SC Administrative Law Court Decisions

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: