South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Cynthia R. McDonald and James R. McDonald

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Cynthia R. McDonald and James R. McDonald
 
DOCKET NUMBER:
97-ALJ-17-0689-CC

APPEARANCES:
For the Petitioner, Carol I. McMahan, Esquire

For the Respondent, Richard A. Harpootlian, Esquire and Robert G. Rikard, Esquire
 

ORDERS:

ORDER DENYING MOTION FOR RECONSIDERATION

I. Introduction

On December 15, 1998, the Respondents moved for a reconsideration of the final order in this matter. The final order imposed a six-month prohibition on the use of Class III video games at locations owned by the McDonalds. The motion asks that the final order be amended to impose a six-month revocation on the machines, not on the location. The McDonalds argue the position stated in the final order should be reconsidered in light of Department of Revenue v. Andrews, 97-ALJ-17-0643-CC (February 25, 1998), and Department of Revenue v. JJ's of Garden City, Inc., 97-ALJ-17-0767-CC (March 19, 1998).

II. Analysis


ALJD Rule 29(D) (April 29, 1998) provides that

[a]ny party may move for reconsideration of a final decision of an administrative law judge in a contested case, subject to the grounds for relief set forth in Rule 60(B) (1 through 5), SCRCP . . . . The filing of a motion for reconsideration is not a prerequisite to filing a notice of appeal from a final decision of an administrative law judge.

Under Rule 60(B), SCRCP, a party may be granted relief from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud, misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

The power to reconsider must not be used arbitrarily but must be exercised only when justified by a demonstration of good cause, such as that shown by 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); Rule 60(B), SCRCP.

Here, the grounds for reconsideration alleged by the McDonalds do not warrant reconsideration. Rather, in a valid settlement agreement, the McDonalds agreed to the six-month prohibition on licensing at the subject locations with that agreement being the result of a bargained for position. The decisions in Department of Revenue v. Andrews, 97-ALJ-17-0643-CC (February 25, 1998), and Department of Revenue v. JJ's of Garden City, Inc., 97-ALJ-17-0767-CC (March 19, 1998) are no basis for reconsideration. Those decisions were litigated positions, not agreed consent orders. Thus, the McDonalds fail to establish a basis for relief from the Final Order and Decision.

III. Order


IT IS THEREFORE ORDERED THAT the McDonalds' Motion for Reconsideration of December 15, 1998 be denied.

AND IT IS SO ORDERED.







RAY N. STEVENS

Administrative Law Judge

December 22, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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