South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Gee Willickers, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
South Carolina Department of Revenue

Respondent:
Gee Willickers, Inc.
 
DOCKET NUMBER:
05-ALJ-17-0276-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL WITH PREJUDICE

STATEMENT OF THE CASE

This matter is before me on a request for contested case hearing filed with the Administrative Law Court (ALC or Court) by Respondent on July 13, 2005. Respondent is contesting the South Carolina Department of Revenue's Final Department Determination that Respondent violated S.C. Code Ann. § 61-4-580(3) (Supp. 2004) by permitting games of chance at Gee Willickers, Inc. A

Motion for Summary Judgment was filed by the Department of Revenue (Department) on August 17, 2005.[1] Specifically, the Department sets forth that summary judgment should be granted and this contested case dismissed with prejudice on the grounds that Respondent failed to timely request a hearing in this matter.

LEGAL ANALYSIS

The Department of Revenue argues that Respondent failed to timely file its request for a contested case hearing before the ALC. Rule 11 of the Rules of Procedure for the Administrative Law Court provides, “[t]he request for a contested case hearing shall be filed with the affected agency within the time frame authorized by that agency.” S.C. Code Ann. § 12-60-460 (Supp. 2004) sets forth:

Upon exhaustion of his prehearing remedy, a taxpayer 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 taxpayer. Requests for a hearing before the Administrative Law Judge Division must be made in accordance with its rules.

(Emphasis added). Therefore, pursuant to Section 12-60-460, Respondent's relief had to be filed with the Court within thirty (30) days after the date the Department's decision letter was mailed to Respondent or delivered to Respondent via other means. In the case at hand, Respondent, in a letter dated July 14, 2005 to the Department, set forth: “In reviewing my file, it appears as though I may have failed to forward a request for contested case after receiving your Final Department Determination on or about June 7, 2005. Thus, in accordance with Rule 11, I am providing this request for contested case at this time.”

The Respondent contends that the Department’s final order should not be binding because the machine upon which the violation was based was determined not to be a unlawful pursuant to S.C. Code Ann. § 12-21-2710 (Supp. 2004), by a Charleston County magistrate on or about August 29, 2005. Here, the Department could not be foreclosed from pursuing its claim by the principle of res judicata because this case does not involve the same issues. See South Carolina Dept. of Social Services v. Basnight, 346 S.C. 241, 551 S.E.2d 274 (Ct. App. 2001). The Department, nevertheless, could be barred under the doctrine of collateral estoppel if the Respondent established the elements of that doctrine. Richburg v. Baughman, 290 S.C. 431, 351 S.E.2d 164, 166 (1986). See also Carman v. South Carolina Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383, 386 (1994) (applying collateral estoppel in administrative proceedings).

ALC Rule 11 and Section 12-60-460 set forth a fixed period of time by which an individual can seek contested case review of a Final Department Determination. “A statute of limitations has been defined as the action of the state in determining that after the lapse of a specified time a claim shall not be enforceable in a judicial proceeding. Thus, any law which creates a condition of the enforcement of a right to be performed within a fixed time may be defined as a statute of limitations.” 51 Am. Jur. 2d Limitation of Actions § 2 (1970). Furthermore,

[t]here has been some difference of opinion among the authorities whether, at least in the absence of an expression of the legislature in this particular respect, the running of a statute of limitations operates to extinguish merely the remedy or to extinguish the substantive right as well as the remedy. The general rule in this respect, supported by the great preponderance of the authorities on the subject, is that a statute of limitations operates on the remedy directly only and does not extinguish the substantive right. Under this rule the courts have regarded true statutes of limitation as doing no more than cut off resort to the courts for enforcement of the substantive claim or right.

51 Am. Jur. 2d Limitation of Actions § 22 (1970). Additionally, “[s]tatutes of limitations are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system.” City of North Myrtle Beach v. Lewis-Davis, 360 S.C. 225, 231, 599 S.E.2d 462, 465 (Ct. App. 2004). Moreover, this court has no authority to expand the time in which the request for a hearing must be filed. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d. 206 (1985).

I find that Section 12-60-460 operates as a “statute of limitations.” Accordingly, Respondent’s failure to request a contested case hearing thirty (30) days after receipt of the Department's decision letter bars the ALC’s determination of the merits of this case which includes consideration of its argument that the Department was estopped from pursuing this case. cf. Bettis v. Busbee, 283 S.C. 502, 323 S.E.2d 536 (S.C. App. 1984). Based on the foregoing,

IT IS HEREBY ORDERED that Respondent's contested case is dismissed with prejudice.

AND IT IS SO ORDERED.

 

_________________________________

Ralph King Anderson, III

Administrative Law Judge

 

 

November 8, 2005

Columbia, South Carolina

 



[1] Although the Department of Revenue captioned its motion as a Motion for Summary Judgment, that motion is postured here as a Motion to Dismiss for failure to timely file. Furthermore, on September 14, 2005, Respondent filed its own Motion for Summary Judgment in this contested case. However, as Respondent did not timely file this matter with the Court, that motion is deemed denied by the issuance of this Order of Dismissal with Prejudice.


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