ORDERS:
ORDER GRANTING SUMMARY JUDGMENT
STATEMENT OF THE CASE
This is a contested case involving the South Carolina Department of Revenue
(“Department”)’s final decision imposing a $500 fine and permanently revoking Respondent’s sale
and consumption (“minibottle”) license and beer and wine permit. A hearing was held before the
undersigned on May 4, 2004 at the offices of the Administrative Law Court (“ALC”) in Columbia,
South Carolina. At the hearing, the Department moved for summary judgment on the ground that
Respondent failed to exhaust its administrative remedies. For the following reasons, the
Department’s motion is granted.
FINDINGS OF FACT
Having carefully considered all evidence and arguments presented at the hearing of this
matter, I make the following findings of fact by a preponderance of the evidence:
1.Notice of the time, date, place, and subject matter of the hearing was given to all
parties in a timely manner.
2.Respondent, the Diamond Private Club, Inc., holds a minibottle license (License No.
32017273-PSC) and a beer and wine permit (Permit No. 32017273-PBW) for a private club located
at 608 Carolina Avenue, Atlantic Beach, South Carolina.
3.On or about May 23, 2003, Respondent was charged with an administrative violation
for violating Regulation 7-17(J) by permitting the consumption of liquor by a nonmember.
4.On July 2, 2003, the Department served a written Notice of Assessment and
Revocation (“Notice”) on Respondent, notifying Respondent that it intended to impose a $500 fine
and revoke Respondent’s minibottle license and beer and wine permit as the result of the
administrative violation. The Notice stated that Respondent had 90 days to either pay the proposed
assessment and surrender its permit and license or submit a written protest to the proposed
assessment and revocation.
5.On or about August 14, 2003, Respondent submitted to the Department check number
02496 in the amount of $500, payable to the Department. Respondent included a copy of the first
page of the Notice with the check. Respondent did not submit a written protest or indicate in any
other way that it objected to the Department’s July 2, 2003 Notice of the $500 fine and the
revocation of the permit and license. Respondent did not surrender its permit and license, and the
Department did not cash Respondent’s check. Respondent took no action to protest the Notice
within the 90 days following the Department’s issuance of the Notice.
6.On February 23, 2004, well after the 90-day period following the issuance of the
Notice elapsed, the Department sent Respondent its Final Determination imposing a monetary fine
of $500 and permanently revoking Respondent’s minibottle license and beer and wine permit. The
Department stated in its Final Determination that Respondent had failed to exercise its right to
protest the assessment and revocation by failing to submit a written protest to the Department within
90 days of the Department’s Notice. The Department informed Respondent that it could request a
hearing before the ALC if it disagreed with the Department’s findings in the Final Determination.
Respondent subsequently filed a request for a contested case hearing before the ALC regarding the
Department’s Final Determination.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2003) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260
(Supp. 2003) grants the ALJD the authority to hear contested case hearings in matters governing
alcoholic beverages, beer, and wine.
2.The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages. S.C. Code Ann. § 61-2-20 (Supp. 2003).
3.A license or permit to sell alcohol is neither a contract nor a property right. Rather,
it is merely a license to do what otherwise would be unlawful to do, and is to be enjoyed only so long
as the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax
Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, there are legal consequences for a
licensee’s noncompliance with the alcoholic beverage laws of this State.
4.The procedure for challenging an initial notice of revocation or assessment is set forth
at S.C. Code Ann. § 12-60-1310 (2000). This section provides that:
If a division of the department denies a person a license that the department
administers, or sends by first class mail or delivers a notice to the license holder that
the division of the department shall suspend, cancel, or revoke a license administered
by the department, then the person can appeal by filing a written protest with the
department within ninety days of the denial, or proposed suspension, cancellation,
or 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) (2000).
This section operates as a statute of limitations. See S.C. Dep’t of Revenue v. Roller, Inc.,
Docket No. 02-ALJ-17-0552-CC (S.C. Admin. Law Judge Div., July 7, 2003). If the Department
does not extend the time for filing a protest before the period set forth in S.C. Code Ann. § 12-60-1310(A) has expired, then any protest filed outside of the 90 days is time-barred. Id.
5.The Department did not extend the time for filing a protest in this case. Hence,
Respondent was required to protest the Department’s determination to fine it $500 and revoke its
permit and license within 90 days of the Notice, or on or before September 30, 2003. Respondent
did not do so. Accordingly, Respondent did not exhaust its pre-hearing administrative remedy.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Department’s Motion for Summary Judgment is
granted and the Department’s Final Determination imposing a $500 fine and revoking Respondent’s
minibottle license and beer and wine permit is upheld.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
May 4, 2004
Columbia, South Carolina |
