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machines in an establishment in which a license for any machine has been revoked.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 |
