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What a nuisance!

Officials, neighbors say it's a headache trying to close trouble-plagued bars

Bottles of alcohol sit on a shelf behind the bar inside Cheers in Upper Darby on May 19, 2010. ( David Maialetti  /  staff photographer )
Bottles of alcohol sit on a shelf behind the bar inside Cheers in Upper Darby on May 19, 2010. ( David Maialetti / staff photographer )Read moreDaily News Photograph

WITH FOUR NUNS by his side, Bob Herdelin stood at the steps of the Upper Darby police station earlier this month and announced a $1.7 million libel suit against Superintendent Michael Chitwood for calling his bar, Cheers, a "cesspool" and a "criminal enterprise."

The ladies from the Sisters of St. Joseph's Convent in Philadelphia had come to tell reporters that Herdelin's multimillion-dollar Shore houses, where he lets them stay for free, are "immaculate."

But the nuns had never been to Herdelin's bar, and they didn't follow him back for a shot and a beer. If they had, they might have been saying Hail Marys instead of hailing Herdelin.

Cheers is a dirty, dilapidated dive at 69th and Market streets in Upper Darby. The stench of stale smoke hangs in the air. Patrons drink canned beer through a straw — a technique that urban legend says quickens intoxication — and many were visibly drunk before 1 p.m. on a recent weekday.

Chitwood's officers have responded to Cheers more than 300 times since 2007 for a range of offenses, including a fatal shooting, fights, asaults, robberies and drug deals. But he hasn't been able to get the place shut down, he says, because the system for doing so is murkier than misty moonshine.

"This is what bugs the hell out of me!" Chitwood said. "When there is a public-safety concern, [the state Liquor Control Board] should immediately take action. They don't, because of the bureaucracy."

Most people familiar with the process agree that it's more than a nuisance to get a nuisance bar closed. "There's a level of frustration in law enforcement in general with respect to the process," said state Police Sgt. Bill LaTorre of the Philadelphia office of Liquor Control Enforcement, an entity separate from the LCB.

The nuances of a nuisance

A nuisance bar, as defined by LCB literature, is: "Any establishment in which people, such as employees, owners or patrons, conduct an activity that adversely affects the peace and safety of the surrounding community."

It's not a legal term, but one that has been around for at least three decades and has been adopted by the news media and by the LCB itself, said Stacey Witalec, an LCB spokeswoman.

LaTorre said nuisance bars are more prevalent in his district — which includes 3,272 licensed liquor establishments in Philadelphia, Delaware and Chester counties — than anywhere else in the state.

"People aren't worried about getting shot on the dance floor in Punxsutawney," he said.

On April 14, four people were shot — two fatally — at Lid's bar in Philadelphia's Nicetown section, according to police, who said they'd responded to the bar in the past for other incidents.

In one February weekend, a man was shot to death inside the Upper Deck Club in Germantown and another four people were shot — one fatally — at Club Black Diamond in North Philadelphia less than 24 hours later. Patrons at the Black Diamond said the club was past capacity and had been triple-booked.

Last June, Philadelphia Police Officer Ashley Hoggard was shot outside the Franchise Sports Bar in North Philadelphia while responding to the shooting of three others there. All four men survived.

In November 2007, four patrons were gunned down — two fatally — outside the same bar, an establishment neighbors said they have been complaining about for years.

On May 16, when authorities raided Sir Richard's Bar on Lancaster Avenue near Ogden Street in West Philadelphia after about 300 disturbance calls there in the past 18 months, it was discovered that Richard Hamilton, the bar's owner and a convicted felon, had three guns and "all kinds of ammo" inside, city police said.

Hamilton, 72, was taken into custody, and his bar was immediately shut down for License and Inspections violations, according to police.

And on Friday, Upper Darby Police Officer Ray Blohm survived being shot four times by a man he stopped behind Brownie's Pub who, police said, had crack, pot, a scale and a gun in his possession.

Cops said they've responded to Brownie's 98 times in the last year alone for assaults, robberies and other offenses.

Of the three ways to shut down a nuisance bar, the quickest is by citing an establishment for violations of the health code or policies of the Department of Licenses and Inspection. But that's often only a temporary solution.

In Philadelphia, 360 bars were ordered to cease operations for L&I violations from January 2009 to April, but 229 have since reopened, police said.

After a March homicide at Cheers, Chitwood raided the bar with 50 officers from various agencies, including the Upper Darby Township Health Department, which cited the bar for numerous violations, temporarily closing the place.

Even though police said the raid had netted four drug arrests, three underage drinkers and three illegal poker machines, Herdelin was able to reopen within two weeks after fixing the health violations.

A second way to close a nuisance bar is for the LCB's Bureau of Licensing director to object to the renewal of a liquor license when it comes up — every two years.

