohibiting truck deliveries during evenings and Sundays, and stifling the deafening noise from giant new refrigeration compressors installed on the restaurant’s roof. “Scott said, ‘You won’t hear the compressors,'” Winemiller said of a conversation neighbors had with Whidden during the renovation. “But when he fired them up, of course, there was this incredible roar.”
Whidden was unhappy with the conditions. He filed suit against the city last December, claiming the council had acted illegally, although he has yet to press for a hearing in the case. Still, in an interview, he characterized these disputes as typical of relationships between residents and bustling businesses in neighborhoods such as his. He also said he does not believe neighbors have given him enough credit for fixes such as soundproofing the compressors. “It was expensive,” he said. “I’m not a wealthy guy.”
But Winemiller and two other neighbors said Whidden had promised to make all fifteen fixes before he reopened, and they said they’ve had no similar battles with any other Piedmont Avenue business owners. “I’ve been in meetings where he was extremely friendly, solicitous, but then later, when you confront him about not living up to his promises, I’ve seen him get angry, red in the face, and blame you for asking,” Winemiller said.
Meanwhile, Whidden’s legal problems continue to grow. In August, Restaurant Equipment Design sued Fentons to force the business to pay an arbitrator’s award from earlier this year. The arbitrator, Douglas W. Allan, ruled in June that Fentons owed $10,803 for failing to pay for work done during the renovation. The bill ballooned to $35,428 because of attorneys’ fees, interest, and arbitration fees.
Whidden is trying to have the arbitrator’s ruling thrown out, because Allan refused his repeated request for a six-month continuance. Whidden’s San Diego-based holistic psychologist, Gita Elgin, said in a March 12 letter that the creamery owner suffered from post-traumatic stress disorder and needed more therapy before the case could go forward. “Mr. Whidden’s condition at present is such that any stress induced related to the episodes in question, including stress related to assisting in preparing for arbitration, may severely degrade his ability to function,” wrote Elgin, whom Whidden had planned to use as a witness in the 1996 Pleasant Hill Fentons case.
The arbitrator denied the request for a continuance, in part because neither Elgin nor Whidden’s attorney could assure him that Whidden would recover in six months. Allan also said Whidden appeared to show no signs of the malady at a March 2 hearing. “Mr. Whidden was cogent, coherent, attentive, composed, articulate, and fully able to assist, participate, and present himself in this case,” the arbitrator wrote.
Fentons’ neighbors now worry that Whidden will ramp up his plans to manufacture and sell wholesale ice cream from his restaurant. That could increase truck traffic in the neighborhood and would be illegal. Technically, Oakland zoning laws prohibit any kind of food manufacturing on Piedmont Avenue. But for decades, Fentons has been making ice cream from scratch for its retail clientele under a grandfathered exception called “a legal, nonconforming use.” Extending that use to wholesale distribution — selling ice cream to other retail outlets — typically would require a conditional use permit Whidden does not have, a planning department employee said.
But Whidden already has restarted his wholesale business at Fentons without such a permit in apparent violation of city regulations. He advertises Fentons’ wholesale business on the company Web site, and at least two other parlors, Knudsen’s Creamery in Castro Valley and the Chocolate Cow in Sonoma, freely admit they buy their ice cream from Fentons in Oakland. Knudsen’s even boasts of this on its plate-glass window and menus.
Whidden said his wholesale plans should also be grandfathered in, as his retail operations have been. His attorney said Fentons is merely continuing business practices dating back to when it was a real dairy. Smith also said the city has not told his client to stop: “We believe it’s perfectly legal.” Gary Patton, deputy director of Oakland’s Planning Department, said his staff was “in the process of investigating” Whidden’s wholesale practices.
The wholesale ice-cream dispute bears striking similarities to a long legal battle Whidden had with the city of Berkeley when he used to co-own Botts, court records show. In the mid-1980s, Whidden wanted to manufacture ice cream for wholesale at Botts which, like Fentons, was in a retail corridor surrounded by a residential neighborhood. But Berkeley officials blocked his plans because they violated the city’s zoning laws. Whidden sued in 1986, but after six years of litigation and appeals, he lost. He closed Botts in 1996.
Fentons, however, seems busier and pricier than ever. The restaurant continues to attract legions of fans from throughout the Bay Area, even though sundaes now run $8 to $10. On a recent weekend night, after temperatures had hovered in the nineties for several days, hundreds of East Bay families decided to escape the stifling heat that had built up inside their older, non-air-conditioned homes. Like migrating birds returning to the same spot each year, the moms and dads and kids made their way to Fentons and packed themselves into one of the East Bay’s last true ice-cream parlors.