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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Five Chop Social Club vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Five Chop Social Club
1035 Five Chop Road, Orangeburg, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-07-0440-CC

APPEARANCES:
For the Petitioner: Kenneth E. Allen, Esquire

For the Respondent: Jeffrey M. Nelson, Esquire

For the Protestant: No Appearance
 

ORDERS:

ORDER OF DISMISSAL

STATEMENT OF THE CASE



This matter comes before the Administrative Law Judge Division (Division) pursuant to

S.C. Code Ann. §1-23-310 et seq. (1986 & Supp. 2001), S.C. Code Ann. § 61-2-90 (Supp. 2001), S.C. Code Ann. § 61-4-520 (Supp. 2001), and S.C. Code Ann. § 61-6-1820 (Supp. 2001) for a contested case hearing. The Petitioner seeks an on-premise beer and wine permit and a sale and consumption (minibottle) license for its bona fide nonprofit organization located at 1035 Five Chop Road, Orangeburg, South Carolina. The South Carolina Department of Revenue (Department) set forth in the Agency Transmittal to the Division that it would have issued the permit and license to the Petitioner but for the protest it received from a concerned citizen who raised the issue of suitability of location.

On October 16, 2002, the Petitioner filed a Motion to Dismiss Protest. A hearing on that Motion was held on October 24, 2002 at the offices of the Administrative Law Judge Division. Wanda Webb, the Protestant, did not appear at the hearing after receiving timely notice of the motion hearing. Moreover, Ms. Webb did not notify the Division of any reason why she could not attend the hearing or request a continuance of the Motion hearing. The Petitioner was present at the hearing with counsel, as was the Department.

After waiting approximately ten (10) minutes for the Protestant to appear, the Court commenced this hearing. The Petitioner presented an Affidavit of Service to the Division that Ms. Webb had been served with the Notice of Motion and Motion to Dismiss Protest and the Division's Notice of Motion Hearing at 107 Jade Circle, Orangeburg, South Carolina, the address listed in her protest. The Affidavit further set forth that Henry Graham received service of the Notices for Ms. Webb on October 22, 2002 at 7:15 a.m. (1) The Petitioner then moved that this case be dismissed with prejudice under Administrative Law Judge Division Rule 23. Rule 23 provides:

The administrative law judge may dismiss a contested case or dispose of a contested case adverse to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the judge or fails to comply with any interlocutory order of the administrative law judge. Any non-defaulting party may move for an order dismissing the case or terminating it adversely to the defaulting party.



Because the Protestant did not appear before the Division, did not request a continuance, and has not otherwise contacted this tribunal regarding this hearing as of the issuance of this Order,

IT IS HEREBY ORDERED that the above-captioned case is dismissed with prejudice.

IT IS FURTHER ORDERED that the Department resume processing the Petitioner's application and issue the permit and license being sought by the Petitioner upon the payment of the proper fees and costs.

AND IT IS SO ORDERED.







_______________________________

Ralph King Anderson, III

Administrative Law Judge





October 24, 2002

Columbia, South Carolina

1. The Petitioner also presented an Affidavit of Non-Service for Harold Rothman. That Affidavit set forth that the Process Server was unable to locate the address Mr. Rothman gave on his protest to the Department of Revenue. However, Mr. Rothman was not a Protestant of record in this contested case as he had indicated he would not be attending the hearing.


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