ORDERS:
ORDER REMANDING CASE
STATEMENT
OF THE CASE
This
is a contested case involving the South Carolina Department of Revenue’s
(Department) denial of the Respondent’s request to set aside its decision suspending
the Respondent’s beer and wine permit. A hearing was held before me on July
24, 2008, at the offices of the Administrative Law Court.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
Strickland’s One Stop,
Inc. (Strickland’s) is a convenience store located at 12441 Old Highway 6,
Orangeburg, South Carolina. Strickland’s currently holds an off-premises beer
and wine permit. On September 13, 2007, the Department mailed a Notice of
Intent to Suspend Strickland’s beer and wine permit. Strickland’s receives its
mail in a mailbox that it shares with Napa Auto Parts. Strickland’s has two
principles, Bill McElveen and Melinda Strickland. Mr. McElveen is collects the
mail for both businesses 90% of the time while Ms. Strickland collects the mail
all other times. Accordingly, only Mr. McElveen or Ms. Strickland ever collect
the mail, no employee of either location ever collects the mail.
When
the Department confiscated the machines at this location, a SLED agent informed
Mr. McElveen that a disciplinary action against Strickland’s would be
instituted against their beer and wine permit as a res of the presence of the
alleged illegal gambling devices. Accordingly, both Mr. McElveen and Ms.
Strickland were specifically watching the mail for a letter from the
Department. The Notice of Intent to Suspend was subsequently sent by the
Department to the address in its file, 12441 Old Highway 6, Eutawville, South
Carolina, 29048. That notice gave Strickland’s ninety (90) days in which to
file a protest in writing. However, neither Mr. McElveen and Ms. Strickland
ever received the notice. The first correspondence they received from the
Department was the Department Determination, suspending Strickland’s permit for
ninety (90) days as a result of Strickland’s failure to respond to the Notice
of Intent to Suspend. After receiving the Department Determination to suspend
Strickland’s permit, Mr. McElveen promptly contacted the Department and informed
them that he never received the original Notice of Intent to Suspend.
Thereafter, Strickland’s filed this request for a contested case hearing.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. Respondent
asserts that its failure to timely file a letter of protest is justified under
the facts of this case. Therefore, Respondent argues that it should be
permitted to contest the Department’s suspension of its permit. To the
contrary, the Department contends that Respondent’s failed to appeal within the
ninety-day (90) statutory period permitted and thus has no further right to
appeal the revocation of its permit.
2. S.C.
Code Ann. § 1-23-600 (Supp. 2007) grants jurisdiction to the Administrative Law
Court to hear contested cases under the APA. Additionally, S.C. Code Ann. §
61-2-260 (Supp. 2007) grants the ALC the responsibilities to determine contested
matters governing alcoholic beverages, beer and wine.
S.C. Code Ann. § 12-60-1330
(A) (Supp. 2007) also provides that a party must exhaust his prehearing remedy
before he may seek a determination by an ALJ. More specifically, S.C. Code
Ann. § 12-60-1330 (A)(3) (Supp. 2007) sets forth that:
If a person fails to file a protest with the department
within ninety days of the date of the denial or proposed suspension,
cancellation, or revocation, the person is in default, and the department shall
deny, suspend, cancel, or revoke the license or permit appropriate. The denial,
suspension, cancellation, or revocation of the license or permit may be lifted
by the administrative law court for good cause shown, and
remand the matter to the department.
(emphasis
added). In this case, Respondent alleges that they never received the Notice
of Intent to Suspend which explains their failure to timely file a Letter of
Protest.
“Good cause” is not defined in Chapter 60 of Title 12. In Black's
Law Dictionary it is defined, in part as, “[a] legally sufficient reason.” Black's
Law Dictionary 213 (7th ed. 1990). Furthermore, in the context
of whether a party is entitled to relief from an entry of default under Rule
55©, SCRCP, the courts have considered the promptness with which relief is
sought, the existence of a meritorious defense, and the prejudice to other
parties as relevant factors in determining whether “good cause” has been shown. See, e.g., New Hampshire Ins. Co. v. The Bey Corp., 312
S.C. 47, 435 S.E.2d 377 (Ct. App. 1993). Here, the Respondent failed to timely
file a letter of protest but nevertheless contacted the Department as soon as
they were made aware of the suspension. They also promptly sought relief from
the Department’s decision to sustain the suspension once it was made. Furthermore,
there appears to be little, if any, prejudice to the Department. Accordingly,
I find Respondent established a good cause warranting the remand of this case
to the Department.
ORDER
Based upon the
foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that this case is REMANDED to the Department to complete the exhaustion of prehearing
remedies.
AND IT IS SO
ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
August 4, 2008
Columbia, South Carolina
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