ORDERS:
ORDER OF DISMISSAL
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.
PROCEDURAL BACKGROUND
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.
DEFAULT
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,
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).
ORDER
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.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 28, 2004
Columbia, South Carolina |