ORDERS:
FINAL DECISION
Petitioner seeks an on-premises beer and wine permit, a minibottle license, and an alcoholic
liqueurs cooking license for the Radisson Grand Hotel, located at 9700 Regent Parkway, outside
the city of Fort Mill, York County, South Carolina.
By Order of this tribunal, protestants Robert G. Zanesky and Barbara J. B. Zanesky were granted
leave to intervene as parties. Jean Adams, who was not present at the hearing, filed a joint motion
with protestants for intervention which was granted. Captain Doug Taylor of the York County
Sheriff's Department is a protestant of record.
FINDINGS OF FACT
1. Petitioner's application to the South Carolina Department of Revenue ("Department") was
made a part of the record by reference without objection.
2. Petitioner David Norbut is Vice President of Operations for Signature Hospitality Resources
Charlotte LLC, d/b/a Radisson Grand Hotel ("hotel").
3. Petitioner seeks an on-premises beer and wine permit (AI 109295), a sales and consumption
license ("minibottle") (AI 109296), and an alcoholic liqueurs cooking license for the hotel.
Hereinafter, for ease of discussion, the beer and wine permit and the minibottle license will be
referred to as licenses.
4. The hotel is located at 9700 Regent Parkway #328 outside the city of Fort Mill, York County,
South Carolina. This hotel is a part of a 600 acre resort community formerly known as PTL
and/or Heritage U.S.A.
5. The hotel is leased by Signature Hospitality Resources from Regent Carolina Corporation.
6. The hotel is a resort and conference center which provides rent accommodation for lodging on
a regular basis. It has 500 rooms for rent and several thousand square feet of "meeting" space for
conferences. Also, the hotel has two restaurants and some shoppes on its first floor.
7. The resort community includes the hotel and consists of hiking and biking trails, tennis courts, a
softball field, a golf course, an amusement complex, a water park, residential and multiple family
dwellings. Future commercial and retirement developments are planned for the resort community.
See Petitioner's Exhibit #1.
8. No church, school, or playground is within 500 feet of the hotel. The South Carolina Law
Enforcement Division ("SLED") Report indicates that the Mount Zion AME Church, the Little
White Dove Wedding Chapel, and the Appleseed Child Development Center are all at least two
(2) miles away from the hotel. Clearly by shortest pedestrian route or vehicular travel along the
public thoroughfare, the distance from the hotel to these entities exceeds 500 feet.
9. At one time, petitioner leased space for church services at the hotel, however, this has been
discontinued. Also, the Appleseed Child Development Center is not opposed to the issuance of
the alcohol licenses to petitioner. The water park, Carolina Splash, located directly behind the
hotel is a commercial enterprise, owned and managed by Regent Carolina, which is independent
of the hotel. The water park is open to the general public for an admission fee. This facility is a
seasonal business, open daily usually during the months of June through August from 11:00 a.m.
to 7:00 p.m. The staff of the facility is large and approximately 60 lifeguards are employed.
10. The intervenors reside in the residential area of this community which is separate from the
hotel resort area.
11. As illustrated in Petitioner's Exhibit #1, intervenors reside in the area designated as No. 13.
The resort community is dissected by a railroad track. The hotel and resort area consists of
everything east of the railroad track with the primary residential area located to the west of the
railroad track. However, there are condominiums/tennis villas located west of the railroad track.
12. The hotel provides full-time security guards who patrol the hotel grounds to ensure the safety
of the guests.
13. The roads of the resort are in good repair and are not hazardous.
14. The petitioner is of good moral character. SLED completed a criminal background
investigation of petitioner, which revealed no criminal violations; and, petitioner has not engaged
in acts or conduct that imply the absence of good moral character.
15. Petitioner is at least twenty-one (21) years of age, a U.S. citizen, a resident of the State of
South Carolina, and has maintained his principal residence in the State for at least thirty (30) days
prior to the date of making application for the licenses.
Petitioner moved to South Carolina in January of 1996 with intentions of remaining and making
South Carolina his domicile. He intends to move his wife and two children to South Carolina
from Houston, Texas when the elementary and high school terms conclude for 1996-1997. Also,
petitioner has a valid South Carolina Driver's license and is registered to vote in this State.
16. Notice of the application appeared in the Fort Mill Times, a newspaper of general circulation
in the area of the hotel, for at least once a week for three consecutive weeks and notice was
posted at the hotel for fifteen days.
17. Petitioner has not had an alcohol and beverage permit or license revoked within two years of
the date of his application.
