South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Beverly H. Barton, Vegas Place I, Inc., et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Beverly H. Barton, Vegas Place I, Inc., Vegas Place II, Inc., Vegas Place III, Inc., Vegas Place IV, Inc.
 
DOCKET NUMBER:
96-ALJ-17-0529-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter is before me on Respondents' Motion for Relief from Judgment and Motion for Stay of Proceedings to Enforce Judgment. Respondents request relief from my Order dated October 14, 1997 pursuant to Rule 60(b), SCRCP. The Order revoked eighteen Class III video game machine licenses at Respondents' establishment at 801 South Kings Highway, Myrtle Beach, South Carolina for violation of S.C. Code Ann. § 12-21-2804(A) (Supp. 1997). The Order also fined $5,000 against Respondent Beverly Barton and prohibited the operation of any Class III video game machines at the location for six months. Respondents also request a stay of enforcement of the Order's six-month prohibition on the operation of Class III machines at the location. Petitioner South Carolina Department of Revenue ("DOR") opposes both motions.

MOTION FOR RELIEF FROM JUDGMENT

Respondents argue that the authority to prohibit the operation of any Class III machines at a location following revocation under S.C. Code Ann. § 12-21-2804(A) (Supp. 1997) is suspect and is currently being reviewed by the South Carolina Supreme Court in Department of Revenue v. Gateway Enterprises, Docket No. 96-ALJ-17-0272-CC. Respondents assert that they are entitled to relief under Rule 60(b)(5), SCRCP, which provides, in pertinent part, as follows:

... the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons:



(5) ... it is no longer equitable that the judgment should have prospective application.

Respondents' sole basis for asserting entitlement to relief under this provision is the pendency of the Gateway case before the South Carolina Supreme Court. South Carolina Code Ann. § 12-21-2804(A) (Supp. 1997) clearly requires a six-month prohibition on the operation of all machines in an establishment in which a license for any machine has been revoked. DOR has the authority to so enforce this prohibition until an appellate court of this State issues an opinion invalidating such an application of the statute. Therefore, Respondents' Rule 60(b) motion is denied as premature.

MOTION FOR STAY

Respondents request a stay of the October 14, 1997 Order pending the outcome of the Gateway case, which is scheduled for oral argument before the South Carolina Supreme Court on March 18, 1998. The six-month prohibition on operation of machines at Respondents' establishment will expire on April 12, 1998.

Upon review of Respondents' affidavit and consideration of the surrounding circumstances, I find that any potential harm to Respondents resulting from denial of a stay is outweighed by the duty to protect the public through continuing enforcement of the October 14, 1997 Order. Therefore, the motion for stay is denied.

AND IT IS SO ORDERED.

______________________________

ALISON RENEE LEE

Administrative Law Judge

March 18, 1998

Columbia, South Carolina


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