ORDERS:
ORDER OF DISMISSAL
This
matter is before the Administrative Law Court (“Court”) pursuant to a Petition
filed on July 28, 2008, by Petitioner South Carolina Department of Labor,
Licensing and Regulation, State Board of Massage/Bodywork Therapy
(“Department”). In its Petition, the Department alleges that Respondent Bruce
Keaton Alexander (“Respondent”) is in violation of the South Carolina
Massage/Bodywork Practice Act, S.C. Code Ann. § 40-30-10 et seq. (Supp. 2007). On August 8, 2008, the Court issued an Order Requiring a
Response From Respondent and Notice of Hearing. In the Order, Respondent was
required to “file a response to the Petition no later than September 8, 2008.”
Respondent did not file a response to the Petition with the Court.
Pursuant
to the Notice of Hearing, a hearing on the merits of this matter was scheduled
to begin before the Court at 10:00 a.m. on Monday, September 29, 2008. Both
parties appeared at the hearing. At the beginning of the hearing, counsel for
the Department made a Motion for Continuance and a Motion for Default. The
Court denied both motions. Pursuant to the Notice of Hearing a motion for
continuance must be requested with the Court “no later than 24 hours prior to
the scheduled hearing date.” However, the Court did not receive notice prior
to the hearing that the Department requested a continuance. The Department
based its Motion for Default on the ground that Respondent had failed to file a
response as required by the Court’s August 8, 2008 Order. Despite Respondent
failing to file a response, the Court denied the Department’s motion as
Respondent appeared at the hearing and informed the Court that he was ready to
proceed in this matter.
However,
despite being informed in writing of the scheduled date and time to appear at
the hearing, counsel for the Department appeared at the hearing but was unprepared
to present its case. Specifically, counsel did not bring any witnesses to
testify at the hearing; thus, the Department did not present any evidence to
support its petition in this matter. ALC Rule 23 provides that:
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.
ALC Rule 23(A)
(emphasis added). Because the Department appeared at the hearing unprepared to
present its case and did not meet its burden of proof in this matter,
IT
IS HEREBY ORDERED that this case is DISMISSED with prejudice.
AND
IT IS SO ORDERED.
__________________________________
September 30, 2008 Marvin
F. Kittrell
Columbia, South Carolina Chief
Judge
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