ORDERS:
ORDER OF DISMISSAL WITH PREJUDICE
This matter came before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-4-520 (Supp.
1998) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 and Supp. 1998) for a contested case hearing. Petitioner applied for
an on-premises beer and wine permit for an establishment located at 206 West Main Street, City of Andrews, Georgetown
County, South Carolina. Reverend Dane Harris of The Piney Grove Missionary Baptist Church protested the Petitioner's
application. The South Carolina Department of Revenue (Department or DOR) filed a Motion to be Excused setting forth
that but for the protests of the Protestants this permit would have been issued. This motion was granted by my Order dated
September 10, 1999.
The first Notice of Hearing which scheduled this case to be heard on Wednesday, January 5, 2000, was mailed to the
Petitioner via certified U.S. mail on September 10, 1999. The Division received the return receipt (PS Form 3811), signed
by the Petitioner, on September 28, 1999. The Protestant and the Department were both notified of the hearing via regular
U.S. mail. Furthermore, the Protestant was forwarded the Division's "Administrative Memorandum to Individuals
Protesting a License or Permit," which explains the rights of Protestants in these matters. Thereafter, on Tuesday, January 5,
2000, the Division spoke with both the Petitioner and the Protestant by way of telephone, notifying them that the hearing
was cancelled and would be rescheduled as soon as possible.
On January 19, 2000, the Order and Amended Notice of Hearing scheduling the hearing for February 3, 2000, was mailed to
the Petitioner via certified U.S. mail as well as regular U.S. mail. The Protestant and the Department were again notified
using the regular U.S. postal service. As of the date of the hearing, the Division had not received the Petitioner's signed
return receipt and the amended notice sent via regular mail was not returned to the Division as "undeliverable." However,
on February 15, 2000, the January 19, 2000, amended notice was returned to the Division as "unclaimed."
On February 3, 2000, at 2:00 p.m., after waiting approximately ten (10) minutes for the Petitioner to appear, this hearing
was commenced. Neither the Petitioner nor the Protestant made an appearance. The Division, sua sponte, then dismissed
this action under Administrative Law Judge Division Rule 23 with prejudice. 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.
(Emphasis added). Furthermore, a Protestant is not considered a party of record to the contested case. Byers v. S.C.
Alcoholic Beverage Control Commission, 316 S.E. 2d 705 (S.C. App. 1984). To have full participation rights at the hearing,
including the right to cross examine witnesses, to receive a copy of the Administrative Law Judge's order, and to appeal an
adverse decision, a Protestant must request to be admitted as a party. See Scybala v. S.C. Alcoholic Beverage Control
Commission, 346 S.E. 2d 530 (S.C. App. 1986). The Protestant in this case did not move to be admitted as a party and
therefore cannot prevail in this matter in absentia.
"There is a limit beyond which the court should not allow a litigant to consume the time of the court . . . ." Georgian
Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E. 2d 16, 19 (Ct. App. 1990). Therefore, because the Petitioner 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.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
February 22, 2000
Columbia, South Carolina |
