ORDERS:
ORDER
This
matter is before the court pursuant to the Petitioner’s protest to LaVonne
Elmore’s application for an off-premises beer and wine permit. The South
Carolina Department of Revenue (“Department”) determined that the protest of
the Allendale Police Department (“Police Department”) to Ms. Elmore’s
application for a beer and wine permit was untimely. The Police Department then
requested a contested case hearing before the Administrative Law Court. The
hearing was held on Monday, September 29, 2008, before the Honorable Paige J. Gossett, Administrative Law Judge, with all parties present and represented as
indicated above. At the hearing, the Petitioner stipulated to the fact that
the protest was untimely, but asked the court to remand the case to the
Department for the Department to consider the fact that the applicant had not
indicated on her application that the location was in a residential area of
Allendale. The Petitioner felt that this omission was a misstatement or
concealment of fact which gave grounds for the Department to consider the
protest, even though it was untimely, citing Jacoby v. S.C. State Board of
Naturopathic Examiners, 219 S.C. 66, 64 S.E.2d 138 (1951). The Petitioner,
through its counsel, conceded that there was not a specific question on the
permit application that dealt with the residential or commercial nature of the
proposed location. The Department contended that the untimely protest was
invalid under S.C. Code Ann. § 61-4-525 (Supp. 2007) and 23 S.C. Code Ann.
Regs. 7-201 (Supp. 2007). The parties also agreed to admit the Department’s
file into evidence without objection.
Based
on the arguments of counsel at the hearing, along with the trial briefs filed
by the Petitioner and the Department and the stipulations and evidence
submitted, the court finds that the untimely protest by the Police Department
was properly excluded by the Department. Since the protest was untimely, it
was invalid. See John D. Geathers & Justin R. Werner, The
Regulation of Alcoholic Beverages in South Carolina 176 (S.C. Bar 2007). Because
the protest was invalid, it is not properly before the court. Furthermore, the
Police Department’s primary complaint appears to be that the area of the location
is zoned residential. Although the court understands the Police Department’s
concerns, the proper forum to address those concerns is through the local
zoning board, not the Administrative Law Court. See McKeown and
Quick Food, Inc. v. Charleston County Board of Zoning Appeal, 347 S.C. 203,
553 S.E.2d 484 (Ct. App. 2001). This court is without authority to grant
relief based on the Petitioner’s contention that the location is engaging in a
business contrary to municipal zoning. Accordingly, the relief requested by
the Petitioner is denied.
IT
IS SO ORDERED.
______________________________
PAIGE
J. GOSSETT
Administrative
Law Judge
October 2, 2008
Columbia, South Carolina
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