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

CAPTION:
Sobota, LLC, d/b/a/ Deckerz vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Sobota, LLC, d/b/a/ Deckerz

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0033-CC

APPEARANCES:
n/a
 

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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