ORDERS:
ORDER OF DISMISSAL
The above-captioned case comes before this tribunal pursuant to 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. Petitioner Garrie L. Vass challenges the decision of Respondent South Carolina
Department of Health and Environmental Control (Department) to deny his application for a septic
tank permit for a property in Berkeley County, which is identified as TMS #208-00-01-206. By an
Order and Notice of Hearing issued on April 21, 2004, this tribunal scheduled a contested case
hearing in this matter for Thursday, June 24, 2004, at 10:00 a.m. Subsequently, upon a motion for
a continuance filed by counsel for Respondent because of a scheduling conflict with another court,
the hearing of this case was rescheduled for Wednesday, September 29, 2004, at 10:00 a.m., by an
Order of Continuance and Notice of Rescheduled Hearing dated June 21, 2004. These hearing
notices were timely and properly served upon both parties.
Despite this notice, Petitioner failed to appear at the scheduled hearing of this matter on
September 29, 2004. Therefore, Petitioner’s application for a septic tank permit is deemed
withdrawn by default and this case is dismissed pursuant to ALC Rule 23. This rule 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.
ALC Rule 23 (emphasis added). In the case at hand, Petitioner failed to appear at the hearing of this
case without seeking, or receiving, consent from this tribunal, and is, therefore, in default.
By virtue of his request for a contested case, Petitioner had an obligation to advance his
position. Here, Petitioner received proper notice of the hearing in this case, see Order and Notice
of Hearing of Apr. 21, 2004,
and Order of Continuance and Notice of Rescheduled Hearing of June
21, 2004, and did not request a continuance of this case or otherwise communicate with this tribunal
regarding the hearing of this matter. Nevertheless, Petitioner failed to appear at the scheduled
hearing of this case. Accordingly, Petitioner is deemed to be 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 with prejudice.
AND IT IS SO ORDERED.
________________________________
JOHN D. GEATHERS
Administrative Law Judge
September 29, 2004
Columbia, South Carolina |
