ORDERS:
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing.
Petitioner Negash and Mengesh, Inc., seeks an off-premises beer and wine permit for its convenience
store, known as L&M Quick Stop, at 701 East Whitner Street in Anderson, South Carolina.
Respondent South Carolina Department of Revenue (Department) would have granted the permit but
for the protest filed by the City of Anderson (City), through its police department, regarding the
suitability of the proposed location. Accordingly, the Department was excused from appearing at the
hearing of this matter. On May 27, 2004, the City filed a motion to intervene in this case in
opposition to Petitioner’s permit application, and, by an Order dated June 21, 2004, this tribunal
granted the City leave to intervene in this matter. After timely notice to the parties, a hearing of this
case was held on June 29, 2004, at the South Carolina Administrative Law Court (ALC) in Columbia,
South Carolina. Based upon the applicable law and upon the evidence presented regarding the
suitability of the proposed location, particularly that concerning criminal activity at and near the
location, I find that 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.In January 2004, Yisihak A. Mengesha submitted an application on behalf of Negash
and Mengesh, Inc., to the Department for an off-premises beer and wine permit for the premises
located at 701 East Whitner Street in Anderson, South Carolina. This application and the
Department’s file on the application are hereby incorporated in the record by reference.
2.Negash and Mengesh, Inc., which Mr. Mengesha co-owns with his business partner,
Kifleyesus G. Negash, is a South Carolina corporation, incorporated on December 23, 2003, and
currently in good-standing with the South Carolina Secretary of State.
Mr. Mengesha and Mr.
Negash own the property on which the proposed location is situated in their individual names and
lease the location to their corporation, Negash and Mengesh, Inc.
3.Mr. Mengesha and Mr. Negash are over twenty-one years of age and have no
delinquent state or federal taxes. Further, the South Carolina Law Enforcement Division (SLED)
completed a criminal background investigation of Mr. Mengesha and Mr. Negash that did not reveal
any criminal arrests or convictions, and the record does not indicate that Mr. Mengesha and Mr.
Negash have engaged in acts or conduct implying the absence of good moral character.
4.Notice of Petitioner’s application was published in the Anderson Independent-Mail,
a newspaper published and circulated in Anderson, South Carolina, once a week for three consecutive
weeks, and proper notice of the application was posted at the proposed location for fifteen days.
5.Petitioner’s convenience store is located at the corner of Whitner and Dickens Streets
in the East Side community in Anderson, South Carolina. The proposed location has been operated
as a convenience store with a beer and wine permit under various proprietors nearly continuously
since the early 1970s. Mr. Mengesha and Mr. Negash have been operating their convenience store
at the location since January 2004, without beer and wine sales. The location is situated near several
residences, across the street from a church, and three houses down Whitner Street from the Anderson
County Alternative School.
6.At the hearing, Sergeant Michael Bracone, an officer in the vice division of the
Anderson Police Department, Randolph Dillingham, the director of the Anderson County Alternative
School, and the Honorable Gracie Floyd, a member of the Anderson County Council representing the
East Side community testified regarding the suitability of the proposed location. All three agreed
that, given the recent history of criminal problems and other disturbances in the East Side community,
the licensure of the proposed location for the sale of beer and wine would be detrimental to the
community.
7.In his testimony, Sergeant Bracone, who has patrolled the East Side in his capacity
as a vice officer, described how the area immediately surrounding the proposed location has become
a high-crime area in recent years.
In particular, he testified that this high-crime area, at the center
of which lies the proposed location, has, within the past several years, been the scene of frequent
criminal activity, ranging from minor offenses such as trespassing, loitering, and vandalism to serious
crimes such as drug trafficking, assaults, and shootings. He described in detail one incident during
which a disturbance at the location lead to a brawl between certain persons loitering at the location
and the responding police officers, including himself. To further substantiate his testimony, Sergeant
Barone produced a long list of calls for police service originating from the proposed location dating
back to 1999 and several police incident reports related to the location generated within the past year
and a half. While these calls for service and incident reports do not necessarily indicate that a crime
occurred at or near the location, and while many, if not most, of the crimes reported from the location
in these calls and incident reports are not directly related to the operations of the store at the location,
these documents, at the very least, provide probative evidence that the location is situated in a high-crime area. Sergeant Bracone further testified that the amount of loitering, trespassing, and other
disturbances at the location had noticeably decreased during the time the store has been operating
without a beer and wine permit.
