ORDERS:
ORDER AND DECISION
This matter came before the Administrative Law Judge Division
on the application of Balkar Sandhu for an on-premises beer and
wine permit for a store located at 2500 Two Notch Road in Columbia.
Pursuant to notice a hearing was conducted on May 5, 1994 during
which the file of the Department of Revenue and Taxation was made
a part of the record. A copy is substituted for the original. The
issue presented was whether the location for Kater Keg Party Shop
is a proper one. Based upon the testimony and evidence presented,
I make the following:
FINDINGS OF FACT
1. The applicant is a legal resident of the United States
and has been a resident of South Carolina for over twenty years.
He is over the age of twenty-one.
2. The applicant does not have any criminal background and
is a person of good moral character.
3. Notice of the application was published in The State
newspaper and was posted at the location for the requisite period
of time.
4. No beer and wine or alcoholic beverage permits have been
issued to the applicant in the past and there are no violations of
any laws relating to beer and wine or alcoholic beverages.
5. The proposed location is 2500 Two Notch Road in Columbia
and is a convenience store that also serves food and has coin-operated food vending machines. The applicant wants to change the
character of the store to enlarge the grocery supplies and the menu
for take out food.
6. The location has been in existence as a store for over
twenty years and is currently licensed. The licensee is Llewelyn
Poole. There is no evidence of any violations against Mr. Poole on
this license.
7. The applicant began operating the location in October
1992 and the hours of operation are Monday from 10 o'clock in the
morning to midnight and Tuesday through Saturday from 9 o'clock in
the morning to midnight.
8. The location has experienced numerous problems with the
police and the applicant met with the local police to try to
resolve some of the problems.
9. The police requested that several items be done. These
are: to have a security guard patrol the area; remove the pay
phones located outside of the building; add more outside lighting;
remove curtains hanging on the inside windows to allow visibility
inside the building; and not to employ Terry Bracee because of
suspected criminal activity by him inside the store.
10. The applicant did all the items requested of him. He has
two security guards under contract to patrol the area, the outside
phones were removed to discourage loitering and prevent the use of
the phones for suspected drug activity, additional lights were
installed, the curtains were removed, and the employee was
terminated after his arrest for alleged drug activity.
11. The complaints by the police department all focused on
loitering and on suspected drug activity on the property. Some
arrests were made outside of the building and the employee was
arrested inside the building after an alleged sale of drugs. There
were a few incidents of damage to the property for windows broken
from the outside possibly caused by gunshots.
12. Area residents have been burglarized by some former
patrons of the Kater Keg.
13. This area of Two Notch Road has been a constant source of
police complaints over several years not all related to the
operation of this establishment.
14. The location is not within close proximity of any
churches, schools or playgrounds.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division is vested with the
powers, duties and responsibilities exercised by the former
Alcoholic Beverage Control Commission and hearing officers pursuant
to Chapter 23 of Title 1. S.C. Code of Laws § 61-1-55 (Supp.
1993).
2. S.C. Code § 61-9-320 (Supp. 1993) provides the statutory
requirements for this issuance of beer and wine permits. It states
in part:
No permit authorizing the sale of beer or wine
may be issued unless:
...
(6) The location of the proposed place of
business of the applicant is in the opinion of
the department a proper one. The department
may consider among other factors, as
indications of unsuitable location, the
proximity to residences, schools, playgrounds,
and churches. This item does not apply to
locations licensed before its effective date.
S.C. Code § 61-9-320 (6) (Supp. 1993).
3. Although "proper location" is not statutorily defined,
"rather broad discretion is vested in the Commission in determining
the fitness or suitability of a particular location." Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This
determination of suitability is not solely a function of geography,
but involves an infinite variety of considerations related to the
nature and operation of the proposed business and its impact upon
the community where it is to be situated. Kearney v. Allen, 287
S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC
Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
4. In addition, proximity of a location to a church, school,
playground, or residence is a proper ground, by itself, on which
the location may be found unsuitable for a permit to sell beer and
wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653
(S.C. 1991).
5. Inherent in the ability to grant a license is the ability
to place restrictions on the operation of the business for the
license issued.
DISCUSSION
The location has experienced numerous problems with the police
in the past. However, the applicant is working with the police to
resolve some of the problems. The main problem is the loitering
outside of the building which possibly leads to other illegal
activity involving the sale of drugs. It is not unreasonable for
the police to make requests of the applicant to assist in reducing
the loitering and other possible criminal activity. Continued
criminal activity on the premises and in the area immediately
surrounding the building must be considered in determining the
continued suitability of the location for any type of permit for
the sale of beer and wine. No one can insure that criminal
activity will not take place but steps to reduce it must be
favorably considered. If the problems are not resolved then the
protests can be renewed when it is time to renew the permit.
The applicant would agree to certain restrictions on the
permit. These include continuing security patrolling the area,
posting "No Loitering" signs, and taking other steps to discourage
loitering on the premises. The applicant would like to rehire
Terry Bracee if he is not convicted of any criminal activity
because he was a good employee. However, the presence of Mr.
Bracee on the premises as an employee may disrupt the progress that
is being made to change the character of the location. It would
not be prudent to disregard the cooperative efforts that have been
established with the local police authorities by rehiring a person
who is suspected of illegal drug activity on the premises.
On a trial basis the applicant should be granted a license
provided that he continues to work with local law enforcement, that
security guards continue to patrol the area, and that signs be
erected prohibiting loitering on the property. Continued
complaints of illegal activity on the property and incident reports
from the local police authorities must be a factor in determining
whether to renew the permit.
ORDER
Based upon the Findings of Fact, Conclusions of Law, and
Discussion above, it is
ORDERED that an on-premises beer and wine permit be granted to
the applicant, Balkar Sandhu upon the condition that he continue to
work with the Columbia Police Department to reduce suspected
criminal activity on the property, that security guards continue to
patrol the property, that signs be posted to discourage loitering,
and that Mr. Terry Bracee not be re-employed on the premises. A
violation of any of the restrictions placed on the license may be
used by the Department as a basis for suspension or revocation of
the license.
AND IT IS SO ORDERED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
June __, 1994
Columbia, South Carolina |