A hearing is held before an examiner, who is a contracted attorney appointed by the governor to oversee licensing cases, said Witalec of the LCB.

The examiner has 30 days to make a recommendation to the three-member LCB. The board has no deadline to decide, Witalec said.

But it can take months just to schedule a hearing, during which time the bar can remain open. In the case of Cheers, Herdelin was notified in November of a hearing that didn't occur until the first week of May.

During that time, more than 38 other police incidents happened in and around the bar, including a murder, Chitwood said.

Besides, sources said, it's a conflict of interest for the LCB, which issues and renews liquor licenses, to be the same agency that sells the liquor to the establishments they regulate.

Nathan Benefield, director of policy research for the Commonwealth Foundation, a nonprofit research and educational institute that, among other things, supports the privatization of liquor stores, agreed.

"The LCB regulates alcohol sales, but they are also the vendor in the business of distributing and selling alcohol. That seems like a dual role," he said. "They decide whether you get a license or not, but they are getting revenue from each of these establishments.

"It's like asking one business partner to regulate the other one."

Witalec countered that the LCB is just following the law.

"It's in statute that way. It's a legislative issue," she said. "This is what the agency has been charged to do, and we care about that duty and take it very seriously."

Even with a recommendation to close a bar, the LCB doesn't have to follow the wishes of the examiner or the community.

Witalec could not provide hard numbers on how often the board follows the examiner's recommendations, except to say that it's "about 80 to 90 percent of the time."

In the case of Richard Hamilton, the convicted felon who runs Sir Richard's, law-enforcement sources said the bar's license was renewed in 2008 despite opposition from local officials who wanted the bar closed because of repeated police calls and disturbances.

Stacy Kriedeman, an LCB spokeswoman, said the agency had asked Philadelphia police for more information on the bar but never received it.

"It's not easy to pull a liquor license. It's not easy to not renew it," she said. "It's a difficult process and you have to have sufficient evidence."

Police said Hamilton's license was renewed despite requests to the contrary and his 2007 conviction in Texas for carrying a kilo of cocaine in his car.

Kriedeman said that Hamilton wrote on his renewal application that he had no criminal convictions, and that the LCB does not do background checks on all renewal applicants.

Even after the board rules on a license renewal, the licensee can appeal to Common Pleas Court, then appeal to Commonwealth Court and finally to the state Supreme Court, at all times remaining open for business.

LaTorre, of Liquor Control Enforcement, said that allowing nuisance bars to stay open during the appeals process is absurd.

"Why doesn't the Liquor Control Board yank that temporary authority?" he said. "They're the ones that gave it to them."

State Sen. Larry Farnese, whose district covers parts of Center City, South Philly and Northern Liberties, called the appeal process a "loophole."

"It's bad and it's a frustrating situation from my point of view as an elected official," he said.

Farnese said he raised the issue to the LCB at a recent hearing.

"I said, 'In Pennsylvania, if you are on death row, while your appeal is pending, you are not taken off death row and you're certainly not allowed to go free,'" he said.

The petition option

The LCB tells those who are at their wits' end with a nuisance bar to petition their county court under a portion of the liquor code called Section 611, which allows district attorneys, municipalities and residents who live within 500 feet of a bar to ask for its immediate closure as a public nuisance.

Beth Grossman, chief of the Philadelphia District Attorney's Public Nuisance Task Force, said even a 611 case can take up to a year to get to trial, although if a strong danger to the community exists, a preliminary injunction can be filed to get a bar closed while the action is pending.

If a 611 action is successful, a bar can be padlocked for up to a year, and the license can't be transferred, Grossman said.

"After the year goes by, they can seek to have it reopened, but in my experience if we are successful in a 611, the Liquor Control Board will give serious consideration to not renewing a license," she said.

LaTorre said that 611 actions are not brought lightly and that the bar must have a documented history of serious trouble.

Grossman, who first tries to work with bar owners before filing a 611, said her office brings up to four 611 actions a year and has a high success rate.

Chitwood thinks it's ironic that the "hierarchy" of the LCB told him to pursue a 611 to get Cheers closed.

"I'm thinking, 'Wait a minute, you're the Liquor Control Board and you're advising me to go through this other process?'" he said. "The first thing I say is, 'Duh?'"

As for Herdelin, he said he plans to get out of the bar business at the end of the year, "one way or another."

He said he will return for his libel trial against Chitwood and will bring with him the four nuns and Oprah Winfrey, who he said had rented one of his beach houses for a week but whom he did not meet.

"My feeling is the jury will believe four nuns and Oprah Winfrey over a psychopathical liar," said Herdelin, 69.

Chitwood, the outspoken veteran lawman, remains unfazed.

"He's not suing a virgin," Chitwood said.