8.Mr. Dillingham and Ms. Floyd, who are co-founders of the East Anderson Alliance
Task Force, a task force aimed at improving the East Side community, also testified at the hearing
that they had noticed that the amount of noise, loitering, traffic, public drinking, and litter in the area
surrounding the proposed location has decreased dramatically in the months that the proposed
location has been operated without a beer and wine permit. Both Mr. Dillingham and Ms. Floyd
stated their belief that this improvement is the result of the cessation of alcohol sales at the location
and that, if continued, this improvement will have great benefits for the surrounding East Side
community and the students of the Alternative School.
9.Mr. Mengesha testified at the hearing regarding how he and his partner, Mr. Negash,
are planning to operate the convenience store at the proposed location. While Mr. Mengesha did
state that he would not let individuals loiter at the location and that he would work with police
regarding the problems at the location, he did not provide any concrete testimony as to how he would
prevent the sort of problems associated with past operations at the location from occurring at his
store. He did not describe any physical changes to the property or policy changes to the business that
would differentiate his business from the other stores that had operated at the location in the past.
Further, Sergeant Bracone testified that, while he had discussed the history of problems at the
location with Mr. Mengesha and Mr. Negash, he did not believe that they would work closely with
police to prevent the re-emergence of problems at the location; in particular, he noted that the they
had not called the police for any sort of assistance during the several months their store has been
open.
10.Given the history of criminal activity and other disturbances at the proposed location,
I find that sale of beer and wine from Petitioner’s business at the location would only aggravate such
problems, and therefore, I conclude that the location is unsuitable for the operation of Petitioner’s
business with a beer and wine permit.
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. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2003).
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. 2003) 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.“[A] liquor license or permit may be properly refused on the ground that the location
of the establishment would adversely affect the public interest, that the nature of the neighborhood
and of the premises is such that the establishment would be detrimental to the welfare . . . of the
inhabitants, or that the manner of conducting the establishment would not be conducive to the general
welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).
8.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).
9.Given the history of frequent criminal activity and public disturbances at and around
the proposed location, I find that the sale of beer and wine at the location would be detrimental to
the general welfare of the surrounding community.
There is ample evidence in the record establishing that Petitioner’s property and the
surrounding properties are the site of frequent criminal disturbances, including problems ranging from
loitering and public intoxication to fighting and the sale of illegal drugs. The addition of the sale of
beer and wine to this volatile mix would only exacerbate the community’s significant crime problem.
And, while Petitioner is correct in noting that much of this criminal activity is not caused by its
business and that much of it is beyond its control, it is equally true that the location of Petitioner’s
business has become a gathering place for certain elements of the community, and that the expansion
of that business into the sale of beer and wine would only make a bad situation worse.
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973), is instructive on this point. In that
case, a grocery store and launderette was seeking a retail beer and wine permit. 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, was the site of frequent disturbances and other
criminal activity. The South Carolina Supreme Court upheld the Alcoholic Beverage Control
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. Such is the case here.
Petitioner’s convenience store has become a place of congregation not infrequently attended by the
consumption of alcohol and other intoxicants and by disorderly and criminal conduct. Accordingly,
I conclude that condition of the community surrounding Petitioner’s property would be worsened by
making beer and wine immediately available from Petitioner’s store.
10.This tribunal is mindful of the fact that Petitioner has invested significant time and
resources in attempting to secure the permit in question. Nevertheless, there was a sufficient
evidentiary showing in the present case that the proposed location is unsuitable for Petitioner’s
intended operations and that the issuance of the requested beer and wine permit to Petitioner would
have an adverse impact upon the surrounding community.
11.As the trier of fact, the issuance or denial of a permit rests within the sound discretion
of this tribunal. Inherent in the power to issue a permit is also the power to refuse it. Terry v. Pratt,
258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the requested permit in the instant case is
compelled because the issuance of Petitioner’s requested beer and wine permit would be detrimental
to the inhabitants of the community surrounding Petitioner’s store.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that Petitioner’s application for an off-premises beer and wine
permit for the premises located at 701 East Whitner Street in Anderson, South Carolina, is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
July 26, 2004
Columbia, South Carolina |
