ORDERS:
ORDER AND DECISION
This matter is before the Administrative Law Judge Division (ALJD) upon Applicant's
Motion for Reconsideration of the Court's Order dated March 2, 1995 (incorporated herein by
reference). At the hearing, Applicant also moved to Alter or Amend the previous Order. By
Order dated March 2, 1995, Applicant's application for a off-premises beer and wine permit was
granted and application for a retail liquor license was denied. The retail liquor license was denied
because Applicant was found to presently have an interest in three retail liquor stores, the
maximum allowed by S.C. Code Ann. § 61-3-461 (Supp. 1994). Applicant seeks reconsideration
of the decision to deny the retail liquor license on the ground that this Court failed to consider the
Applicant's offer to demand payment and satisfaction of a promissory note prior to the issuance of
the requested license. In addition, Applicant offers further stipulations in an attempt to satisfy
concerns of the Court with respect to his involvement with a retail liquor store located in
Summerville. Alternatively, Applicant moves to amend the March 2, 1995 Order by adding a
stipulation made at the original hearing and by striking references to Applicant's suitability to be
licensed included in the Conclusions of Law and in the Discussion.
Respondent opposes the Motion for Reconsideration but consents to Applicant's
alternative Motion to Alter or Amend. A hearing was conducted to hear arguments on the
motions on April 10, 1995. The Motion for Reconsideration is denied. The Motion to Alter or
Amend the Order is granted. Except as amended by this Order, the terms of the March 2, 1995
Order of this Court remain in effect.
MOTION FOR RECONSIDERATION
Effective May 3, 1995, Rule 29(C) of the Rules of Procedure for the ALJD will allow for
a Motion for Reconsideration. The ALJD Temporary Operating Procedures do not provide for a
Motion for Reconsideration. Applicant's motion is similar in nature to motions seeking relief from
an Order under Rules 52, 59, or 60 of the South Carolina Rules of Civil Procedure. Pursuant to
an Administrative Order of the ALJD dated June 20, 1994, upon good cause shown, a party may
be permitted to use any rule of the South Carolina Rules of Civil Procedure in any case. Rule 8
of the ALJD Temporary Operating Procedures allows an administrative law judge to exercise
broad discretion in allowing and ruling on motions during the course of a contested case
proceeding. Accordingly, pursuant to the above cited authority, and Applicant's demonstration of
good cause, the motion is proper and has been given due consideration.
The Court denied Applicant's retail liquor license application on the ground that his
involvement with Miller Enterprises of Summerville, Inc. (hereinafter Miller Enterprises) and
other retail outlets not licensed in his name constituted an interest in three or more retail liquor
stores, meeting or exceeding the maximum number allowed by S.C. Code Ann. § 61-3-461 (Supp.
1994). Applicant's Motion for Reconsideration is based upon the position that the March 2, 1995
Order or this Court failed to consider his offer to demand payment and satisfaction of a
promissory note in the amount of $242,000 from Miller Enterprises prior to the issuance of the
requested license. Furthermore, Applicant's motion includes the offer of four stipulations "to
satisfy the concerns expressed by the Court" regarding Applicant's involvement with Miller
Enterprises. Applicant offers to stipulate that he will discontinue providing bookkeeping,
consulting, and pricing services to Miller Enterprises, and that he will discontinue providing
products from any of his other licensed locations to Miller Enterprises without prior approval
from the Department of Revenue.
This Court's Order of March 2, 1995 does not provide a basis for reconsideration. The
granting of a rehearing (or a motion for reconsideration) is not a matter of right, but is a question
addressed to the discretion of the administrative officer or agency. 73A C.J.S. Public
Administrative Law and Procedure § 161 (1983). An "... agency's (or an ALJ's) power to rehear
or reconsider a case is not an arbitrary one, and such power should be exercised only when there
is justification and good cause; i.e., newly discovered evidence, fraud, surprise, mistake,
inadvertence or change in conditions." Bennett v. City of Clemson, 293 S.C. 64, 358 S.E.2d 707
(1987). Consequently, an "...agency (or an ALJ) may not reconsider a decision on the ground of
a mere change of mind, without an intervening change in conditions or other different factors."
C.J.S. supra, § 161.
Applicant has failed to establish the justification and good cause necessary for
reconsideration to be granted. The offer of stipulation made at the initial hearing was considered
in rendering the decision to deny the retail liquor license, although no specific finding of fact
regarding the proposed stipulation was included in the Order. Applicant's subsequent offers of
stipulation discontinuing association with Miller Enterprises also fail to warrant reconsideration of
the March 2, 1995 Order. They concern matters known to the applicant at the time of the initial
hearing and do not constitute newly discovered evidence, fraud, surprise, mistake, inadvertence or
change in conditions. Consideration of these additional stipulations would constitute "two bites at
the apple." "Fundamental fairness would seem to indicate that there should be one basic fact-finding process, and that review thereafter should be on the record made in that fact-finding
process or procedure." Milliken & Co. v. S.C. Dept. of Labor, 275 S.C. 264, 269 S.E.2d 763
(1980). If Applicant had wanted these stipulations considered in the Court's March 2, 1995
Order, he should have made them at the original hearing. There must be finality in the
adjudication process.
MOTION TO ALTER OR AMEND THE COURT'S ORDER
In the alternative, Applicant seeks to amend the March 2, 1995 Order by inclusion of a
finding regarding Applicant's proposed stipulation made at the original hearing and by striking
references to Applicant's unsuitability included in the Conclusions of Law and in the Discussion.
Pursuant to Rule 8 of the ALJD Temporary Operating Procedures, the above cited Administrative
Order of the ALJD dated June 20, 1994, and Rule 52 (b) SCRCP, and without objection, this
Court's March 2, 1995 Order is amended as follows:
1. Finding of Fact # 12 is amended by adding: "Applicant stipulated at the hearing
that he would demand full payment of the note as a precondition to the issuance of the license if
ordered by this Court."
2. Conclusion of Law # 19 is stricken in its entirety.
3. In the Discussion at page 9, the first sentence of the second paragraph is amended
to read: "For the foregoing reasons expressed in the Findings of Fact, Conclusions of Law, and
Discussion provided herein, Applicant is not eligible to hold the retail liquor license applied for."
For the foregoing reasons, Applicant's Motion for Reconsideration is denied and his
Motion to Alter or Amend is granted. Except as amended by this Order, the terms of the March
2, 1995 Order of this Court remain in effect.
AND IT IS SO ORDERED.
______________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 21, 1995
Columbia, South Carolina |
