ORDERS:
ORDER ON RECONSIDERATION
I. Introduction
The Transmittal Letter from DOR in this matter explains that DOR did not process the beer and wine
application of Joseph H. Moore, d/b/a Moore Oil Company (Moore) because Moore failed to
demonstrate a material change had occurred since the prior May 22, 1996 denial of the location.
Consistent with the Transmittal Letter, the Town of Turbeville and Donald G. Coker (Intervenors)
filed a motion to limit the scope of the hearing to the single issue of whether DOR properly decided
not to process the beer and wine application of Moore. The Intervenors' motion was granted on
October 6, 1997.
On October 15, 1997, DOR filed a Motion For Reconsideration arguing that the order was in error
since it was based upon an erroneous transmittal letter. DOR now argues (contrary to the position
in the Transmittal Letter) the application should be processed by DOR and denied as an improper
location. Not surprisingly, while Moore asserts the location is proper, Moore agrees with the Motion
For Reconsideration and asserts the matter should be heard on the merits of whether the location is
or is not a proper location. Equally as unsurprising, while the Intervenors assert the location is
improper, the Intervenors oppose the motion. Under the circumstances here, the October 6, 1997
Order is vacated, and this contested case is dismissed without prejudice.
II. Analysis
A contested case arises when DOR refuses to grant a beer and wine permit. Schudel v. South
Carolina Alcoholic Beverage Control Commission, 276 S.C. 138, 276 S.E.2d 308 (1981). Once
the contested case arises, the ALJD hears the matter under the Rules of Procedure for the
Administrative Law Judge Division. §§ 1-23-600; 1-23-650 (Supp. 1996). Under the ALJD Rules,
any matter not covered explicitly by the ALJD Rules may be resolved by relying upon the South
Carolina Rules of Civil Procedure. ALJD Rule 52. Here, the most appropriate result is a dismissal
without prejudice. See SCRCP Rule 41(a)(2) (dismissal without prejudice may be ordered by the
court under such terms and conditions as the court deems proper.)
During the hearing on the Motion For Reconsideration, DOR asserted the grounds stated in the
Transmittal Letter were erroneous. Thus, moving forward on the matter as it currently exists raises
confusion and presents a need for correction. Further, both DOR and Moore presented no objections
to a dismissal without prejudice in this matter. Such a dismissal will allow DOR to properly file a
correct transmittal letter and allow Moore to ascertain the specific basis for DOR's denial of his
application.
Likewise, no prejudice results to the Intervenors from a dismissal under SCRCP 41(a)(2). The
Intervenors may present to DOR and raise before the ALJD any and all arguments relating to the
appropriateness of DOR's action to process Moore's application. Further, the Intervenors may
present to DOR and raise before the ALJD arguments asserting the location is improper. In short,
the Intervenors do not forfeit their day in court and may raise all issues supporting a denial of the
permit.
III. Order
Accordingly, the following Order is entered:
1. This matter is dismissed without prejudice.
2. By November 6, 1997, DOR must decide whether it will process Moore's application.
3. By November 17, 1997, DOR shall provide written notice to Moore and the Intervenors of
DOR's decision on the processing issue with such decision explaining the basis upon which
DOR relied in deciding to process or not to process the application.
4. Also by November 17, 1997, if DOR decides to process the application, DOR shall provide
in writing to Moore and the Intervenors, DOR's basis for its decision to either grant or deny
Moore's application.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 28th day of October, 1997
Columbia, South Carolina |