18. The Department did not oppose petitioner's application.
19. No residents of the resort community other than intervenors filed a formal protest to the
Department. However, the intervenors offered into evidence, without objection, a petition signed
by residents or homeowners opposed to the issuance of the alcohol licenses to petitioner. See
Respondent's Exhibit #4.
20. Intervenors contend that petitioner does not meet the statutory requirements to hold the
alcohol licenses for which he applied. Specifically, intervenors contend that:
a. Church services are being held in the hotel;
b. Religious groups rent space and conduct seminars at the hotel;
c. There is inadequate police protection for the hotel;
d. A playground is located within 500 feet of the hotel;
e. A school is located on the grounds of the resort community;
f. The resort area is substantially residential;
g. The roads of the resort community are hazardous and accidents have occurred as a result
thereof; and,
h. The owner of the hotel resort made representations that the community would be
alcohol-free.
21. It is evident from the testimony of intervenors that they have an aversion to the use or sale of
alcoholic beverages.
22. The protestant Captain Doug Taylor of the York County Sheriff's Department appeared as a
public service to intervenors, as it is the policy of the Sheriff's Department to assist any citizen
opposed to an alcoholic beverage application. In observing the demeanor, intonations, and
hesitations of Captain Taylor during his testimony, and the content of the testimony itself, it is
clear to this tribunal that no concrete evidence was offered to establish that the Sheriff's
Department would not be able to provide adequate protection to the hotel. Captain Taylor
believed that where alcohol is served "people are going to be drinking and driving more." Many
of the Captain's conclusions were based on hypothetical or conditional situations, not actual facts
relating to the hotel. Direct questions put to the Captain concerning the impact the service of
alcohol at the hotel would have were answered with uncertainty, hesitancy, and speculation.
SeeTranscript at 90-100.
23. No concrete evidence was presented to show that the issuance of the alcohol licenses or
liqueurs license to petitioner would have an adverse impact on the community. Further,
intervenors presented no substantive evidence which would act as a statutory bar to the issuance
of petitioner's licenses.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
A.
1. S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976 Code, as
amended, authorizes the South Carolina Administrative Law Judge Division to hear this case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) establishes the criteria for the issuance of a beer and
wine permit.
3. S.C. Code Ann. § 61-5-50 (Supp. 1995) establishes the criteria for the issuance of a minibottle
license.
4. S.C. Code Ann. § 61-3-610 (Supp. 1995) allows an establishment which offers meals to the
public to secure a license from the Department to purchase and possess liqueurs, wines, and
similar alcoholic beverages used solely in the cooking and preparation of foods served by the
establishment.
5. The preponderance of the evidence "is evidence which is of the greater weight or more
convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary
1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when
considered and compared with that opposed to it, has more convincing force and produces in the
mind the belief that what is sought to be proved is more likely true than not true." Sanders,
Neese, and Nichols, South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil
Cases(1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).
6. Evidence of allegations must be sufficient and probative of the matter to be proven. See
Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699 (1962).
7. The test for the sufficiency of a proffer of evidence to warrant a finding is as follows:
A . . . finding must be based on the evidence and . . . on the facts proved . . . . [A]lthough
difficulty of proof does not prevent the assertion of a legal right, the . . . finding cannot rest
on surmise nor can it rest on mere speculation. Likewise, . . . a . . . finding cannot rest on
conjecture. . . guesswork . . . or rest on supposition, assumption, imagination, suspicion,
arbitrary action, whim, caprice, illogical and unsound reasoning, innuendo, percentage,
likelihood, mere theory, or conclusions that are in conflict with undisputed fact . . . The
evidence on which the . . . finding is based must be competent, legal evidence received in
the course of the trial, credible, and of probative force, and must support every material
fact. The decision should be against the party having the burden of proof where there is no
evidence, or the evidence as to the material issue is insufficient. . . . (emphasis added).
32 C.J.S. Evidence § 1042 (1964); see also S.C. Code Ann. § 1-23-320(I) (Supp. 1995).
8. Evidence has probative value "if it tends to prove an issue." Black's Law Dictionary 1203 (6th
ed. 1990).
9. "The qualification of a witness as an expert in a particular field is within the sound discretion of
the trial judge." Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984);
S.C. Dep't of Highways and Public Transp. v. Manning, 283 S.C. 394, 323 S.E.2d 775 (1984).
