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Administrative Law Court
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SC Administrative Law Court Decisions

AK&W, Inc. vs. SCDOR

South Carolina Department of Revenue

AK&W, Inc.
1404 ½ Gervais Street, Columbia, SC

South Carolina Department of Revenue

Trinity Episcopal Cathedral




By a Final Order and Decision dated April 19, 2002, this tribunal found that Petitioner's establishment at 1404 ½ Gervais Street, Columbia, South Carolina is a suitable location for the issuance of an on-premises beer and wine permit and restaurant minibottle license. Intervenor Trinity Episcopal Cathedral ("Trinity") now moves this tribunal to reconsider or, in the alternative, to stay that Order. For the reasons set forth below, Trinity's motion is hereby denied.

Trinity casts its motion as a motion for reconsideration pursuant to ALJD Rule 29D on the ground of "mistake." (1) Specifically, Trinity contends that the Final Order "was based on one or more clearly evident 'mistakes' on the part of SLED [the South Carolina Law Enforcement Division] and respectfully requests reconsideration of that Order and rejection of the SLED report." (Intervenor's Mot. for Recons. and for a Stay at 2.) However, this motion requesting this tribunal to re-evaluate the measurements gathered by SLED is more properly understood as a motion to alter or amend a judgment pursuant to ALJD Rule 68 and Rule 59(e), SCRCP, rather than as a motion for reconsideration based on mistake pursuant to ALJD Rule 29D and Rule 60(b)(1), SCRCP. "The purpose of Rule 59(e), SCRCP, to alter or amend the judgment is to request the trial judge to 'reconsider matters properly encompassed in a decision on the merits,'" Arnold v. State, 309 S.C. 157, 172, 420 S.E.2d 834, 842 (1992) (citations omitted), whereas a motion for relief based on "mistake" pursuant to Rule 60(b)(1), SCRCP, is aimed at correcting mistakes made by the court or by counsel, not at re-weighing potentially inaccurate testimony or evidence. See Branson v. Prins Ins., Inc., 79 F.R.D. 662, 664 (D.C.S.D. 1978) (holding that Fed. R. Civ. P. 60(b)(1), which is identical to Rule 60(b)(1), SCRCP, "contemplates a mistake made by the court or counsel"); 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2858 (2d ed. 1995). Therefore, Intervenor Trinity's motion will be construed as a motion to alter or amend the Final Order and Decision in this case.

As grounds for its motion, Trinity contends that the measurements made by SLED of the distance between Petitioner's establishment and Trinity's cathedral were inaccurately made and are in conflict with earlier measurements made by SLED. Trinity further contends that, as this tribunal relied upon those allegedly inaccurate measurements in determining that Petitioner's business is not within the statutorily-prescribed minimum distance between a licensed establishment and a church (Final Order and Decision of Apr. 19, 2002, at 7 n.1), it should reconsider its final decision regarding the suitability of Petitioner's location for the requested permit and license. However, this argument must fail. First, Trinity's contestation of SLED's measurements is untimely. As a general rule, "a party cannot use a motion to reconsider, alter, or amend a judgment to present an issue that could have been raised prior to the judgment but was not so raised." Anonymous v. State Bd. of Med. Exam'rs, 323 S.C. 260, 279, 473 S.E.2d 870, 880 (Ct. App. 1996), rev'd on other grounds, 329 S.C. 371, 496 S.E.2d 17 (1998); see also Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) ("A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgement but did not."); C.A.H. v. L.H., 315 S.C. 389, 392, 434 S.E.2d 268, 270 (1993) (same). Here, Trinity had a full and fair opportunity to challenge the SLED measurements relied upon by this tribunal before the issuance of the Final Order and Decision. See Order of Mar. 29, 2002, at 3 (specifically granting Petitioner and Intervenor the opportunity to respond to the SLED measurements). (2) However, Trinity did not raise its challenge to the SLED measurements at that time, and only now raises the issue for the first time in its motion for reconsideration. Trinity failed to voice its objection to the SLED measurements at the appropriate time, and it cannot now seek to annunciate that objection in a motion to reconsider.

Second, even if this tribunal were to ignore the untimeliness of Trinity's challenge to the SLED measurements, Trinity's motion would not be successful. In its motion for reconsideration, Trinity does not allege an error of law or some procedural impropriety that would warrant a reconsideration of the final decision in this matter. Rather, Trinity essentially asks this tribunal to re-weigh evidence its has already fully considered. Such a re-weighing of the evidence is not necessary or appropriate. This case, like any case that is not purely a matter of law, contains disputed facts and conflicting evidence. And, as the Final Order and Decision makes clear, this tribunal thoroughly weighed the conflicting evidence presented in this matter and determined that the SLED measurements are the more credible measurements. See Final Order and Decision of Apr. 19, 2002, at 3-4, 6-7. (3) Trinity has not presented sufficient grounds to justify a reconsideration of the evidentiary findings made in this matter, and this tribunal will not, therefore, undertake such a reconsideration. See, e.g., 2 Am. Jur. 2d Administrative Law § 393 (1994) ("A rehearing petition may not be used as a vehicle . . . to reargue issues determined by the challenged opinion.").

Further, this tribunal does not find that a stay of its final order pursuant to ALJD Rule 29E is warranted in this case.

For the reasons set forth above,

IT IS THEREFORE ORDERED that Intervenor Trinity Episcopal Cathedral's Motion for Reconsideration and for a Stay is respectfully DENIED.




Administrative Law Judge

May 17, 2002

Columbia, South Carolina

1. ALJD Rule 29D explicitly incorporates the grounds for relief set forth in Rule 60(b), SCRCP, as the grounds for reconsideration of a final decision in a contested case before the Administrative Law Judge Division (ALJD or "Division"). Rule 60(b)(1), SCRCP, provides that a court may relieve a party from a final judgment, order, or proceeding based upon "mistake, inadvertence, surprise, or excusable neglect."

2. Moreover, it should be noted that the issue of the distance between Petitioner's business and the entrance to Trinity's parking lot on the corner of Gervais and Marion streets-the distance that is the subject of the SLED measurements-was not raised by Trinity or any other party at the hearing of this matter. See Order of Mar. 13, 2002, at 2. Rather, this tribunal, on its own motion, ordered that the record in this matter be reopened in the interests of fairness and justice to determine whether the entrance to Petitioner's business was within 300 feet of an entrance to the grounds in use by Trinity. Id. at 2-3.

3. Further, the only SLED measurements considered by this tribunal as credible evidence of the distance between Petitioner's business and Trinity's grounds were those taken by Agent Sonya Ashford and submitted on April 8, 2002. See Final Order and Decision of Apr. 19, 2002, at 4, 7 n.1. The earlier SLED measurements referred to by Trinity in its motion for reconsideration were only contained in the representations of counsel for the Department of Revenue and thus did not constitute credible, competent evidence of the distance in question. See Order of Mar. 29, 2002. Those measurements do not, therefore, serve to discredit Agent Ashford's measurements.

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