SC Administrative Law Court Decisions

A hearing was held in this matter on September 7, 1995, before the Administrative Law Judge Division. This Court issued an Order denying the Petitioner's application for a retail dealer's license on October 4, 1995. Thereafter, the Petitioner made a Motion for Reconsideration dated October 12, 1995. The Protestant made a Motion for Reconsideration and Leave to Present Additional Evidence dated October 31, 1995. I hereby vacate my decision in the Order dated October 4, 1995, and amend the Conclusions of Law and Findings of Fact as follows:

In his Motion for Reconsideration the Petitioner requests that this Court take judicial notice that the Town of Ward is a municipality. The Petitioner did not present any evidence to that effect, other than his contention that the assertion in the permit application that the proposed business was in the city limits is evidence that Ward is a municipality. Rather, the Petitioner simply made the request for judicial notice during his closing argument and again, in his Motion for Reconsideration. The Petitioner now supports his request for judicial notice with a letter from the Secretary of State's office asserting that Ward is indeed a municipality. The Protestant, who originally argued that Ward was not a municipality, does not now dispute the fact that Ward is a municipality.

South Carolina Rule of Evidence 201(b) provides that a court can take judicial notice of any fact subject to reasonable dispute that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Rule 201(f) further provides that this notice may be taken "at any stage of the proceeding." I take notice of the evidence presented by the Petitioner setting forth that Ward is a municipality and find that the Town of Ward is indeed a municipality. As set forth in the previous Order, no new license may be granted to an Applicant whose retail liquor business is within 300 feet of a playground if the business is situated in a municipality or 500 feet if the business is outside of a municipality. S.C. Code Ann. §61-3-440 (Supp. 1994). Since "Nan Edison" park is not located within 300 feet of the Petitioner's proposed location, the Petitioner is not statutorily precluded from receiving a retail dealer's license.

The Protestant requests Leave to Present Additional Evidence and has made a Motion for Reconsideration of the case based on that additional evidence. The evidence that the Protestant wishes to submit is that a caboose located within 200 feet of the Petitioner's proposed location is a playground. The Protestant contends that this evidence is admissible pursuant to S.C. Code Ann. §1-23-380(A)(4)(Supp. 1994). Section 380 (A)(4) empowers the Circuit Court hearing an appeal from a state agency to remand the case to the agency for the presentation of additional evidence if the Court finds the evidence is material and there is good reason for the failure of the party to present the evidence. To the contrary, the Petitioner contends that the South Carolina Civil Rules of Procedure are controlling in this case. Specifically, he argues that S.C.R.C.P. 59(b) and 60(b)(2) are the applicable rules to this controversy.

A party may move for Reconsideration of any matter before the Administrative Law Judge Division within ten (10) days of the final decision. ALJD Rule 29(c). Administrative Law Judge Division Rule 52 also sets forth that where practicable the South Carolina Rules of Civil Procedure may be used to resolve questions not addressed by the ALJD rules. Furthermore, South Carolina Rule of Civil Procedure 59(a)(2) provides that a new trial may be granted "in an action tried without a jury for any of the reasons for which rehearings have heretofore been granted in the courts of the state."⁽¹⁾ In Bennett v. City of Clemson 293 S.C. 64, 358 S.E. 2d 707 (1987), the South Carolina Supreme Court addressed the issue of whether an agency could entertain a Motion for Reconsideration when there was no enabling statute authorizing their reconsideration of the matter. The court, in upholding an agency's power to reconsider a case, held that "an agency's power to reconsider or rehear a case is not an arbitrary one, and such power should be exercised only where there is justification and good cause; i.e., newly discovered evidence, fraud, surprise, mistake, inadvertence or change in conditions." Id at 709. Under that authority, the Protestant would seek to introduce what they contend to be newly discovered evidence. A party seeking to introduce newly discovered evidence must demonstrate that

(1) . . . the evidence is such as will probably change the result if a new trial is granted, (2) . . . it has been discovered since the trial, (3) . . . it could not have been discovered before the trial, by the exercise of due diligence, (4) . . . it is material to the issue, and (5) . . . it is not merely cumulative or impeaching.

Bettis v. Busbee, 283 S.C. 502, 323 S.E.2d 536(Ct. App. 1984)[quoting Ortowski v.Ortowski 237 S.C. 499, 117 S.E.2d 860 (1961)]. The Protestant failed to prove that the evidence could not have been discovered by due diligence before the hearing and that the evidence was not cumulative to that offered at the hearing.

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 or Protestants, I make the following additional Findings of Fact by a preponderance of evidence:

1. The Protestants specifically presented evidence at the hearing concerning the location of the caboose and the fact that it was, indeed, a playground. Furthermore, the affidavit submitted by the Protestant is executed by Ward Mayor Leroy Smith. Mayor Smith jointly signed a letter protesting the granting of the liquor permit in this case. Therefore, the evidence the Protestant wishes to submit could have been discovered by the exercise of due diligence and would be cumulative to the evidence already presented at the hearing.

2. The proposed location is suitable for a retail liquor license with the restrictions set forth below.

Based upon the Findings of Fact and Conclusions of Law, in this Order and the Order dated October 4, 1995, in this matter, it is hereby:

ORDERED, that the retail dealer's license at the location of Highway 23 (adjacent to the "Cupboard") in Ward, South Carolina, be granted upon the satisfactory completion of the building and the payment of the required fee and costs by the Petitioner. It is further ordered that the Petitioner sign a written agreement with the South Carolina Department of Revenue and Taxation to adhere to the stipulations which are set forth below:

1. That the criminal conviction for sale of liquor to any individual below the age of twenty-one (21) shall result in the revocation of the dealer's license.

2. That the Petitioner shall make every effort to ensure that there is no loitering upon the premises of the proposed location.

AND IT IS SO ORDERED.

December 8, 1995

Columbia, South Carolina

1. South Carolina Rule of Civil Procedure 60(b)(2) is inapplicable to this case. Rule 60(b)(2) applies to circumstances after the 10-day period for making a Motion for Reconsideration. The Petitioner's Motion for Reconsideration, to which the Protestant responds, was made within 10 days of this Court's Order.