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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