ORDERS:
ORDER ON PETITIONER'S MOTION FOR RECONSIDERATION
This matter is before the Administrative Law Judge Division (Division) pursuant to
Petitioner's Motion for Reconsideration of the Division's Order dated July 25, 1996 (incorporated
herein by reference). After a hearing on June 13, 1996, Petitioner's request that his application for
an off-premises beer and wine permit be processed was denied. The request was denied for two
reasons. First, it was determined that the proposed location is the same location previously
determined to be unsuitable by The Honorable John D. Geathers in Renaud v. S.C. Dep't of Revenue
and Taxation, 95-ALJ-0209-CC. Second, it was determined that no material change had occurred
at the location since the rendering of Judge Geathers Order on June 6, 1996.
Petitioner's motion does not provide a basis for reconsideration of my July 25, 1996 Order.
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). After a careful examination of the eleven issues raised
by Petitioner in the motion, none of them raise the justification and good cause necessary for the
granting of the motion.
The majority of Petitioner's arguments simply attempt to reargue the case on the merits. They
raise issues of legal interpretation, not new evidence, fraud, surprise, mistake, inadvertence or change
in conditions.
Petitioner's eighth ground, that reconsideration should be granted because the Division erred
in reading a letter from The Honorable Larry Koon, is manifestly without merit. The letter was
neither made a part of the record nor was considered in any way. The letter, dated June 18, 1996 and
filed with the Division on June 19, 1996, was received after the hearing was conducted and was
forwarded to counsel for both parties on June 24, 1996, well before the final Order in this case was
issued. Petitioner's counsel sent the Division a letter dated July 23, 1996. In it, Petitioner's counsel
stressed that Rep. Koon's letter was hearsay and that it should not be considered in my decision. By
not admitting the letter into the record, and therefore not mentioning it in the Order, I intended to
clearly communicate that the letter was not considered. While Petitioner's counsel asked that the
letter not be considered, he did not ask that the record be reopened to examine Rep. Koon on his
assertions. Because he failed to do so, Petitioner's counsel waived any opportunity to seek
reconsideration on this issue. 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. Patterson
v. Reid, ___ S.C. ___, 456 S.E.2d 436 (Ct. App. 1995).
Likewise, I have neither considered, nor included in the record, the letter from Lexington
County School District One Board of Trustees member James A. Compton, referred to in Petitioner's
Motion for Reconsideration and subsequently filed with the Division. Accordingly,
IT IS HEREBY ORDERED that Petitioner's Motion for Reconsideration be and hereby is
denied.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August 22, 1996 |
