ORDERS:
ORDER OF DISMISSAL
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC or
Court) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2005). The
South Carolina Department of Revenue (Department) seeks a revocation of
Respondent’s beer and wine permit and liquor by the drink license pursuant to S.C.
Code Ann. § 61-4-580 (Supp. 2005). After proper notice, a hearing was held
before me on October 11, 2006, at the offices of the Administrative Law Court
in Columbia, South Carolina. Attorney for Petitioner made a Motion to Dismiss
based on the fact that the Court does not have jurisdiction over this matter. This
case is dismissed as set forth below.
FINDINGS
OF FACT
Having observed
the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the
parties, I make the following Findings of Fact by a preponderance of the
evidence:
1. On March 9, 2006, Petitioner sent a Notice of
Intent to Revoke Respondent’s beer and wine permit and liquor by the drink
license due to an incident that occurred at Respondent’s place of business.
Petitioner did not receive a response until June 8, 2006, ninety-one (91) days
from the date of the Notice of Intent to Revoke. Furthermore, the June 8, 2006
communication was not in the form of a Letter of Protest, but rather was a
facsimile requesting additional time in which to file a Letter of Protest. Petitioner
contacted Respondent’s attorney, Joenathan Chaplin, who stated that he would
have the Letter of Protest in by June 16, 2006. Petitioner then e-mailed Mr.
Chaplin, confirming their telephone conversation and requesting that in
addition to his Letter of Protest, he also set forth good cause as to why he
failed to exhaust his administrative remedies within the prescribed time
period.
2. On June 20, 2006, having received no further
communication from Mr. Chaplin, Petitioner issued a Final Agency Determination
revoking Respondent’s beer and wine permit and liquor by the drink license. Following
the Final Agency Determination, Mathias Chaplin, who is currently representing
Respondent, filed a request for a Contested Case Hearing, appealing the
Department’s revocation of Respondent’s license.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C.
Code Ann. § 1-23-600 (Supp. 2005) grants jurisdiction to the Court to hear
contested cases under the Administrative Procedures Act. Specifically, S.C.
Code Ann.
§§ 61-2-20 and 61-2-260
(Supp. 2005) grant the ALC the authority to hear contested case hearings in
matters governing alcoholic beverages, beer and wine.
2. Permits
and licenses issued by this state for the sale of liquor, beer and wine are
privileges to be used and enjoyed only so long as the holder complies with the
restrictions and conditions governing them. See Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
3. If
the Department revokes a license, the license holder can appeal that revocation
in writing within ninety days of the revocation. “The department may extend
the time for filing a protest at any time before the period has
expired.” S.C. Code Ann. § 12-60-1310 (A) (Supp. 2005). (emphasis added).
4. In
this case, Respondent alleges that there are numerous reasons which explain his
failure to timely file a Letter of Protest, including currently having other
issues to resolve with the Department of Revenue, having to pay back taxes, and
the inability to locate the dancers involved in the initial citation due to the
fact that no ticket was ever issued to them. S.C. Code Ann. § 12-60-1330
(A)(3) (Supp. 2005) provides that:
If a person fails to file a
protest with the department within ninety days of the date of the denial or
proposed suspension, cancellation, or revocation, the person is in default, and
the department shall deny, suspend, cancel, or revoke the license or permit
appropriate. The denial, suspension, cancellation, or revocation of the
license or permit may be lifted by the administrative law court for good cause shown, and remand the matter to the department.
(emphasis
added). “Good cause” is not defined in Chapter 60 of Title 12. In Black's Law
Dictionary it is defined, in part as, “[a] legally sufficient reason.” Black's
Law Dictionary 213 (7th ed. 1990). Furthermore, in the context
of whether a party is entitled to relief from an entry of default under Rule
55(c), SCRCP, the courts have considered the promptness with which relief is
sought, the existence of a meritorious defense, and the prejudice to other
parties as relevant factors in determining whether “good cause” has been shown. See, e.g., New Hampshire Ins. Co. v. The Bey Corp., 312
S.C. 47, 435 S.E.2d 377 (Ct. App. 1993).
Here, though I do not find any significant prejudice to the
Department in allowing this case to go forward, I do not find that Respondent’s
reasons establish good cause. The Respondent has yet to formally file a Letter
of Protest and the evidence presented simply did not give sufficient reasons
for Respondent’s failure to do so within the ninety days provided in the
statute. Therefore, since Respondent failed to file his Letter of Protest
within the ninety day time limit prescribed, and did not provide good cause as
to why this case should be remanded to the Department for further
determination, I conclude that this case should be dismissed.
ORDER
Based upon the
foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY
ORDERED that the Department’s decision to revoke the Respondent’s license
and permit is AFFIRMED.
AND IT IS SO
ORDERED.
___________________________
Ralph King Anderson, III
Administrative
Law Judge
October 16, 2006
Columbia, South Carolina
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