The above-captioned case is before this Court upon the request of Respondent Maria
Wylie, d/b/a Save Way, for a contested case hearing to challenge the decision of Petitioner South
Carolina Department of Revenue (Department) to revoke her beer and wine permit for the
premises located at 2305 Union Highway in Gaffney, South Carolina. By a Motion for
Summary Judgment and/or Motion to Dismiss filed on May 2, 2005, the Department moved to
dismiss this matter because Respondent failed to timely file her request for a contested case with
the Department and thus failed to properly invoke this tribunal’s jurisdiction. Respondent has
not filed a response to the Department’s motion. For the reasons set forth below, I find that the
Department’s motion to dismiss must be granted.
BACKGROUND
On February 18, 2005, the Department issued an Amended Final Determination to
Respondent, in which it concluded that Respondent’s off-premises beer and wine permit should
be revoked for a fourth sale of beer to an underage individual within a fourteen-month period.
By a letter dated March 9, 2005, addressed to the Clerk of the South Carolina Administrative
Law Court, Respondent requested a contested case hearing to challenge the Department’s
February 18, 2005 Amended Final Determination. However, Respondent did not provide a copy
of the request to the Department or otherwise file a request for a contested case with the
Department within thirty days of the issuance of the Department’s determination. In fact, the
Department did not learn that Respondent had filed a request for a contested case hearing
regarding the February 18, 2005 Amended Final Determination until a telephone conversation
between the Department and Respondent subsequent to the Department’s issuance of an
administrative Order of Revocation on March 29, 2005.
DISCUSSION
The South Carolina Administrative Law Court is authorized to preside over contested
cases concerning the Department’s enforcement decisions regarding alcoholic beverage licenses
and permits. See S.C. Code Ann. §§ 1-23-600(B) (Supp. 2004), 12-60-1320 (Supp. 2004), and
61-2-260 (Supp. 2004). However, for this tribunal to hear such a contested case, its jurisdiction
must be properly invoked through a timely request for a contested case. 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 instant matter, Respondent failed to timely file her
request for a contested case to challenge the Department’s final determination and, therefore,
failed to properly invoke this tribunal’s jurisdiction.
The version of ALC Rule 11 in effect at the time Respondent filed her request for a
contested case sets forth the requirements for filing a contested case with this Court that control
the instant matter; that version of Rule 11 provided, in pertinent part:
In all contested cases except county tax matters and cases arising under the Setoff
Debt Collection Act, the request for a contested case hearing shall be filed with
the affected agency within thirty (30) days after actual or constructive notice of
the agency decision unless otherwise provided by statute. . . . At the same time, a
copy of the request for a contested case hearing, accompanied by the filing fee as
provided in Rule 71, shall also be filed with the clerk of the Court.
ALC Rule 11 (2004) (emphasis added).
Further, Section 12-60-1320, which provides for
contested case hearings on licensing actions taken by the Department, requires that the request
for such a contested case be filed “within thirty days after the date the [D]epartment’s
determination was sent by first class mail or delivered to the person.” S.C. Code Ann. § 12-60-1320 (Supp. 2004). However, in all other respects, this section defers to the ALC Rules for
requesting contested cases. Id. (“Requests for a hearing before the Administrative Law [Court]
must be made in accordance with its rules.”). In the case at hand, Respondent did not file a
request for a contested case with the Department—the “affected agency” in this matter—within
thirty days of the issuance of the Department’s February 18, 2005 Amended Final
Determination. Therefore, while Respondent did partially comply with the applicable version of
Rule 11 by timely filing a request for a contested case with the clerk of this Court, she did not
cross the primary jurisdictional threshold of timely filing a request for a contested case with the
Department. Accordingly, this tribunal has no choice but to find that Respondent failed to
properly invoke this Court’s jurisdiction and conclude that this matter must be dismissed.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that the Department’s motion is GRANTED and the
above-captioned case is DISMISSED with prejudice.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 31, 2005
Columbia, South Carolina
