ORDERS:
ORDER OF DISMISSAL
The above-captioned case is before this Court upon the request of Respondent Bears of
the Beach, LLC, d/b/a Liquid Pearls, for a contested case hearing to challenge the decision of
Petitioner South Carolina Department of Revenue (Department) to revoke its restaurant
minibottle license and on-premises beer and wine permit for the premises located at 212 North
Kings Highway in Myrtle Beach, South Carolina. After timely notice to the parties, a motions
hearing on two motions filed by the Department, a Motion for Summary Judgment and Motion
to Dismiss filed on November 15, 2004, and a Motion to Compel filed on March 31, 2005, was
held at the South Carolina Administrative Law Court on April 21, 2005. Based upon the
documents filed by the parties in this matter, I find that, because Respondent failed to timely file
its request for a contested case, and thus failed to properly invoke this tribunal’s jurisdiction, this
matter must be dismissed.
BACKGROUND
On August 18, 2004, the Department issued a Final Determination to Respondent, in
which it concluded that Respondent’s restaurant minibottle license and on-premises beer and
wine permit should be revoked for Respondent’s failure to operate as a restaurant bona fide
engaged primarily and substantially in the preparation and serving of meals. By a letter dated
August 27, 2004, addressed to the Clerk of the South Carolina Administrative Law Court,
Respondent requested a contested case hearing to challenge the Department’s Final
Determination. However, Respondent did not provide a copy of the request to the Department or
otherwise file a request for a contested case with the Department within thirty days of the
issuance of the Department’s determination. In fact, the Department did not learn that
Respondent had filed a request for a contested case hearing regarding the August 18, 2004 Final
Determination until a telephone conversation between the Department and counsel for
Respondent on November 1, 2004.
DISCUSSION
The South Carolina Administrative Law Court is authorized to preside over contested
cases concerning the Department’s enforcement decisions regarding alcoholic beverage licenses
and permits. See S.C. Code Ann. §§ 1-23-600(B) (Supp. 2004), 12-60-1320 (Supp. 2004), and
61-2-260 (Supp. 2004). However, for this tribunal to hear such a contested case, its jurisdiction
must be properly invoked through a timely request for a contested case. See Botany Bay Marina,
Inc. v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988) (holding that a party’s failure to file an
appeal of a zoning decision within the statutory time period divested the board of adjustment of
jurisdiction to hear the appeal), overruled on other grounds by Woodard v. Westvaco Corp., 319
S.C. 240, 460 S.E.2d 392 (1995); Burnett v. S.C. State Highway Dep’t, 252 S.C. 568, 167 S.E.2d
571 (1969) (holding that a landowner’s failure to timely appeal a condemnation decision by the
Highway Department deprived the reviewing court of jurisdiction to hear the appeal); see also,
e.g., Schaible Oil Co. v. N.J. Dep’t of Envtl. Prot., 586 A.2d 853, 855-56 (N.J. Super. Ct. App.
Div. 1991) (“The statutory time limit for requesting an adjudicatory hearing is mandatory and
jurisdictional[;] . . . . enlargement of statutory time for appeal to a state administrative agency
lies solely within the power of the Legislature . . . and not with the agency or the courts.”); Lewis
v. N.C. Dep’t of Human Res., 375 S.E.2d 712, 714 (N.C. Ct. App. 1989) (“The right to appeal to
an administrative agency is granted by statute, and compliance with statutory provisions is
necessary to sustain the appeal.”). In the instant matter, Respondent failed to timely file its
request for a contested case to challenge the Department’s final determination and, therefore,
failed to properly invoke this tribunal’s jurisdiction.
ALC Rule 11 sets forth the requirements for filing a contested case before this Court, and
provides, in pertinent part:
In all contested cases except county tax matters and cases arising under the Setoff
Debt Collection Act, the request for a contested case hearing shall be filed with
the affected agency within thirty (30) days after actual or constructive notice of
the agency decision unless otherwise provided by statute. . . . At the same time, a
copy of the request for a contested case hearing, accompanied by the filing fee as
provided in Rule 71, shall also be filed with the clerk of the Court.
ALC Rule 11 (emphasis added). Further, Section 12-60-1320, which provides for contested case
hearings on licensing actions taken by the Department, requires that the request for such a
contested case be filed “within thirty days after the date the [D]epartment’s determination was
sent by first class mail or delivered to the person.” S.C. Code Ann. § 12-60-1320 (Supp. 2004).
However, in all other respects, this section defers to the ALC Rules for requesting contested
cases. Id. (“Requests for a hearing before the Administrative Law [Court] must be made in
accordance with its rules.”). Here, Respondent concedes that it did not file a request for a
contested case with the Department—the “affected agency” in this matter—within thirty days of
the issuance of the Department’s August 18, 2004 Final Determination. Therefore, while
Respondent did partially comply with Rule 11 by timely filing a request for a contested case
with the clerk of this Court, it did not cross the primary jurisdictional threshold of timely filing a
request for a contested case with the Department. Accordingly, Respondent failed to properly
invoke this Court’s jurisdiction and this matter must be dismissed.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that the above-captioned case is DISMISSED with
prejudice.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 21, 2005
Columbia, South Carolina |