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Administrative Law Court
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SC Administrative Law Court Decisions

Joseph Thomas, Jr., d/b/a Why Not Club 34 vs. SCDOR

South Carolina Department of Revenue

Joseph Thomas, Jr., )d/b/a Why Not Club 34

South Carolina Department of Revenue




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.




Administrative Law Judge

May 15, 1997

Columbia, South Carolina

Brown Bldg.






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