I. Introduction
The matter before the Administrative Law Court (ALC) is a Motion for Summary Judgment
and/or Motion to Dismiss filed by the South Carolina Department of Revenue (DOR). Maria
Wylie, d/b/a Save Way (Wylie) opposes the motion and filed a written response.
II. Facts
The facts controlling this motion are undisputed. On July 8, 2004, DOR issued to Wylie a Notice
of Intent to Revoke her beer and wine permit. The notice advised Wylie that she had 90 days in
which to challenge DOR=s decision. The 90th day expired on October 6, 2004 with Wylie having
made no filing with DOR challenging the Intent to Revoke. Accordingly, and in due course, on
October 28, 2004, DOR notified Wylie in a Final Determination letter that her off premises beer
and wine permit had been revoked.
However, soon after October 28, 2004 and in a timely manner, Wylie notified DOR that she
wished to appeal the final determination decision. Consistent with her request, on November 18,
2004, DOR submitted to the ALC an agency transmittal letter notifying the ALC that Wylie was
requesting a contested case hearing. The matter was assigned to an Administrative Law Judge
on November 23, 2004. The assigned judge by order dated December 3, 2004, notified the
parties that the matter would be set for hearing in the near future. However, prior to the matter
being set for hearing, DOR on December 14, 2004, filed a Motion for Summary Judgment.
III. Discussion
DOR=s motion argues that the revocation must be upheld since Wylie failed to timely challenge
the Notice of Intent to Revoke. Wylie agrees that she did not challenge the Notice of Intent to
Revoke within the ninety day period. However, she seeks whatever relief the Court can provide.
Motions for summary judgment are governed by SCRCP 56. See ALC Rule 19 (pre-hearing
motions allowed), ALC Rule 68 (questions not addressed by the ALC Rules are resolved by
application of the South Carolina Rules of Civil Procedure) and South Carolina Rules of Civil
Procedure, Rule 56 (motions for summary judgment proper). Summary judgment Ashall be
rendered forthwith if the [filed documents] . . ., show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.@ Café
Associates, Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991); Rule 56(c), SCRCP. See also
Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Standard Fire Ins. Co. v. Marine
Contracting and Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990).
The starting point for analysis in this case is the permit holder=s prehearing remedy found in S.C.
Code Ann. ' 12-60-1310(A):
If a division of the department . . . delivers a notice to the license holder that the
division of the department shall . . . revoke a license administered by the
department, then the person can appeal by filing a written protest with the
department within ninety days of the . . . proposed . . . revocation. The department
may extend the time for filing a protest at any time before the period has expired.
If the written protest to DOR does not achieve the relief sought by the permit holder, the permit
holder=s forum for relief moves from DOR to a contested case hearing before the ALC.
However, a contested case hearing is available only A[u]pon exhaustion of [the permit holder=s]
prehearing remedy@ as provided in S.C. Code Ann. ' 12-60-1310. See S.C. Code Ann. ' 12-60-1320 (AUpon, 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.@).
Thus, for the instant case, the issue becomes deciding what relief is available to a permit holder
such as Wylie who receives a Notice of Intent to Revoke but fails to file a protest with DOR.
The answer is found in the controlling statute of S.C. Code Ann. ' 12-60-1330:
Before a person may seek a determination by an administrative law judge under
Section 12-60-1320, he shall exhaust his prehearing remedy. If a person requests
a contested case hearing before the Administrative Law Judge Division without
exhausting his prehearing remedy because he failed to file a protest, the
administrative law judge shall dismiss the action without prejudice. (Emphasis
added).
Here, all agree that Wylie failed to file a protest with DOR and that such a failure is a failure to
exhaust her prehearing remedy. Further, all agree that Wylie filed a request for a contested case
before the ALC. Accordingly, S.C. Code Ann. 12-60-1320 requires that the instant case be
dismissed but dismissed without prejudice.
IV. Order
The following procedures shall apply to facilitate the prehearing remedy:
1.Within 30 days of the date of this decision, Wylie must correspond with DOR and/or
meet with DOR officials in person.
2.Such correspondence and/or meeting with DOR officials must clearly and succinctly set
forth Wylie’s claims and arguments on why her beer and wine permit should not be
revoked.
3.DOR shall consider Wylie’s position.
4.Within 30 days after receiving Wylie’s claims and arguments on why her beer and wine
permit should not be revoked, DOR shall issue its Final Determination letter.
5.If, after receiving DOR’s Final Determination letter, Wylie wishes to challenge DOR’s
decision, she must seek a new contested case hearing before the ALC and must do so
within 30 days of receiving the Final Determination letter.
The following shall apply while this matter is pending final resolution:
1.Wylie’s permit is not revoked.
2.To the extent that Wylie has surrendered her permit, such shall be returned to her until
the merits hearing in this matter is resolved.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: January 4, 2005
Columbia, South Carolina
