ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) upon the Petitioner’s
request for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et
seq. (2006), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and S.C. Code Ann.
§ 61-2-260 (Supp. 2006). The petitioner, G.J.E., Inc., d/b/a Emerald City
(“Emerald City”), applied for a permit to sell beer and wine for on-premises
consumption pursuant to §§ 61-4-500 et seq. and for a license to sell
liquor by the drink pursuant to §§ 61-6-1600 et seq. for the location at
2015 Pittsburg Avenue, Charleston, South Carolina 29405. James Atkins, Robert
Marsh, and Carl Ashenfelter filed written protests to Petitioner’s
application. Nancy Button filed a written protest on behalf of Rosemont
Neighborhood Association. Respondent South Carolina Department of Revenue
(“Department”) denied the application pursuant to § 61-4-525 and § 61-6-1825
due to the receipt of the Protestants’ valid public protests. The Department
indicated that it would have granted the permit and license but for the receipt
of the public protests.
After
notice to the parties and the Protestants, the court held a hearing on
Thursday, March 15, 2007 at the ALC in Columbia, South Carolina. Prior to the
hearing, James Atkins and Carl Ashenfelter withdrew their protests and Robert
Marsh indicated he would not be present at the hearing, thus invalidating his
protest. See §§ 61-4-525(C), -6-1825(C). On March 15, 2007, Nancy Button indicated that she would be unable to
attend the hearing. The Petitioner was present at the hearing as was the
Department. The hearing was scheduled to begin at 2:00 p.m. and by 3:00 p.m.
no one had appeared on behalf of the Rosemont Neighborhood Association.
Therefore, the court deemed the protest of
Nancy Button on behalf of the Rosemont Neighborhood Association invalid for
failure to appear pursuant to S.C. Code Ann. § 61-4-525(C) and § 61-6-1825(C). See § 61-4-525(C) (“If the protestant, during the investigation
expresses no desire to attend a contested hearing and offer testimony, the
protest is considered invalid, and the department shall continue to
process the application and shall issue the permit if all other statutory
requirements are met.”); § 61-6-1825(C) (“If the protestant during the
investigation expresses no desire to attend a contested hearing and offer
testimony, the protest is considered invalid, and the department shall continue
to process the application and shall issue the license if all other statutory
requirements are met.”). In addition, ALC Rule 23 provides:
The administrative
law judge may dismiss a contested case or dispose of a contested case adverse
to the defaulting party. A default occurs when a party fails to plead or
otherwise prosecute or defend, fails to appear at a hearing without the proper
consent of the judge or fails to comply with any interlocutory order of the
administrative law judge. Any non‑defaulting party may move for an order
dismissing the case or terminating it adversely to the defaulting party.
Because
no one on behalf of Rosemont Neighborhood Association appeared for the hearing,
it is hereby
ORDERED that this matter is remanded to the Department of Revenue with instructions to
continue processing the Petitioner’s application and to issue the requested on
premises beer and wine permit and restaurant liquor by the drink license
pursuant to S.C. Code Ann. § 61-4-525(C), § 61-4-540, § 61-6-1820, and §
61-6-1825(C) (Supp. 2006).
IT IS SO ORDERED.
_______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
March 16, 2007
Columbia, South Carolina
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