Sixpack Sez

Response to Daily News editorial
On stop-and-go crackdown

By Hung Ngo

Board Member, Asian American Licensed Beverage Association

The Daily News Editorial “Wrong Cure for Stop-N-Gos” published on July 6, 2006 correctly indicates that the beer-to-go permit process violated the due process rights of store owners because City Council commingled legislative and prosecutorial functions. However, the Daily News should not receive too much credit for this obvious conclusion. After all, an eight grade student, after his/her first day of government class could tell you Council’s Actions were an unlawful abuse of power. Instead of detailing the manner in which these store owners fundamental rights were completely ignored, the editorial takes the position that Council’s actions were understandable, almost to the point of justification. The Newspaper rationalizes Council’s actions by again conveniently using these businesses as scapegoats for many of the problems in the City.

Therefore, I feel it is necessary to provide the other side of the story, and to clear up some inaccuracies that were reported. To begin with, your editorial incorrectly states that a state liquor license being granted to a store is dependent on Council’s acceptance of a beer-to-go permit. The to-go permit only affects sales for off-premise consumption. Therefore a bar that has little, or no, take-out sales would not be affected by this provision at all. If the City and State really wanted to give the community a voice on all licensed establishments, why do they restrict the licensing requirement on take-out beer? For example, if a bar that sells no take-out beer is still a great nuisance to the community wouldn’t it make sense for them to have to go through a similar process to sell beer for in-house consumption? Is it acceptable for them to avoid the same scrutiny faced by delis because they make all their profit form “in store” sales?

Additionally, let’s dispel any notion that Council members recused themselves on votes in their district. The overwhelming evidence clearly indicates they did not. In a majority of the take-out permit cases the City Councilman in a store’s district was the sole protestor against the store. Additionally, in many cases, City Council went against the hearing examiner’s recommendation for approval. By the way, these hearing examiners were hired by Council, which is another clear conflict of interest. Anyway, in a large number of cases where the evidence clearly favored the business owner, City Council still voted to deny a store’s take-out permit, supposedly based on the evidence presented, and not just to adhere to their colleague’s wishes. In one of the most egregious examples, the sole protestor to a store’s permit removed their protest. Therefore, with no opposition to the store’s application you would think the store would receive approval from Council without a problem. Think again, Council denied the application. In other cases which Council denied, store owners brought petitions and witnesses from the community to support their application. Council’s actions demonstrated a total disregard for fairness. They did not even bother with the pretense that they were abiding by the rules that they themselves created.

In light of these details, I would like to challenge the Daily News to question the Council Members on their actions. Hopefully, there will be one Council person with enough integrity to admit they did not judge these stores on just the evidence presented. At the same time, I would implore the Daily News to not ignore the other side of the issue. Even in your editorial you stated that “some” of these stores have caused problems. Overall, your coverage on this issue would leave the uninformed with the assumption that all stores that sell take-out beer are menaces to their communities. This is simply not true. Act 39 unfairly treats all licensees that sell take-out beer, not just “some” of the irresponsible owners.

One of the more disturbing aspects of the attacks on stores that sell take-out beer is the apparent hypocritical stance on the issue of alcohol by the media, City, and State. The Daily News editorial implies that there is something wrong with having beer as a high selling product in a store. The article claims that food served in delis are “more loss leaders for the No. 1 products for sale: beer and malt liquor.” These stores are selling beer, not under the counter AK-47s. The Daily News stance would be a little more understandable if they weren’t strong promoters of beer consumptions themselves. In addition to the numerous ads for Happy Hours at bars all over the City, the paper devotes a weekly column strictly to beer. Does anyone else see the ridiculous contradiction of criticizing a store for selling too many six packs, while having a weekly feature named “Joe Six Pack”?

Similarly, the politicians of Philadelphia have very confliction positions when it comes to licensed establishments. On the one hand, in many of the cases City Council, not the community, was the only protestor against a store’s take-out permit. Amazingly enough, some of these stores were such nuisances to the community, yet not one neighbor or fellow business owner came forth to testify against the store. On the contrary, at times, Council has demonstrated strong support for bar owners’ rights. The reason the smoking ban stalled for such a long time was because many Council members were rightfully concerned about the impact to bar owners business. In fact Council agreed to exempt bars where food sales are less than 10% of total sales from the ban. Therefore, these bars are receiving preferential treatment because all they sell is beer. Interestingly enough, delis are persecuted because they sell too much beer. Even the author of the original smoking ban bill Mayor Street stated that “people think having a bar in the neighborhood where they can go and smoke and drink is almost a right, almost like a God-given right”. According to Mayor Street the neighborhood bar is not only socially acceptable, but an expectation of the citizens in Philadelphia. Thus, it is difficult to understand why it is so wrong for a person to have the option of picking up a six pack of beer to drink in the comfort of his/her own home.

The State has also definitely sent a conflicting message with their various beer laws. While Act 39 establishes a ridiculously difficult process for take-out beer sales, just in Philadelphia, the State has eased the accessibility of alcohol otherwise. Along with beer distributors now being allowed to open on Sunday, State liquor stores are now being placed in supermarkets. This will make it much easier for shoppers to pick up all their household products and hard liquor at the same time. Additionally, somehow state stores are exempt from the take-out requirement even though their products contain much more alcohol per volume than anything sold at a deli.

Finally, the editorial’s suggestion that by involving another City Agency the process would become fair is off base. First, it is hard to believe that City Council does not have great influence with any City Agency chosen. Also, and even more importantly, regardless of what City Agency selected the take-out permit portion of Act 39 is fundamentally unfair and discriminatory. Again, Philadelphia licensees are the only ones affected by this provision, state stores are exempt, and bars that sell little or no take-out are really not affected. As a matter of fact, I can not think of any other business (grocery store, strip club, casino) that must go through what amounts to periodic zoning hearings. If other businesses types were forced to go through a similar process, to conduct business in the City, there would be numerous legitimate businesses shut down. After all, in a vast majority of the cases City Council denied where there was actually community members in opposition to the store’s application, there were less than a handful of protestors to the store. In almost any type of business I am sure that you could find some people who oppose the business for whatever reasons. However, it is wrong to even to allow a vocal minority to represent an entire community’s view, and to take away someone’s livelihood based on this.

Finally, one of the main reasons beer deli owners have faced so much criticism is because we make an easy scapegoat. It is convenient for politicians, a few neighbors, and the media to blame take-out beer for all the society ills faced in the City. This is clearly evident in City Council’s use of police incident reports as a major criterion to protest a store. These reports identified incidents in the area of the store, and did not accurately reflect problems caused by the sale of take-out beer. The incidents included everything from traffic stops, car theft, and other unrelated 911 calls to anything else imaginable. Attributing all the problems in a community to the sale of take-out beer, without any evidence is wrong. Act 39 assigns deli owners the impossible task of policing their entire neighborhood.

Instead of enacting an unfair law that would clearly cripple many responsible business owners, I suggest the City, State, and the Daily News make an honest assessment of the fairness of this law. Hopefully, at the end of the day we will be able to work together to address any legitimate concerns regarding this issue, while also protecting the livelihoods of responsible business owners, who do not deserve to be persecuted just because they sell take-out beer.