South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Dayaram Krupa, LLC, d/b/a Midland’s Mini-Mart vs. SCDOR

AGENCY:
South Carolina Department of Revenu

PARTIES:
Petitioner:
Dayaram Krupa, LLC, d/b/a Midland’s Mini-Mart

Respondent:
South Carolina Department of Revenu
 
DOCKET NUMBER:
06-ALJ-17-0929-CC

APPEARANCES:
Harry T. Heizer, Jr., Esquire
For Petitioner

Andrew Fiffick, Esquire
Milton Kimpson, Esquire
For Respondent

Curtis N. Counts
Carlton Eikner
Moses Felder
Carl Frederick
Bishop Simon Squire, Jr.
Alexena Irving Furgess
Brenda Oliver, President of Pinehurst Community Neighborhood Council
Leslie Eleazer
Emma McGraw Myers, President of Jones-McDonald Neighborhood Association
Elder Norman Summers
Protestants, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The above-captioned case comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2006), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and S.C. Code Ann. §§ 1-23-310 et seq. (2005 and Supp. 2006) for a contested case hearing. Petitioner Dayaram Krupa, LLC seeks an off-premises beer and wine permit for its convenience store, Midland’s Mini-Mart, located at 2414 Chestnut Street within the city of Columbia. Respondent South Carolina Department of Revenue (Department) would have granted[1] the permit but for the protests filed by several neighboring property owners and neighborhood associations regarding the suitability of the location. In particular, the protestants oppose Petitioner’s permit because they contend that the operation of the convenience store with a beer and wine permit will have an adverse impact on the community, as it had under previous proprietors. After timely notice to the parties and the protestants, a hearing of this matter was held on February 21, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the applicable law and the evidence presented regarding the sale of alcohol at this location and the adverse impact it will most likely have on the community, I find that the Petitioner’s application for a beer and wine permit must be denied.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. On August 10, 2006, Keyur A. Naik submitted an application on behalf of Petitioner Dayaram Krupa, LLC to the Department for an off-premises beer and wine permit for its convenience store, Midlands Mini-Mart. The convenience store is located within the city of Columbia at 2414 Chestnut Street. The application and the Department’s file on the application are hereby incorporated into the record by reference.

2. Notice of Petitioner’s application was published once a week for three consecutive weeks in The State, a newspaper published and circulated in Columbia, South Carolina, and proper notice of the application was posted at the proposed location for fifteen days.

3. Petitioner Dayaram Krupa, LLC is a South Carolina limited liability company incorporated on April 21, 2006, and in good standing with the South Carolina Secretary of State, as of August 10, 2006[2]. Keyur A. Naik is the manager and sole owner of Dayaram Krupa, LLC.

4. Mr. Naik is over twenty-one years of age and does not have any delinquent state taxes. Further, the South Carolina Law Enforcement Division (SLED) conducted a criminal background investigation of Mr. Naik which did not reveal any criminal arrests or convictions, and the record does not indicate that Mr. Naik has engaged in any acts or conduct implying the absence of good moral character.

5. Mr. Naik bought the convenience store from Thomas P. Barber, Jr. on August 15, 2006.

6. The convenience store is situated on the corner of Two Notch Road and Chestnut Street in the urban, residential Edgewood-Read community, which is immediately adjacent to the Jones-McDonald and Pinehurst Communities. The Edgewood-Read community is residential in nature with a small number of businesses interspersed. The community is well established in the city and has been home to generations of families. The community has had to endure and battle blight and crime, including public drinking, drug dealing, prostitution, extensive loitering, vagrancy, and fighting.

7. As it relates to the proposed location, several of the protestants are life long residents of Edgewood-Read community and live across the street from or in the immediate vicinity of the convenience store. They all eloquently and passionately described the nature of crime associated with the sale of beer at the location under previous proprietors – and the contrast and diminishment of the level of crime during the three years that the location was closed prior to Petitioner’s recent opening of the convenience store in October of 2006. When the convenience store operated with a beer and wine permit, the residents experienced crime and numerous disturbances such as drug dealing, public drinking, drunkenness, public urination and defecation, prostitution, loitering, vagrancy, littering, indecent exposure, and boisterous profanity.

