ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 61-2-90 (Supp. 2003), § 61-4-520 (Supp. 2003), and S. C. Code Ann. §§ 1-23-310
et seq. (1986 & Supp. 2003), for a contested case hearing. JANT, Inc., d/b/a WJ’s Variety Store,
7133 Hwy. 908, Britton’s Neck, South Carolina (location) seeks a beer and wine permit. Donald
R. Everett, Elaine J. Everett, Terri Shelley and William F. Maloon each filed protests to the
application with the South Carolina Department of Revenue (Department). Because of the
protests, the hearing was required.
The hearing in this matter was held on January 25, 2005, at the offices of the
Administrative Law Court in Columbia, South Carolina. Both parties and one Protestant, Mr.
Maloon, appeared at the hearing. Evidence was then introduced and testimony was given. After
carefully weighing all the evidence, the Court finds that an off-premise beer and wine permit for
this location should be granted.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make
the following Findings of Fact by a preponderance of evidence:
1.The ALC has personal and subject matter jurisdiction.
2.Notice of the time, date, place and subject matter of the hearing was timely given
to all parties and Protestants.
3.Petitioner, JANT, Inc., is owned by Terence Larrimore and his twin brother,
Thomas Larrimore, its sole shareholders, who operate a convenience store called WJ’s Variety
Store at 7133 Hwy. 908, Britton’s Neck, South Carolina. JANT, Inc., is a South Carolina
corporation which is listed in good standing with the office of the Secretary of State in
Columbia, South Carolina.
4. The location is in a rural area of Marion County at the intersection of Highway
908 and Graham Road. There is a church located approximately 500 yards to the rear of the
location, and located at a greater distance from the location and across Graham Road is Britton’s
Neck Elementary School. A bar/club called Roger’s Place, which holds an on-premise beer and
wine permit, is located adjacent to the elementary school. There are also several residences in
the general vicinity of the location, the school and the church.
5.The store’s hours of operation are from 6:00 a.m. to 9:00 p.m., Monday through
Saturday. The location is closed on Sundays.
6.Terence Larrimore previously operated a convenience store at this location from
1986 through 1999. Both Terence and Thomas Larrimore also own and operate another
convenience store in Timmonsville, South Carolina.
7.Terence Larrimore and Thomas Larrimore are both over the age of twenty-one.
Both have also been residents of the State of South Carolina their entire lives and have
maintained their principal place of abode in South Carolina for the same length of time. They
are both of good moral character and have never had a permit or license for the sale of alcoholic
beverages or liquors suspended or revoked.
8. Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
9.Petitioner filed an application for an on-premise beer and wine permit. However,
at the hearing, it moved to have the permit application amended to request an off-premise beer
and wine permit.
10.Protestant William F. Maloon testified at the hearing in opposition to the location
being issued an on-premise beer and wine permit, citing concerns for the safety of people in the
vicinity and school children. However, he testified that the granting of an off-premise beer and
wine permit would not be as objectionable.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2003) grants jurisdiction to the Administrative
Law Court to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2003) sets forth the requirements for the
issuance of a beer and wine permit.
4.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision.
Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of
fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol
permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5.The weight and credibility assigned to evidence presented at a hearing is within
the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308
S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the
authority to determine the weight and credibility of the evidence before him”). Furthermore, a
trial judge who observes a witness is in the best position to judge the witness’s demeanor and
veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7,
10, 471 S.E.2d 154, 157 (1996).
6.Although "proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The
determination of suitability of location is not necessarily a function solely of geography; it
involves an infinite variety of considerations related to the nature and operation of the proposed
business and its impact upon the community within which it is to be located. Kearney v. Allen,
287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for
this Court to consider any evidence that demonstrates any adverse effect the proposed location
will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801
(1973). Furthermore, in considering the suitability of a location, it is relevant to consider
whether the testimony in opposition to the granting of a license is based on opinions, generalities
and conclusions, or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).
7.Unless there is sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that a Protestant
objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See
45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119
(1981).
8.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. Rather, they are privileges granted in the exercise of the state’s police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance
of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9.Petitioner meets all the statutory requirements for holding a beer and wine permit
at the location. Both Terence Larrimore and Thomas Larrimore have many years of experience
in operating convenience stores without incident. Furthermore, Terence Larrimore presented
himself to the Court as a credible witness, with another witness attesting to his good reputation
in the community.
Although the Court has concerns about the granting of an additional on-premise beer and
wine permit which would allow more consumption in this small rural area, there was no
evidence that the granting of an off-premise beer and wine permit for the location would have
any detrimental impact on the community. The Court shares the safety concerns of Mr. Maloon,
especially concerning the small children who attend elementary school nearby. However, I find
that there should be no adverse consequences by the granting of a permit to the location for the
sale of beer and wine which will be consumed elsewhere and not at the location.
For all of these reasons, I find and conclude that the request by Petitioner for a beer and
wine permit for off-premise consumption at the location should be granted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the request for an off-premise beer and wine permit for JANT’s Inc.,
d/b/a WJ’s Variety Store, 7133 Hwy. 908, Britton’s Neck, South Carolina is GRANTED.
AND IT IS SO ORDERED.
____________________________
Marvin F. Kittrell
Chief Administrative Law Judge
February 4, 2005
Columbia, South Carolina |
