ORDERS:
ORDER REMANDING CASE
STATEMENT
OF THE CASE
This
is a contested case involving the South Carolina Department of Revenue’s
(Department) denial of the Respondent’s request to set aside its decision
revoking the Respondent’s beer and wine permit. A hearing was held before me
on October 25, 2006, at the offices of the Administrative Law Court.
STIPULATIONS
OF FACT
1. Sandy’s
Lakeside Bar & Grill, Inc. (Sandys) holds a permit issued by the South
Carolina Department of Revenue (Department) that permits it to sell beer and
wine for on premises consumption at the location 1011 Shirley Circle, Anderson,
South Carolina. The Permit No. is 32019241 PBW. Sandys held this permit for
this location on March 30, 2006.
2. On March 30,
2006 South Carolina Law Enforcement Division (SLED) agents, in conjunction with
an eighteen year old underage confidential informant (UCI) entered the location
at the above referenced address. He ordered a beer from the bartender on duty,
Cynthia Platt. Ms. Platt requested identification from the UCI. He presented
his South Carolina Driver’s License that showed his birth date of
“06-02-1987.” Ms. Platt sold the beer to the UCI anyway.
3. Ms. Platt
was charged with transfer of beer to an individual under the age of
twenty-one. Sandys was issued an administrative citation for knowingly
permitting a person under the age of twenty-one to purchase beer on the
licensed premises, 23 S.C. Code Ann. Regulation 200.4.
4. Sandys has
had three prior alcohol violations within a three year period at this specific
location.
5. Sandys
admits that on March 30, 2006 it committed a violation of Regulation 7-200.4 by
permitting the eighteen year old UCI purchase beer on its licensed premises.
6. The
Department’s Regulatory Division issued Sandys and Initial Notice of Intent to
Revoke dated April 18, 2006. The Department issued its Final Agency
Determination in this matter on August 17, 2006.
Both the Initial Notice and the Final Agency Determination were prepared and
served in compliance with the Revenue Procedures Act, S.C. Code Ann. Sections
1-23-10, et. seq. (Supp. 2005).
7. Sandys
submitted an untimely protest to the Department. The envelope containing
Sandy’s protest is postmarked July 29, 2006. The Department received the
protest on August 1, 2006.
8. Further, the
parties stipulate to the entry of the following Petitioner’s Exhibits into
evidence without objection:
a.
Department’s Final Determination dated May 12, 2006;
b. Initial
Notice of Intent to Revoke;
c.
Envelope Containing Sandy’s Protest.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
The owner of Sandy’s,
Denise Sisk, receives her business mail at her family’s restaurant in Belton,
South Carolina. The Letter of Intent to Revoke was sent to that address where
it was picked up by Denise Sisk’s sister. Her sister later gave the letter to
their mother, who, in turn, placed the letter in the cash register of Sandys
underneath the change drawer. Denise Sisk saw the letter in late May of 2006,
and recalls seeing the ninety (90) days time limit in which to respond. A few
days later, however, the restaurant was broken into and among other items, the
cash register with the letter in it was stolen.
Based
upon her brief perusal of DOR’s letter, Ms. Sisk was under the belief that the
ninety days in which to file her protest were up at the end of July or
beginning of August of 2006. Ms. Sisk was also under the mistaken belief that
in order to file her Letter of Protest she had to also send in the Letter of
Intent to Revoke, which was stolen along with the cash register.
Ms. Sisk was thus unsure of the procedural steps to take to file her protest
without the Letter of Intent to Revoke. Therefore, she attempted to contact
the Department to find out how she needed to proceed. Ms. Sisk obtained an 800
number for the Department from the phone book and after two unsuccessful
attempts at reaching someone, she asked her employee, Cindy Platt, to try to
contact the Department. Ms. Platt was also unsuccessful in her attempts to
reach the Department. In mid-July Ms. Platt eventually spoke with Agent Causey
of SLED who gave her the Case Number of the violation. As soon as Ms. Sisk
received the information that Ms. Platt had gathered, she sent a Letter of
Protest in to the Department.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. Respondent
asserts that its failure to timely file a letter of protest is justified under
the facts of this case. Therefore, Respondent argues that it should be
permitted to contest the Department’s revocation of its permit. To the
contrary, the Department contends that Respondent’s failed to appeal within the
ninety-day (90) statutory period permitted and thus has no further right to
appeal the revocation of its permit.
2. S.C.
Code Ann. § 1-23-600 (Supp. 2005) grants jurisdiction to the Administrative Law
Court to hear contested cases under the APA. Additionally, S.C. Code Ann. §
61-2-260 (Supp. 2004) grants the ALC the responsibilities to determine
contested matters governing alcoholic beverages, beer and wine.
S.C. Code Ann. § 12-60-1330
(A) (Supp. 2005) provides that a party must exhaust his prehearing remedy before
he may seek a determination by an ALJ. More specifically, S.C. Code Ann. § 12-60-1330
(A) (3) (Supp. 2005) sets forth 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). In this case, Respondent alleges that there are numerous reasons which
explain her failure to timely file a Letter of Protest, including the theft of
the letter and her belief that the filing of the letter was a necessary
component to her filing a protest of her revocation.
“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, the Respondent failed to timely
file her letter of protest but nevertheless filed that letter before the
Department made a “final decision” in this matter. She also promptly sought
relief from the Department’s decision to sustain the revocation once it was
made. There are also excusable reasons for Respondent’s failure to meet the
filing deadline and there appears to be little, if any, prejudice to the
Department. Accordingly, I find Respondent established a good cause warranting
the remand of this case to the Department.
ORDER
Based upon the
foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that this case is Remanded to the Department to complete the exhaustion of
her prehearing remedies.
AND IT IS SO
ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
November 1, 2006
Columbia, South Carolina
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