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 18, 2005. Respondent
is contesting the South Carolina Department of Revenue's Final Department
Determination that Respondent violated 23 S.C. Code Ann. Regs. 7-200.4 (Supp.
2004) by permitting the purchase of beer by a person under twenty-one (21)
years of age. A Motion to Dismiss was filed by the Department of Revenue
(Department) on November 7, 2005. Specifically, the Department sets
forth that this contested case be dismissed on the grounds that Respondent
failed to timely challenge the Department's initial notice of revocation.
LEGAL ANALYSIS
The
Department of Revenue argues that Respondent failed to timely challenge the
Department's initial notice of revocation. 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. § 12-60-1310 (Supp. 2004) sets forth:
If
a division of the department denies a person a license that the department
administers, or sends by first class mail or delivers a notice to the license
holder that the division of the department shall suspend, cancel, or 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 denial, or
proposed suspension, cancellation, or revocation. The department may extend the
time for filing a protest at any time before the period has expired.
Therefore,
pursuant to Section 12-60-1310, Respondent had ninety (90) days to file a
written protest with the Department after the date the Department's decision
letter was mailed to Respondent or delivered to Respondent via other means. In
the case at hand, the initial Notice of Suspension was sent by first class mail
to Respondent on March 3, 2005. However, Respondent did not respond to that
letter within the ninety (90) day time frame proscribed by Section 12-60-1310.
ALC Rule
11 and Section 12-60-1310 set forth a fixed period of time by which an
individual can seek contested case review of a 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 12-60-1310 operates as a “statute of limitations.”
Accordingly, Respondent’s failure to challenge the Department's decision within
ninety (90) 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
December 6, 2005
Columbia, South Carolina |