8. The neighborhood is currently undergoing a revitalization, as evidenced by the renovation of some existing homes and construction of new homes, as well as the development and construction of the Drew Wellness Center. Moreover, certain churches in the community bought at least two properties where alcohol was once sold and other houses where drug activities occurred in order to eradicate the social ills associated with these activities and to further aid in the revitalization of the neighborhood. Also, children of the neighborhood walk past this location to attend Carver Lyon Elementary School, which is located one tenth (1/10) of a mile from the proposed location, and C.A. Johnson High School, which is located approximately three (3) blocks from the proposed location. With the sale of alcohol, loitering of vagrants will most probably occur at the location, as it has in the past, with the attendant problems and crimes of profanity, public drinking, fighting, prostitution and public exposure; hence, the children will be subject to such nefarious displays. Finally, the community surrounding the proposed location already has four outlets that sell beer and wine and two others that are combination beer and wine and liquor outlets.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2006), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and S.C. Code Ann. §§ 1-23-310 et seq. (2005 and Supp. 2006).

2. “[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3. S.C. Code Ann. § 61-4-520 (Supp. 2006) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7).

4. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

7. The denial of a license to sell alcoholic beverages is appropriate where the proximity of the proposed outlet to areas of public congregation would aggravate problems related to the consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial of a retail beer and wine permit where the applicant’s property was already the site of congregations of people attended by some consumption of alcohol and disorder). Such denial is particularly appropriate when the public areas surrounding the proposed location have been the source of constant law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975) (upholding the denial of a retail beer and wine permit upon evidence that local law enforcement had constant problems with public intoxication in the vicinity of the applicant’s store).

8. Further, one who holds a license to sell alcoholic beverages is responsible for supervising the conduct of his clientele, both within the licensed premises and in the immediate vicinity, in order to ensure that his operations do not create a nuisance for the surrounding community. See, e.g., S.C. Code Ann. § 61-4-580(5) (Supp. 2006) (prohibiting a beer and wine permittee from knowingly allowing “any act, the commission of which tends to create a public nuisance or which constitutes a crime under the laws of this state” to occur on the licensed premises); see also A.J.C. Enterprises, Inc. v. Pastore, 473 A.2d 269, 275 (R.I. 1984) (holding that, upon licensure, a liquor licensee “assumes an obligation to supervise the conduct of its clientele so as to preclude the creation of conditions within the surrounding neighborhood which would amount to a nuisance to those who reside in the area”). And, where a licensed location becomes a public nuisance to the surrounding community, the licensing authority is generally authorized to revoke or to refuse renewal of the license for the location. See, e.g., S.C. Code Ann. § 61-4-580(5); Yu v. Alcoholic Beverage Control Appeals Bd., 4 Cal. Rptr. 2d 280, 286-87 (Ct. App. 1992) (noting that a liquor licensee is “charged with preventing his premises from becoming a nuisance” and holding that a liquor license may be revoked where the licensed premises have “essentially become a public nuisance”); see also Commonwealth ex rel. Ness v. Keystone Sign, Co., 513 A.2d 1066, 1067-68 (Pa. Super. Ct. 1986) (holding that a licensed liquor establishment could be enjoined from operating as a nuisance on the basis of the behavior of its patrons off of the licensed premises, where such behavior included public urination, loud and boisterous behavior, littering, drinking outside of the tavern, fighting, and other disorderly conduct).

11. In considering the Petitioner’s convenience store and the disturbances that have resulted from its prior operations under previous proprietors, I find the proposed location unsuitable for the issuance of a beer and wine permit. The community surrounding the proposed location is entitled to be free of the kinds of noise disturbances, criminal activity, and other nuisances that have been associated with prior operations at the location. “The right of a person to use his own property does not entitle him to violate the peace and comfort of others in the vicinity.” 3 S.C. Juris. Breach of Peace § 7 (1991). In the case at hand, this tribunal does not doubt the sincerity of Mr. Naik’s assurances to operate within the confines of the law and is not unsympathetic to the monetary expenditures he has made to open this business. Further, this tribunal acknowledges Mr. Naik’s utilization of security cameras inside and outside the convenience store. However, the attendant crimes and disturbances associated with the sale of alcohol at this location renders this location unsuitable for the sale of beer and wine.

