ORDERS:
ORDER GRANTING PETITIONER’S MOTION TO DISMISS AND TO AWARD COSTS
This matter is before the Administrative Law Court (“ALC” or “Court”)
pursuant to a request for a contested case hearing regarding the sanctions
imposed upon Respondent Canton Restaurant Management Group of Columbia, d/b/a
China Garden Restaurant (“Respondent”) by Petitioner South Carolina Department
of Revenue (“Department”) for an alleged violation of 23 S.C. Code Ann. Regs.
7-200.4. In its October 23, 2008 Department Determination, the Department concluded
that Respondent violated S.C. Code Ann. Regs. 7-200.4 by its employee knowingly
allowing an individual under the age of 21 to purchase beer on the licensed
premises on February 7, 2008. Because the Department considered the February
7, 2008 violation to be Respondent’s second alcohol violation within a one year
period, the Department assessed a one thousand dollar ($1,000) fine to Respondent.
On
January 27, 2009, the Court issued an Order Requiring Respondent to Be
Represented by an Attorney based upon ALC Rule 8(A) and Renaissance
Enterprises, Inc. v. Summit Teleservices, Inc., 334 S.C. 649, 515 S.E.2d
257 (1999). In this Order, the Court required that Respondent be represented
by an attorney admitted to practice in South Carolina, either permanently or pro hac vice, in this matter and further required that Respondent’s
attorney file a Notice of Appearance with the Court within twenty (20) days
from the date of the Order. To date, Respondent has not complied with the
Court’s January 27, 2009 Order.
ALC
Rule 23 provides for the following:
Default. 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 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.
ALC Rule
23(A). On February 20, 2009, the Department filed a Motion to Dismiss, inter alia, and requested
that the Court dismiss this matter with prejudice against Respondent for its
failure to timely comply with the Court’s prior order. The Department also
based its motion upon Respondent’s failure to appear at a deposition scheduled
for 10:00 a.m. on Thursday, February 19, 2009.
In
compliance with ALC Rules 21 and 22(A), and SCRCP Rule 30, the Department sent
by certified mail return receipt requested to Respondent a Notice of Deposition
and Subpoena on February 5, 2009. The Notice and Subpoena required Respondent
to appoint an agent to appear for the taking of a deposition on February 19,
2009 at 10:00 a.m. The Department received the return receipt requested, and
it appears to be signed by Yu Sing Tam, an officer of Respondent. The receipt
is dated February 6, 2009. However, Respondent failed to appear for the deposition
at the designated place and time and did not contact the Department to arrange
a different date and time. In fact, the Department attempted to contact
Respondent – by telephone – on February 19 and 20, 2009, but these attempts
were unsuccessful. As a result of Respondent’s failure to appear at the
deposition, the Department incurred costs in the amount of $61.00. Therefore,
based upon Respondent’s failure to comply with the Court’s January 27, 2009
Order, and its failure to appear at the scheduled deposition, the Department
requests that this matter be dismissed. Further, the Department requests that
the Court order Respondent to pay the $61.00 it incurred as a result of
Respondent’s failure to attend the scheduled deposition. Accordingly, it is hereby
ORDERED that the hearing of this matter, currently scheduled at 2:00 p.m. on Tuesday,
March 3, 2009, is CANCELED; it is further
ORDERED that the Department’s Motion to Relax the Rule on Time is DENIED; it is further
ORDERED that the Department’s Motion to Award Costs is GRANTED. Respondent shall remit
to the Department $61.00 within thirty (30) days from the date of this Order
for its failure to appear at the scheduled deposition and for its failure to
contact the Department to arrange an alternate time and date for the
deposition; it is further
ORDERED that the Department’s Motion to Dismiss is GRANTED. The Department’s October
23, 2008 Determination is AFFIRMED based upon Respondent’s failure to comply
with the Court’s January 27, 2009 Order and for its failure to appear at the
February 19, 2009 deposition; and it is further
ORDERED that this matter is DISMISSED with prejudice.
AND
IT IS SO ORDERED.
_____________________________
Marvin F. Kittrell
Chief Judge
February 24, 2009
Columbia, South Carolina
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