ORDERS:
ORDER
This matter is before the South Carolina Administrative
Law Court (“ALC” or “Court”) pursuant to a Petition for Writ of Mandamus filed
by The Pantry, Inc., (“Petitioner”) on May 8, 2007, seeking to have this Court
compel the South Carolina Department of Revenue (“Department”) to issue an
off-premises beer and wine permit (“permit”) to Petitioner. Pursuant to notice
to the parties, a hearing was held before the undersigned Judge at 2:30 p.m. on
Wednesday, May 9, 2007. Based upon the Record of the hearing, I conclude that
the Petition for Writ of Mandamus must be denied.
STATEMENT OF
THE CASE
On or about January 11, 2007, Petitioner submitted an
application to the Department for an off-premises beer and wine permit for its
location at 16273 Ace Basin Parkway, Round O, South Carolina. As part of the
application process, Petitioner was required to publish notice of its
application in a newspaper most likely to give notice to interested citizens of
the county, city, or community in which the applicant proposes to engage in
business for three consecutive weeks. See S.C. Code Ann. § 61-4-520(7)(a)(Supp.
2006). Petitioner originally requested that the notice run in the Community
Times Dispatch newspaper in Colleton County. However, that notice was never
published by the newspaper and, therefore, the Department was unable to approve
Petitioner’s application. Thereafter, Petitioner published notice of its
application in the Post and Courier newspaper on April 28, 2007, May 5,
2007, and May 7, 2007. The notice set forth that any person wishing to file a
protest to the application must do so no later than May 14, 2007.
Petitioner argues that notice of the application has now
appeared in the newspaper for three consecutive weeks, and that the Department,
finding that Petitioner meets all other statutory requirements for the issuance
of a beer and wine permit for off-premises consumption, must immediately issue
the permit to Petitioner. The Department, however, argues that it cannot issue
the permit as the applicable time to file a protest, set forth in the notice as
May 14, 2007, has not expired. Petitioner then filed this Writ of Mandamus
seeking to have the Court compel the Department to issue the permit to
Petitioner.
During the pendency of the application process, the
Department issued a 120-day temporary permit to Petitioner. However, that
temporary permit has since expired. Furthermore, as of the date of the hearing
on this Petition, no protests to the application had been filed with the
Department.
DISCUSSION
The
Administrative Law Court has the jurisdiction to hear petitions for writs of mandamus, pursuant to S.C. Code Ann. § 1-23-630 (Supp. 2006), as a writ of mandamus is a “remedial writ.” See also ALC Rule 16. As it is an
extraordinary writ, the burden upon a party seeking a writ of mandamus is a heavy one. In
order to obtain a writ of mandamus, a party must show: (1) a duty of
the respondent to act; (2) the ministerial nature of the act; (3) the
petitioner’s specific legal right for which discharge of the duty is necessary;
and (4) a lack of any other legal remedy. Riverwoods, LLC v. County of Charleston,
349 S.C. 378, 563 S.E.2d 651 (2002). Here, Petitioner has failed to show that
it is entitled to a writ of mandamus.
The primary purpose of a writ of mandamus is to enforce an established right and a corresponding
imperative duty created or imposed by law. When the legal right is doubtful, or
the performance of duty rests in discretion, or when there is another adequate
remedy, a writ of mandamus cannot rightfully be issued. City of Rock Hill v.
Thompson, 349 S.C. 197, 200, 563 S.E.2d 101, 102 (2002).
Initially, Petitioner has
failed to establish a legal right to the permit. Permits and licenses issued by
this state for the sale of liquor, beer and wine are not property rights.
Rather, they are privileges granted in the exercise of the State’s police power
to be used and enjoyed only so long as the holder complies with the
restrictions and conditions governing them. See Feldman v. S.C. Tax
Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Therefore, Petitioner has no
legal right to the beer and wine permit.
Furthermore, pursuant to S.C.
Code Ann. § 61-4-520, the Department may not issue a beer and wine
permit unless the applicant has complied with all of the statutory requirements
of that section. Additionally, Section 61-4-540 gives the Department the
discretion to determine if an applicant has met all statutory requirements. The
Department is also constrained from issuing a permit unless the time set forthfor filing a protest
in the published notice of application has passed. See S.C. Code Ann.
Regs. 7-201. Further, if a valid protest is received, the Department may not
issue the permit, but must forward the file to the Administrative Law Court.
S.C. Code Ann. § 61-4-525(B). Accordingly, there is no duty for the Department
to issue the permit in this matter, as the time for protests to be filed has
not expired as of the date of this hearing, and therefore not all of the
requirements of Section 61-4-520 have been met. Further, it is in the
Department’s discretion to determine whether the applicant has fulfilled all
requisite statutory requirements.
Finally, Petitioner has also failed to show that it has no other
legal remedy. If a valid protest to the application is timely filed, Petitioner
may seek a contested case hearing before this Court. See S.C.
Code Ann. §§ 1-23-600, 61-2-260, 61-4-525.
Although
the Court is mindful of the potential hardship Petitioner may endure, it is
constrained by the law. Apodictically, Petitioner has failed to establish its
entitlement to the extraordinary writ it seeks. Further, neither the
Court nor the Department has the authority to extend Petitioner’s temporary
permit past its expiration. S.C. Code Ann. § 61-4-210. Accordingly,
IT
IS HEREBY ORDERED that Petitioner’s Petition for Writ of Mandamus is
denied.
AND
IT IS SO ORDERED.
_______________________________
Marvin
F. Kittrell
Chief
Administrative Law Judge
May 11, 2007
Columbia, South Carolina
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