South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

Sandbar, LLC vs. DOR

South Carolina Department of Revenue

Sandbar, LLC
300 Tarpon Boulevard, Fripp Island, South Carolina

South Carolina Department of Revenue

Dana R. Krajack, Esquire
For Respondent



The above-captioned matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003), S.C. Code Ann. § 1-23-600(B) (Supp. 2003), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. However, because Petitioner failed to appear at the scheduled hearing of this matter, this tribunal finds Petitioner to be in default and hereby dismisses this case without prejudice.


On July 14, 2003, Petitioner Sandbar, LLC, submitted an application to Respondent South Carolina Department of Revenue (Department) for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 300 Tarpon Boulevard, Fripp Island, South Carolina. On February 10, 2004, the Department issued a final agency determination denying Petitioner’s application on the ground that Petitioner’s business did not satisfy the requirements a restaurant must meet in order to hold a minibottle license. By a letter dated February 17, 2004, Petitioner requested a contested case hearing to challenge the Department’s denial of its application. The Department’s agency transmittal regarding this request was filed on March 5, 2004, and, by a Notice of Assignment dated March 8, 2004, this matter was assigned to the undersigned for hearing.

By an Order and Notice of Hearing filed on March 24, 2004, this tribunal scheduled a contested case hearing in this matter for Tuesday, June 22, 2004. By a facsimile dated Friday, June 18, 2004, D. Cabell Gilley, attorney for Petitioner, requested a sixty-day continuance of the hearing to allow the managing member of Petitioner Sandbar, LLC, further time to recover from throat surgery before giving testimony. For this good cause shown, this tribunal granted the continuance by an Order of Continuance and Notice of Rescheduled Hearing dated June 21, 2004. Pursuant to that Order, the hearing of this case was rescheduled for 10:00 a.m. on Tuesday, September 28, 2004, over three months after the originally scheduled hearing date and some thirty-eight days longer than the continuance requested by Petitioner.

By a facsimile sent at 4:09 p.m. on Monday, September 27, 2004, Petitioner’s counsel requested another continuance of the hearing scheduled in this matter. In the request, counsel merely stated that “I am writing to request a further forty-five (45) day delay in the date for the hearing of this matter from September 28, 2004” and noted that “[t]here is a strong likelihood that this license application may be withdrawn.” Other than these statements, counsel did not provide any further basis for his motion for a continuance or state any specific grounds to support his request for a continuance; the request did not reference any exigent circumstances, conflicts with other courts, or any other good cause for a continuance. And, other than the facsimile, counsel did not make any other efforts to communicate with this tribunal regarding his request for a continuance; counsel did not attempt to discover whether his motion had been received by this tribunal or whether that motion had been granted by this tribunal.

After contacting counsel for the Department and attempting to contact counsel for Petitioner on the morning of September 28, 2004, to inform the parties that Petitioner’s continuance had not been granted, this tribunal proceeded with the contested case hearing in this matter as scheduled in its June 21, 2004 Order of Continuance and Notice of Rescheduled Hearing. Counsel for the Department appeared at the hearing. Neither Petitioner’s counsel nor any other representative of Petitioner appeared at the hearing.


Under the Rules of Procedure for the Administrative Law Court (ALC),

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.

ALC Rule 23 (emphasis added). In the case at hand, while Petitioner made an eleventh-hour request for a continuance, that request was not granted by this tribunal. Accordingly, Petitioner’s failure to appear at the hearing of this matter was without the proper consent of this tribunal and constituted a default. Therefore, as a result of this default, Petitioner’s application is deemed abandoned or withdrawn and this case is dismissed pursuant to ALC Rule 23.

By virtue of its request for a contested case, Petitioner had an obligation to advance its position. Here, Petitioner received proper notice of the hearing in this case, see Order and Notice of Hearing of Mar. 24, 2004, Footnote and Order of Continuance and Notice of Rescheduled Hearing of June 21, 2004, and was not excused from appearing at the hearing. Nevertheless, Petitioner failed to appear at the hearing of this matter. Accordingly, Petitioner is in default and this case is dismissed. “There is a limit beyond which the court should not allow a litigant to consume the time of the court . . . .” Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E.2d 16, 19 (Ct. App. 1990).


IT IS HEREBY ORDERED that the above-captioned case is DISMISSED. However, it should be noted that, as this dismissal is without prejudice, nothing in this Order precludes Petitioner from filing a new application for the beer and wine permit and minibottle license it seeks.




Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

September 28, 2004

Columbia, South Carolina

Brown Bldg.






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