SC Administrative Law Court Decisions

This matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to S.C. Code Ann. §§ 1-23-310 et seq., S.C. Code Ann. § 1-23-600(A) (Supp. 2008), and S.C. Code Ann. § 61-2-260 (Supp. 2007) for a contested case hearing. The Petitioner, Schooners Bar and Grill, LLC (“Petitioner”), applied for an on-premises beer and wine permit and restaurant liquor by the drink license for the location at 6226 Bush River Road, Suite C, Columbia, SC 29212. Frederick J. Driscoll (“Protestant”) filed a written protest to Petitioner’s application. Respondent South Carolina Department of Revenue (“Department”) denied the application pursuant to §§ 61-4-525 and 61-6-1825 due to the receipt of the Protestant’s valid public protest. The Department also denied Petitioner’s application based upon Petitioner’s failure to submit an Affidavit of Publication and failure to pay the required application fee.

After notice to the parties and the Protestant, the Court held a hearing on Monday, February 9, 2009, 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.

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. §§ 61-4-525 and 61-6-1825. 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.”); § 61-6-1825(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.

Also, during the hearing the Department informed the Court that Petitioner had resolved all other issues contained within the Department’s final agency decision. Thus, the Department requested that it be allowed to continue processing Petitioner’s application subject to Petitioner passing a final inspection of the proposed location.

ORDER

Accordingly, because the Protestant did not appear for the hearing and all other issues between the parties have been resolved, 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 on-premises beer and wine permit and restaurant liquor by the drink license pursuant to S.C. Code Ann. §§ 61-4-520 and 61-6-1600 et seq. (Supp. 2007) contingent upon:

1.      Petitioner providing the Department with a Grade “A” certificate from the South Carolina Department of Health and Environmental Control after a final inspection that confirms that the location complies with the restaurant provisions of Title 61 and the regulations thereunder; and

2.      Petitioner complying with all other administrative requirements of the Department.

AND IT IS SO ORDERED.

______________________________

Marvin F. Kittrell

Chief Judge

February 10, 2009

Columbia, South Carolina