ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This is a contested case involving the South Carolina Department of Revenue’s
(Department) denial of the Respondent’s request to set aside its Order revoking the Respondent’s
beer and wine permit. A hearing was held before me on April 16, 2003, at the offices of the
Administrative Law Judge Division (ALJD or Division) in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner and the Respondent.
2.The Respondent, Roller, Inc., d/b/a Seaside Plaza Grocery (Seaside), held an off-premise beer and wine permit for a convenience store located at 707 Flagg Street, Myrtle Beach,
South Carolina.
3.On July 24, 2002, the South Carolina Law Enforcement Division conducted an
undercover inspection of Seaside using an underage cooperating individual (UCI). Afterwards,
the Respondent was issued an administrative citation for permitting the purchase of beer by a
person under twenty-one (21) in violation 23 S.C. Code Ann. Regs 7-9(B) (Supp. 2001). The
Respondent has three (3) previous violations of the laws regulating its beer and wine permit
within three (3) years of July 24, 2002. Those violations were for permitting an underage person
to purchase beer. The dates of those violations and the punishments received were as follows:
a.April 28, 2000 - the Respondent paid a $400.00 fine;
b.May 20, 2000 - the Respondent paid an $800.00 fine; and
c.June 1, 2001 - the Respondent received a forty-five (45) day suspension.
On August 13, 2002, the Department issued an “Initial Notice of Revocation” informing the
Respondent that the Department would revoke Seaside’s permit if it did not receive a protest of
that determination within thirty (30) days. The Respondent received the Department’s Notice on
August 14, 2002. Consequently, the Department issued a Revocation Order which was served
upon the Respondent on October 23, 2002. Afterwards, the Respondent requested a hearing
concerning Seaside’s permit revocation on November 6, 2002.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.The Department is vested with the authority to administer the provisions of Title
61 governing alcoholic beverages, beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2001). S.C.
Code Ann. § 1-23-600 (1986 & Supp. 2001) grants jurisdiction to the Division to hear contested
cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp.
2001) grants the Division the authority to hear contested case hearings in matters governing
alcoholic beverages, beer and wine.
2. Seaside asserts that it hired an attorney to represent the Clerk who was accused of
making the unlawful sale to the UCI. Seaside did not hire an attorney when it received the
Department’s Initial Determination because it believed that this matter would be resolved at the
criminal proceeding concerning the Clerk’s charges. Therefore, Seaside argues that it should be
permitted to contest the Department’s revocation of its permit due to its excusable neglect. To the
contrary, the Department contends that Seaside failed to appeal within the thirty-day (30)
statutory period permitted and thus has no further right to appeal the revocation of its permit.
The procedure for challenging an initial notice of revocation or assessment is set forth at
S.C. Code Ann. § 12-60-1310 (2000). Section 12-60-1310 (A) provides:
If a division of the department . . . 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 the
division decision by filing a written protest with the department within thirty days
of the . . . proposed suspension, cancellation, or revocation. The department may
extend the time for filing a protest at any time before the period has expired.
Section 12-60-1310(A) sets forth a fixed period of time by which an individual can seek a
contested case hearing before the ALJD. “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,
There 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). I therefore find that Section 12-60-1310
(Supp. 2001) operates as a “statute of limitations.”
Hence, Seaside was required to protest the Department’s determination to revoke its
permit within thirty (30) days of the proposed revocation. Furthermore, though the Department
may have extended the time for filing a protest before the thirty (30) day period expired, the
Department did not exercise that option in this case. In fact, when the Respondent filed its
protest of the Department’s decision, its time to appeal had long since expired. Accordingly, I
conclude that the Respondent failed to meet the mandatory time period to protest the
Department’s decision.
The Respondent contends that its protest should proceed forward because its failure to
meet the statute’s deadline was the result of excusable neglect. “[A] party has a duty to monitor
the progress of his case. Lack of familiarity with legal proceedings is unacceptable and the court
will not hold a layman to any lesser standard than is applied to an attorney.” Goodson v. Am.
Bankers Ins. Co., 295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App.1988). On the other hand,
considering the elements of excusable neglect set forth in Mictronics, Inc. v. South Carolina
Department of Revenue, 345 S.C. 506, 548 S.E.2d 223(2001), I find that the Respondent’s failure
to protest was the result of excusable neglect. However, excusable neglect does not toll or
otherwise stay a statute of limitations. Perdue v. Hess, 484 S.E.2d 182 (W. Va.1997); City of
Tupelo v. Martin, 747 So.2d 822 (Miss.1999); Mitchell v. State Recreation Com'n Snowmobile
Trails, 968 P.2d 37 (Wyo.1998). Cf. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).
Therefore, I find that there is no authority to extend or expand the time in which notice of intent
to appeal must be served based upon the Respondent’s excusable neglect.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the Department’s decision to revoke the Respondent’s permit is upheld.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
July 7, 2003
Columbia, South Carolina |
