ORDERS:
ORDER OF DISMISSAL
On August 7, 2001, Kenneth E. Allen, Attorney for Petitioner, filed a Motion to Dismiss the protest of Mr.
Reggie Garrett based on his failure to appear at the deposition on August 2, 2001, pursuant to a properly
served subpoena. Mr. Garrett did not provide any reason for his failure to appear and thus was served with
Notice of this Motion on August 2, 2001. ALJD Rule 21 provides that discovery shall be conducted pursuant
to S.C. Code Ann. § 1-23-320 (Supp. 2000). Further, parties shall be permitted no more than three
depositions under Rule 30, SCRCP. ALJD Rule 22 regarding Subpoenas provides in relevant part, "An
attorney authorized to practice before the courts of the State of South Carolina, as an officer of the court, may
also issue and sign a subpoena on behalf of the Division." Thus, a properly issued and served subpoena bears
the imprimatur of the Division's authority and justifies an appropriate sanction for default. ALJD Rule 23
provides that a contested case may be dismissed adversely to a defaulting party who fails to appear.
Mr. Garrett is only a protestant and has not made a motion to be admitted as a party to this action.
Nonetheless, the Department has stated that it would have issued the license but for the protest. While Mr.
Ingram, the principal in New South Club, was found in 1997 to be of unsuitable moral character for the
issuance of a permit, that finding was based on 1991 convictions for bank fraud. Because ten years have
passed without any criminal convictions, the Department has found that Mr. Ingram meets all the criteria for
issuance of the permit. Thus, Mr. Garrett's protest is the sole reason for holding the contested case hearing.
By his failure to appear or to show good cause why he did not, Mr. Garrett has waived his right to participate
in the contested case hearing.
Thus, since the Department has stated in its agency transmittal that Mr. Ingram meets all the criteria for the
issuance of the permit and since Mr. Garrett has waived his right to protest the application by his failure to
appear at his deposition, IT IS HEREBY ORDERED that the above-captioned case is dismissed with
prejudice. IT IS FURTHER ORDERED that the Department shall continue to process Mr. Ingram's
application.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
August 9, 2001
Columbia, South Carolina |