ORDERS:
FINAL ORDER AND DECISION
This matter is before the Administrative Law Court (“ALC” or
“Court”) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 and Supp.
2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260
(Supp. 2007) for a contested case hearing. The Petitioner, Sobota, LLC, d/b/a
Deckerz, applied for an on-premises beer and wine permit and restaurant liquor
by the drink license pursuant to §§ 61-4-500 et seq. and §§ 61-6-1600 et
seq. for the location at 90 Hillside Drive North in North Myrtle Beach,
South Carolina 29582 (“location”). Kenneth D. Phillips (“Mr. Phillips”) and
Robert C. Wittko, Jr. (“Mr. Wittko”) filed written protests to Petitioner’s
application. Respondent South Carolina Department of Revenue (“Department”)
denied the application based upon these timely filed public protests and
Petitioner’s alleged failure to provide evidence that it is operating as a
restaurant that is engaged primarily and substantially in the preparation and
service of meals.
Prior to the hearing in
this matter, the Department informed the Court that the location is now in
compliance with the statutory requirements for a restaurant, and as such, the
Department is withdrawing that ground for denial of Petitioner’s application.
The Department’s sole position in this matter is that it would have granted the
permit but for the receipt of the public protests.
On February 14, 2008, Mr.
Wittko informed the Court that he is withdrawing his appeal in this matter. In
addition, Mr. Phillips informed the Court that he will be unable to attend the hearing
scheduled for Friday, February 15, 2008 due to “personal reasons” and requested
the Court to reschedule. A protestant is not considered a party of record in a
contested case. Byers v. S.C. Alcoholic Beverage Control Commission, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). To have full participation rights in
this matter, a Protestant must request to be admitted as a party in these
proceedings. See Sabella v. S.C. Alcoholic Beverage Control Commission,
289, S.C. 400, 346 S.E.2d 530. Mr. Phillips has not made such a request.
Because Mr. Phillips is a Protestant in this matter, his rights – including a
request for a continuance in this matter – are limited. Accordingly, Mr.
Phillips request for a continuance in this matter is denied.
If a Protestant abandons his
protest prior to the hearing, the protest will be deemed invalid pursuant to S.C. Code Ann. § 61-4-525(C) and § 61-6-1825(C). See §
61-4-525(C) (“If the protestant, during the investigation
expresses no desire to attend a contested hearing and offer testimony, the
protest is considered invalid, and the department shall continue to process the
application and shall issue the permit if all other statutory requirements are
met.”); § 61-6-1825(C) (“If the protestant during the investigation expresses
no desire to attend a contested hearing and offer testimony, the protest is
deemed invalid, and the department shall continue to process the application
and shall issue the license if all other statutory requirements are met.”); see also, e.g., ALC Rule 23 (A) (“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. . . .”). Therefore, because Mr.
Wittko has withdrawn his protest, Mr. Phillips has abandoned his protest, and
the Petitioner has met all statutory requirements for an on-premises beer and
wine permit and restaurant liquor by the drink license for the location at 90
Hillside Drive North in North Myrtle Beach, South Carolina,
IT IS HEREBY ORDERED that this matter is dismissed with prejudice; and,
IT IS FURTHER ORDERED that
the Department of Revenue shall issue to the
Petitioner an on-premises beer and wine permit and restaurant liquor by
the drink license for the location at 90 Hillside Drive North in North Myrtle
Beach, South Carolina 29582.
AND IT IS SO ORDERED.
__________________________________
February 15, 2008 Marvin
F. Kittrell
Columbia, South Carolina Chief
Administrative Law Judge
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