BACKGROUND
In the above-captioned matter, Petitioner TRI of Sumter, LLC, d/b/a Quicktrip, submitted
an application to Respondent South Carolina Department of Revenue (Department) on June 30,
2004, for a retail liquor license for a liquor store to be located at 7A South Guignard Drive in
Sumter, South Carolina. Notice of the application was published in The Item, a daily newspaper
published and circulated in Sumter, South Carolina, on July 3, 10, and 17, 2004, and notice of
the application was posted at the site of the proposed liquor store between July 7, 2004, and July
22, 2004, as required by S.C. Code Ann. § 61-6-180(A)-(B) (Supp. 2004). The notice published
in the newspaper stated that, in order to be valid, a written protest of the issuance of the
requested license must be received by the Department no later than July 19, 2004; the notice
posted at the proposed location required any protests to be filed with the Department by 5:00
p.m. on July 27, 2004. The South Carolina Law Enforcement Division (SLED) Agent
investigating Petitioner’s application also left a protest form with the Sumter Police Department.
However, no written protests were received by the Department in July 2004.
Subsequently, on November 3, 2004, and November 8, 2004, the Department received
written protests of Petitioner’s application from Roosevelt Swinton on behalf of the Westside
Neighborhood Association, and Martha McElveen Horne on behalf of the City of Sumter. These
letters were dated October 25, 2004, and November 3, 2004, respectively. Because these letters
of protest were not timely filed and the Department found that Petitioner met the requirements
for a retail liquor license, the Department issued Petitioner’s requested license on November 29,
2004, and, by letters dated December 2, 2004, the Department informed the protestants that their
protests were untimely and would not be considered. These determinations were confirmed in a
Final Determination issued by the Department on January 26, 2005.
By letters dated December 23, 2004, and December 28, 2004, the City of Sumter and the
Westside Neighborhood Association, respectively, filed requests with the South Carolina
Administrative Law Court to intervene as parties in the matter of the granting of Petitioner’s
application for a retail liquor license. Having fully considered the protestants’ requests for
intervention, this tribunal must deny the requests, as there is no legal basis to do otherwise.
DISCUSSION
Construed strictly as motions for intervention, the protestants’ requests to intervene must
fail by their own terms. Plainly, in order for a party to intervene in a matter before the
Administrative Law Court, there must be “a pending contested case” for the party to join. See
ALC Rule 20(B) (setting out the grounds for intervention “in any pending contested case
hearing”); see also, e.g., Huckle v. City of Kansas City, 512 P.2d 457, 463 (Kan. 1973)
(“Intervention presupposes the pendency of a suit in a court of competent jurisdiction . . . .”)
(quoting Godfrey L. Cabot, Inc. v. Binney & Smith Co., 46 F. Supp. 346, 347 (D.C.N.J. 1942));
Stroud v. Liberty Mut. Ins. Co., 429 So. 2d 492, 497 (La. Ct. App. 1983) (holding that
intervention was properly denied where “there was no ‘pending action’ between [the parties] at
the time that the intervention was filed by Liberty Mutual”); City of Montgomery v. Newson,
469 S.W.2d 54, 56 (Mo. Ct. App. 1971) (“In order to intervene there must be an action pending
into which to intervene.”). In this instant matter, there has been no timely request for a contested
case or timely protest filed regarding Petitioner’s application for a retail liquor license for the
proposed location, and thus, there is no pending contested case concerning that application for
the purported protestants to intervene into. Accordingly, the protestants’ requests to intervene
must be denied.
Construed more broadly as requests for a contested case to challenge Petitioner’s
licensure, the protestants’ requests must also be rejected. The only mechanism by which a third
party may request a contested case to challenge the issuance of an alcoholic beverage permit or
license is to file a protest against the permit or license application where provided by statute.
See S.C. Code Ann. §§ 61-4-525 (Supp. 2004) (protests of retail beer and wine permits), 61-6-185 (Supp. 2004) (protests of retail liquor licenses), 61-6-1825 (Supp. 2004) (protests of
minibottle licenses); see also 23 S.C. Code Ann. Regs. 7-201 (Supp. 2004) (setting forth general
requirements for all protests). These protests must be timely filed within the period specified by
the notice of the application, see S.C. Code Ann. § 61-6-185 (requiring the Department to act
only “[u]pon receipt of a timely filed protest”); 23 S.C. Code Ann. Regs. 7-201 (stating that a
protest is only valid if “mailed to the [D]epartment and postmarked on or before the date set
forth in the Notice of Application published in the newspaper or the Notice posted at the site”),
and the failure to timely file such a protest deprives this tribunal of jurisdiction to hear the
challenge to the permit or license application. See Botany Bay Marina, Inc. v. Townsend, 296
S.C. 330, 372 S.E.2d 584 (1988) (holding that a party’s failure to file an appeal of a zoning
decision within the statutory time period divested the board of adjustment of jurisdiction to hear
the appeal), overruled on other grounds by Woodard v. Westvaco Corp., 319 S.C. 240, 460
S.E.2d 392 (1995); Burnett v. S.C. State Highway Dep’t, 252 S.C. 568, 167 S.E.2d 571 (1969)
(holding that a landowner’s failure to timely appeal a condemnation decision by the Highway
Department deprived the reviewing court of jurisdiction to hear the appeal); see also, e.g.,
Schaible Oil Co. v. N.J. Dep’t of Envtl. Prot., 586 A.2d 853, 855-56 (N.J. Super. Ct. App. Div.
1991) (“The statutory time limit for requesting an adjudicatory hearing is mandatory and
jurisdictional[;] . . . . enlargement of statutory time for appeal to a state administrative agency
lies solely within the power of the Legislature . . . and not with the agency or the courts.”); Lewis
v. N.C. Dep’t of Human Res., 375 S.E.2d 712, 714 (N.C. Ct. App. 1989) (“The right to appeal to
an administrative agency is granted by statute, and compliance with statutory provisions is
necessary to sustain the appeal.”). In the case at hand, the posted and published notices of
Petitioner’s application required protests of the application to be filed with the Department by
late July 2004. However, the protestants’ letters of objection submitted to the Department and
their requests for a hearing submitted to this Court were not filed until several months after the
period for filing a protest to Petitioner’s application had expired. Accordingly, even if the
protestants’ requests to intervene are construed liberally as requests for a contested case, this
case must be dismissed because the requests were not timely filed and thus do not properly
invoke this tribunal’s jurisdiction.
This tribunal is aware that the protestants’ filings in this matter were based, in large part,
upon the advice provided by the Department in its letters rejecting their protests. See, e.g.,
Letter from Osborne to City of Sumter of 12/2/04, at 1 (“You may contest the Department’s
decision in this matter . . . . [:] you must file a written protest . . . . [and] you will need to file
with the Administrative Law Court a motion to be admitted as a party in this matter.”).
However, this advice was incorrect—as noted above, the protestants had already missed their
opportunity to timely file a protest of Petitioner’s application and there was no pending contested
case proceeding for the protestants to intervene in. Moreover, it should be noted that the
protestants have not contended that their protests were, in fact, timely filed nor have they
challenged the adequacy of the notice of Petitioner’s application.
Therefore, for the reasons set
forth above,
IT IS HEREBY ORDERED that the requests of the City of Sumter and the Westside
Neighborhood Association to intervene in the matter of the Department’s issuance of a retail
liquor license to Petitioner are DENIED and the above-captioned matter is DISMISSED with
prejudice.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
March 18, 2005
Columbia, South Carolina
