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SC Administrative Law Court Decisions

Daniel R. Chenoweth, Rusty's Too, Inc., d/b/a Rusty's Too vs. SCDOR

South Carolina Department of Revenue

Daniel R. Chenoweth, Rusty's Too, Inc., d/b/a Rusty's Too

South Carolina Department of Revenue

Ralph E. Hoisington, Esq., for Petitioner

Arlene D. Hand, Esq., for South Carolina Department of Revenue, John Goodman, Pro Se, Protestants



I. Introduction

This matter is a Motion to Dismiss for lack of jurisdiction. DOR and Chenoweth argue a hearing is allowed to a protestant only when a protest is filed prior to DOR approving an application, and, in this instance, DOR approved the permit and license before the protests were filed. Under the facts of this case, I find the Motion must be granted.

II. Facts

Chenoweth filed his application with DOR on May 1, 1996 for a beer and wine permit and a mini-bottle license for a location in Goose Creek, Berkeley County. On July 10, 17, and 24, 1996, Chenoweth published notice of his application by an announcement in the Berkeley Independent, a newspaper approved by DOR for announcements of applications for Berkeley County. The announcement advised individuals wishing to protest the application to contact DOR by August 1, 1996. No protests were received by DOR by the August 1, 1996 date. Chenoweth's proposed location was posted with a sign for fifteen days in October of 1996 which sign advised that the property would be the location for use of a beer and wine permit and a mini-bottle license. The sign further directed interested persons wishing to protest the permit and license to contact DOR by 5:00 on October 16, 1996. No protests were received by DOR by the October 16, 1996 deadline.

On October 25, 1996, DOR advised Chenoweth that while he could not sell beer, wine or mini-bottles and that a final permit and license had not been issued, his application was "conditionally approved" subject to conditions related to Chenoweth's building meeting all legal requirements. On January 24, 1997, Chenoweth notified DOR that the building for the proposed location was under construction and renovation.

While no protests existed prior to the approval of the application, opposition arose on January 24 and January 27, 1997. On those dates DOR received numerous protests to Chenoweth's application. Reversing its position, on January 28, 1997, DOR canceled the conditional approval and on February 25, 1997 denied the application. Chenoweth disagreed with DOR's new position and, on March 17, 1997, asked for a contested case hearing before the Administrative Law Judge Division (ALJD). On April 7, 1997, DOR notified the ALJD of the need for a contested case hearing and stated that DOR denied the permit due to the proposed location being within an improper proximity to residences in the area.

As the matter was being prepared for hearing, DOR reversed its position a second time. On April 23, 1997, by a Motion to Dismiss, DOR notified the ALJD that DOR no longer contested the application and would present no challenge to the proposed location. Further, DOR argued the ALJD lacked jurisdiction to hear any challenge by the protestants since no timely protest was filed. Chenoweth joined in the Motion.

III. Law and Analysis

One seeking an adjudicatory hearing has the burden of proving the hearing body has jurisdiction over the dispute. Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C. 151, 268 S.E.2d 42 (1980). In general, jurisdictional requirements for quasi-judicial review are set by the rules and regulations of the administrative agency involved. 73A Public Administrative Law and Procedure § 118 (1983). For a mini-bottle license and a beer and wine permit, an adjudicatory hearing is permitted by S.C. Code Regs. 7-3 and S.C. Code Regs. 7-90 as long as the protestant files a request for a hearing.

A. Time Period To Protest

The regulations, however, do not state a time within which an application must be protested. Deciding what, if any, time limit is imposed is critical since a failure to file on time denies jurisdiction to the hearing body. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S. C. Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949).

1. No Specific Number of Days In Which To Protest

Here, the time period for filing a protest in an application dispute may be examined by reviewing the method used by the regulations for treating applications versus renewals. See City of Spartanburg v. Leonard, 180 S.C. 491, 186 S.E. 395 (1936) (meaning of words must be read as a part of the whole enactment rather than isolated). A renewal must be protested within a set time limit with discretion authorized to deviate from the time limit. See Regs. 7-3 and 7-90 (protest of a renewal must be filed within 60 days of expiration of the license or permit but late filings may be accepted). No time limitation is set for protesting an application. The decision to limit the time for renewals but not for applications shows an intent not to place a limit on the time in which to protest an application. Thus, no set number of days exists for protesting an application.

2. Maximum Time In Which To Protest

Since no specific time period is listed, do the regulations set a maximum time beyond which the protest is too late? I find the regulations prohibit a protest unless filed prior to the date upon which the application is approved. The regulations hold that until a hearing is held no application "will be approved" when a protest is filed. Such language plainly grants a hearing for applications that are not yet approved. Obviously, once the application is approved, no application that "will be approved" exists, and, thus, the time for filing a protest expires with the approval of the application.

B. Application of Time Period

Here, the application was "conditionally approved" on October 25, 1996 with the conditions requiring Chenoweth's building to meet DOR's requirements.(1) DOR is authorized to approve applications and "establish conditions ... which the [DOR] considers necessary" for the circumstances involved. S.C. Code Ann. § 61-2-80 (Supp. 1996). On October 25, 1996, DOR exercised its authority to approve applications and impose conditions. The protests were not filed until January 24, 1997, three months later. By January 24, 1997, Chenoweth was constructing and renovating his building in reliance upon the conditional approval. Accordingly, the protests were not timely filed and no jurisdiction exists for the ALJD to hear the merits of the protest.

IV. Order

The Motion to Dismiss filed by DOR and joined in by Chenoweth is granted. This matter is ended since the ALJD has no jurisdiction to entertain a hearing sought by protestants who, as is the case here, filed their protests after the application has been approved.


  Ray N. Stevens

Administrative Law Judge

May 23, 1997

Columbia, South Carolina

1. Once the application was approved by DOR on October 25, 1996, the time period for protest expired. The fact that DOR later reversed its position on January 28, 1997 and denied the application on February 25, 1997 does not convert the protests of January 24, 1997 into timely protests. First, the late filing of a jurisdictional notice requirement cannot be cured by subsequent actions. See 66 C.J.S Notice § 14 (1950). Second, in this case, DOR reversed its position a second time giving the practical effect of reinstating the October 25, 1996 conditional approval.

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