The instant case is very similar to the matter of Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In that case, the applicant was seeking an off-premises beer and wine permit for his grocery store. Local law enforcement officers testified that the store’s parking lot, which, through no fault of the store, had become a place for local residents to congregate and was the site of frequent disturbances and other criminal activity. The South Carolina Supreme Court upheld the ABC Commission’s denial of the permit on the ground that, as “congregations of people on [the applicant’s] property are not infrequently attended by some consumption of alcohol and disorder[,] . . . . the Commission could reasonably have concluded that the situation would be worsened by making cold beer immediately available.” Id. at 58, 194 S.E.2d at 193. It is evident that the reintroduction of alcohol in the instant case will exacerbate and stimulate the criminal element in the community. As such, this business will, if granted a beer and wine permit, interfere with the nearby residents’ quiet enjoyment of their properties because of all of the aforementioned criminal activities and disturbances described by the protestants.[3] The evidence in the record does not provide this Court with any great comfort that any genuine changes in the manner in which Petitioner operates its convenience store will result in consequences any different from what residents experienced in the recent past, if alcohol is sold at this location. Accordingly, this Court cannot, in good conscience, approve Petitioner’s beer and wine permit given the recent troubled history the proposed location has had with the sale of beer and wine.

12. As the trier of fact, the issuance or denial of a permit or license rests within the sound discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit in the instant case is compelled because the issuance of the requested permit would be detrimental to the community surrounding Petitioner’s convenience store.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that Petitioner’s application for the issuance of an off-premises beer and wine permit for the premises located at 2414 Chestnut Street in Columbia, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

March 19, 2007

Columbia, South Carolina



[1] Specifically, the Department states:

[h]aving determined that statutory requirements for a valid protest have been met, the Department does not have the authority to issue the permit over the objection of such a public protest; rather, this matter must be heard by the Administrative Law Court. Other than the question of the suitability of the location as stated in the public protest, the Department has found that the applicant has met all other statutory requirements for licensure.

(Agency Information Sheet at 4).

[2] As of the date of the hearing, the record revealed that the database for the South Carolina Secretary of State was last updated on August 10, 2006.

[3] See Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985) (upholding the denial of a liquor license to a large “country-western music lounge-restaurant” with late closing times, because of the negative impact the lounge would have upon the surrounding residential community and nearby school); see also, e.g., Ex parte Trussville City Council, 795 So.2d 725, 727 (Ala. 2001) (upholding the city’s denial of a liquor license for a sports bar because the bar “was located virtually across the street from single-family detached residential zoning and in very close proximity to other land uses that were clearly not commercial in character (e.g., homes, schools, churches, parks)” and because the bar “could have a negative impact on the ‘family atmosphere of the community’ and that, at night, it could cause traffic problems to result”); Anton’s Inc. v. City of Minneapolis, 375 N.W.2d 504, 507 (Minn. Ct. App. 1985) (sustaining the city’s denial of a liquor license to a restaurant and nightclub where local residents presented legitimate, non-speculative concerns regarding “customers in the parking lot in early morning hours disturbing residents, overparking on residential streets, litter, noise, and the increased potential for late night disturbances due to the offering of entertainment in conjunction with a special privilege to remain open all night to serve food”); CDS, Inc. v. Camper, 438 S.E.2d 570, 574 (W.Va. 1993) (affirming the denial of liquor and beer licenses to a large music club located close to a residential area, where the licensing agency found that the club’s operations would result in parking on adjacent properties, loud noise emanating from the club and its parking lot, and general nuisances and disturbances in the community such that the club would “depreciate the values of [local residents’] property, and disturb their peace and tranquility, and the use and enjoyment of their property”).


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