ORDERS:
FINAL ORDER AND DECISION
This
matter is before the Administrative Law Court (“ALC”) pursuant to S.C. Code
Ann. §§ 1-23-310 et seq. (2005), 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, Ramzi R. Ahmed,
d/b/a Mo Mart, applied for a seven-day permit to sell beer and wine for off-premises
consumption pursuant to §§ 61-4-500 et seq. and § 61-6-2010 (Supp. 2007)
for the location at 5405 Dorchester Road in North Charleston, South Carolina 29418.
Carolyn J. Trammell (“Protestant”) filed a written protest to Petitioner’s application. Respondent
South Carolina Department of Revenue (“Department”) denied the application
pursuant to § 61-4-525 due to the receipt of the Protestant’s valid public
protest. In the Department Determination, the Department stated that it would
have granted the permit but for the receipt of the public protest.
After
notice to the parties and the Protestant, the court held a hearing on Thursday,
March 13, 2008, at the ALC in Columbia, South Carolina. The Petitioner was
present at the hearing as was the Department. The Protestant did not appear at
the hearing and did not notify the court that she would not be appearing.
After
waiting approximately twenty minutes for the Protestant to appear, the court,
acting in an abundance of caution, directed counsel for the Department to
contact the Protestant to ascertain whether she had received the Notice of
Hearing, as it appeared from the file that the court may have mailed the
Protestant’s notice to the wrong street number. The court then continued the
hearing.
By
letter dated March 14, 2008, the Department confirmed to the court and the
Petitioner that the Protestant had, in fact, received the Notice of Hearing. Based
on this representation, the court deems the
protest invalid for failure to appear pursuant to S.C. Code Ann. § 61-4-525(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.”). In addition, ALC Rule 23 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. Any non‑defaulting party may move for an order
dismissing the case or terminating it adversely to the defaulting party.
Because
the Protestant did not appear for the hearing and has not otherwise contacted
this tribunal regarding this hearing as of the issuance of this Order, it is
hereby
ORDERED that this matter is remanded to the Department of Revenue with instructions to
continue processing the Petitioner’s application and to issue the requested seven-day,
off-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-525(C) and §
61-4-540 (Supp. 2007).
IT
IS SO ORDERED.
______________________________
PAIGE J. GOSSETT
Administrative Law Judge
March 18, 2008
Columbia, South Carolina
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