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 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. 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. 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
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