South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Club Rio, Inc., d/b/a Club Level vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Club Rio, Inc., d/b/a Club Level

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0530-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

This matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to a request for a contested case hearing regarding the denial of Petitioner Club Rio, Inc., d/b/a Club Level’s (“Petitioner”) renewal application for an on-premises beer and wine permit and liquor by the drink license for its location at 1800 Blanding Street, Columbia, SC 29201. Respondent South Carolina Department of Revenue (“Department”) denied Petitioner’s application due to public protests submitted pursuant to S.C. Code Ann. §§ 61-4-525 and 61-6-1825 (Supp. 2007). On February 2, 2009, Respondent filed a Motion to Dismiss on the ground that Petitioner failed to file the Request for a Contested Case Hearing with the ALC within thirty (30) days of its notice of the Department’s final decision in this matter.

On February 17, 2009, Petitioner filed a response to the Department’s motion with the Court. In its response, Petitioner concedes that the Request for a Contested Case Hearing was not timely filed; however, it contends that, pursuant to South Carolina Department of Revenue v. Place To Go Management, Docket No. 06-ALJ-17-0639-CC (J. Anderson, Oct. 16, 2006), the Court may excuse a party’s failure to file a timely response based upon good cause shown. However, in that case, the Respondent failed to timely respond to the Department’s Notice of Intent to Revoke the parties’ beer and wine permit. In fact, the final agency determination had not been issued in that case, and there was no issue of properly invoking the jurisdiction of the Court.

S.C. Code Ann. § 12-60-1320 (Supp. 2007), pertaining to licenses administered by the Department, provides for the following:

Upon exhaustion of his prehearing remedy, a person may seek relief from the department’s determination by requesting a contested case hearing before the Administrative Law Judge Division. This request must be made within thirty days after the date the department’s determination was sent by first class mail or delivered to the person. Requests for a hearing before the Administrative Law Judge Division must be made in accordance with its rules.

(emphasis added). Furthermore, ALC Rule 11, entitled “Request for a Contested Case Hearing,” provides for the following:

C. Time for Filing. Unless otherwise provided by statute, a request must be filed and served within thirty (30) days after actual or constructive notice of the agency’s determination.

ALC Rule 11(C) (emphasis added). It is also a well-established rule of practice that a court does not have the authority to extend the time for taking an appeal from a decision of an administrative agency. See, e.g., Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004); Sadico of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 59, 530 S.E.2d 383, 384 (2000); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S.C. State Highway Dep’t, 252 S.C. 568, 167 S.E.2d 571 (1969).

In this matter, the Department issued its Department Determination, i.e. the final agency decision, on September 24, 2008. However, Petitioner did not file the Request for a Contested Case Hearing with the Court until November 26, 2008, approximately sixty-three (63) days later. Petitioner was given notice of the Department’s decision as well as the opportunity to seek relief from that decision before becoming bound by the terms of such a decision. See § 12-60-1320; see also S.C. Const. art. I, § 22 (“No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; . . . and he shall have in all such instances the right to judicial review.”). Id. By its own inaction, Petitioner simply failed to take advantage of his right to judicial review in this matter. Therefore, this Court finds that Petitioner did not file its request for a contested case hearing in a timely fashion with the Court, and thus failed to properly invoke the jurisdiction of the ALC. While this Court recognizes the harsh result of this decision, it is constrained by the rules and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994). Accordingly, it is hereby

ORDERED that the hearing of this matter, currently scheduled at 10:00 a.m. on Tuesday, March 31, 2009, is CANCELED; it is further

ORDERED that the Department’s Motion to Dismiss is GRANTED. Petitioner’s renewal application for an on-premises beer and wine permit and liquor by the drink license for the location at 1800 Blanding Street is DENIED based upon Petitioner’s failure to timely request a hearing before the ALC; and it is further

ORDERED that this matter is DISMISSED with prejudice.

AND IT IS SO ORDERED.

_____________________________

Marvin F. Kittrell

Chief Judge

February 18, 2009

Columbia, South Carolina


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