However, where the expert's testimony is based upon facts sufficient to form the basis for an
opinion, the trier of fact determines its probative weight. Berkley Elec. Coop. v. S.C. Public
Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak, supra. Further, a trier of fact is not
compelled to accept an expert's testimony, but may give it the weight and credibility he
determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d
61 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980).
10. A trial judge, who observes the witness, is in the better position to judge his demeanor and
veracity and evaluate his testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App.
1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v.
Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392
(1973).
11. Although "proper location" is not statutorily defined, broad discretion is vested in the
Administrative Law Judge Division in determining the fitness or suitability of a particular location.
Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
12. As the trier of fact, an administrative law judge is authorized to determine the fitness or
suitability of the proposed business location of an applicant for a permit to sell beer and wine
using broad, but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984).
13. The determination of the suitability of a location is not necessarily a function solely of
geography. It involves an infinite variety of considerations related to the nature and operations 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. ABC Comm'n, 276 S.C. 138, 276
S.E.2d 308 (1981).
14. There was not a sufficient evidentiary showing that the present location is unsuitable or that
the issuance of the alcohol licenses would affect the residents' safety, create traffic problems, or
have an adverse impact on the community. The proposed location and the nature of the business
activity are suitable and proper given the resort nature of the area in which the hotel is situated.
15. The denial of a license or permit to an applicant on the ground of unsuitability of location is
without evidentiary support when relevant testimony of those opposing the requested license or
permit consists entirely of opinions, generalities, and conclusions not supported by facts. Smith v.
Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973).
16. Without sufficient evidence of an adverse impact on the community, the application must not
be denied if the statutory criteria are satisfied. The fact that the issuance of a permit or license is
protested is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d
Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981). The
grounds proffered by the intervenors as justification for denial of petitioner's permit and license
are speculative and/or not supported by sufficient evidence.
17. Petitioner satisfies all of the statutory requirements for holding an on-premises beer and wine
permit, a minibottle license, and a license for the purchase of liqueurs and wine for cooking
purposes.
18. The question of a person's place of residence is largely one of intent to be determined under
the facts and circumstances of each case. The act and intent and not the duration of residence are
determinative. See Nagy v. Nagy-Horvath, 273 S.C. 583, 257 S.E.2d 757 (1979), Ferguson v.
Employers Mut.Cas. Co., 254 S.C. 235, 174 S.E.2d 768 (1970); Gasque v. Gasque, 246 S.C.
423, 143 S.E.2d 811 (1965); Miller v. Miller, 248 S.C. 125, 149 S.E.2d 336 (1966).
B. In the instant case, intervenors oppose petitioner's application. This tribunal recognizes and
respects the intervenors' rights to hold such sentiments. However, the fact that they protest,
without more, is not a sufficient basis to deny the licenses in question. The mere aversion to the
sale of alcoholic beverages by the hotel is not a sufficient basis on which to deny petitioner's
application. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). While this tribunal is
cognizant that this resort area was founded or at least operated as part of a religious ministry, this
has changed. Furthermore, standards for judging the suitability of a proposed location for the sale
of alcoholic beverages are not determined by a local community's religious convictions or moral
litmus test. Criteria must be uniform, objective, constant, and consistent throughout the State.
The sale of alcoholic beverages is a lawful enterprise in South Carolina, as regulated by the State.
The sale and consumption of alcohol at the hotel is consistent with and not adverse to the nature
of a resort community. It is a commonly known fact that "wines and liquors are a part of the
supplies which meet the wants of a portion, at least, of the traveling public and the places for
accommodation and entertainment of travelers, such as hotels . . ., almost universally sell to their
guests and patrons whiskies, wines, and liquors." 45 Am. Jur. 2d. Intoxicating Liquors § 357
(1979). More importantly, petitioner satisfies all of the statutory grounds enacted by the South
Carolina General Assembly for holding an alcoholic beverage permit and license, and this tribunal
has neither the authority nor the inclination to conduct local referenda on whether a particular
community is opposed in principle to the sale of alcoholic beverages. Finally, this tribunal is
constrained by the record before it and must base its decision whether or not to issue an alcoholic
beverage license solely upon the relevant facts and the applicable law.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that an on-premises beer and wine permit, a minibottle license, and a liqueurs and
wine license for cooking are granted for the location at 9700 Regent Parkway, #328, Fort Mill,
York County, South Carolina.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises beer and
wine permit, a minibottle license, and a liqueurs and wine license for cooking to petitioner upon
the payment of the required fee(s) and cost(s).
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
November 26, 1996
Columbia, South Carolina |
