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. (as amended 2008 Act No. 334), S.C. Code Ann. § 1-23-600(A) (as amended 2008
Act No. 334), and S.C. Code Ann. § 61-2-260 (Supp. 2007) for a contested case
hearing. The Petitioner, Hanna-Kolarik, LLC, d/b/a Whiskey Creek
(“Petitioner”), applied for a retail liquor store license pursuant to § 61-6-100 et seq. for the location at 1605 Central Avenue, Suite F, Summerville, SC 29483. John O’Shaughnessy (“Protestant”) filed a written protest to Petitioner’s application. Respondent
South Carolina Department of Revenue (“Department”) denied the application
pursuant to § 61-6-185 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 Wednesday,
November 19, 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 he would not be appearing.
After
waiting approximately fifteen (15) minutes for the Protestant to appear, the Court
opened the record in this matter. Based on the Protestant’s failure to appear
at the hearing, the Court deems the protest
invalid for failure to appear pursuant to S.C. Code Ann. § 61-6-185. See § 61-6-185(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 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 Court regarding this hearing as of the issuance of this Order,
IT
IS HEREBY ORDERED that this matter is REMANDED to the Department with
instructions to continue processing the Petitioner’s application and to issue
the requested retail liquor store license pursuant to S.C. Code Ann. § 61-6-100
(Supp. 2007).
AND
IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Judge
November 19, 2008
Columbia, South Carolina
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