ORDERS:
ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION
This matter comes before me on Petitioner's Motion for Reconsideration of the Order and
Decision in the above-captioned matter pursuant to ALJD Rule 29(C). For the reasons stated below,
the Petitioner's motion is DENIED.
"In cases permitting an agency to reconsider its decision, courts have emphasized that an
agency's power to reconsider or rehear 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,
66-67, 358 S.E.2d 707, 708-09 (1987) (citing 2 Am.Jur.2d, Administrative Law, § 522 et seq. (1962
& Supp.1986)). Petitioner's application for an on-premise beer and wine permit and a sale and
consumption (minibottle) license was denied on a number of grounds, at least one of which, standing
alone, would serve as sufficient grounds for denial. The Petitioner failed to establish the location
is suitable for either an on-premises beer and wine permit or a minibottle license, given its close
proximity to residences in a rural area. A party who fails to carry their burden of proof cannot
prevail in their action. Alex Sanders, Deborah Neese & John S. Nichols, Trial Handbook for South
Carolina Lawyers, § 9:1 (Law. Co-op. 1995).
Petitioner takes exception with the Division's consideration of a petition filed with the
Department of Revenue in protest of the application. The petition was admitted into evidence as part
of the Department's investigative file. Any objection to the admissibility of the DOR file or the
petition should have been contemporaneously raised. "[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 (M-156-90) v. State Bd. of Med. Examiners, ___ S.C. ___, 473
S.E.2d 870, 880 (Ct. App. 1996) (citing Patterson v. Reid, 318 S.C. 183, 456 S.E.2d 436, 437 (Ct.
App. 1995) and Anderson Memorial Hosp., Inc., v. Hagen, 313 S.C. 497, 498, 443 S.E.2d 399, 400
(Ct. App. 1994)). Cf. Rule 59(a), SCRCP. Petitioner does not present any legal rationale that would
warrant reconsideration on that ground. In Finding of Fact 15, the Division found that at least one
allegation contained in the petition was not supported by evidence. As to the remaining allegations,
the testimony of protestors served as the basis for the finding that the location was not suitable. The
reference to the petition was simply to indicate the basis for the protests by the community that
necessitated a contested case hearing.
Petitioner contends that the Division erred in considering evidence of prior business' patrons.
While a number of the protests initially referred to events occurring under prior ownership, the
testimony was also clear that the same problems were occurring under the current ownership. The
residents in the area who testified indicated the past problems experienced and testified that some
of the same problems were occurring especially after the club advertised and business increased.
Petitioner asserts that he "has established a kitchen and a separate and distinct area used
solely for cooking, preparing, serving, storing and disposal of solid food for meals including addition
of refrigerator, freezer and stove." The Order adequately addresses this issue and Petitioner has not
presented any new evidence or a legal basis to reconsider the decision on this issue.
The Petitioner has not demonstrated justification or good cause to reconsider the provisions
of the Order. Therefore, Petitioner's motion is DENIED.
AND SO IT IS ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
May 15, 1997
Columbia, South Carolina |
