SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD) upon Petitioner's Motion for Reconsideration of the Division's Order dated December 27, 1995 (incorporated herein by reference). After a contested case hearing on October 9, 1995, the case against the Respondent was dismissed and Petitioner was ordered to issue Respondent a refund. The case was dismissed because Petitioner failed to provide the Division with sufficient evidence that Respondent violated S.C. Code Ann. §12-21-2720(C) (Supp. 1995). Essentially, Petitioner failed to meet its burden in seeking a retroactive application of §12-21-2720(C) to Respondent. Petitioner seeks reconsideration of the Order dismissing the case against Respondent on two grounds. First, Petitioner argues that the Division's Order "avoids" the intent of the General Assembly to limit the number of video game machines within a single place or premises, a conclusion reached after reading §12-21-2720(C) in pari materia with §12-21-2804(A) (Supp. 1995). Second, Petitioner asserts that the language of §12-21-2720(C) does not provide an exception for licenses currently in existence, and that the Division's Order reads such an exception into the statute. Both parties filed briefs on the Motion, and oral arguments were heard on the matter at the ALJD offices in Columbia, South Carolina, on March 6, 1996.

Petitioner first asserts that §12-21-2720(C), if read in pari materia with S.C. Code Ann. §12-21-2804(A)(Supp. 1995) (after July 1, 1994, Respondent may not issue licenses for more than five machines at a single place or premises), dictates a clear legislative intent to limit the number of machines (whether they be individual video game machines, or stations at a multi-player machine) within a single place or premise. Petitioner argues that this Division must consider the detrimental effect its December 27, 1995 Order will have on the enforcement of §12-21-2804(A), considering that it allows Respondent to operate its multi-player machine utilizing the one license it purchased prior to June 1, 1995. In other words, Petitioner argues that the 1995 amendment to §12-21-2720(C) was enacted with specific legislative intent to require operators of multi-player machines (who purchased their licenses prior to June 1, 1995) to purchase additional licenses for these machines, thereby limiting the total number of additional machines that could be housed on the premises.

Petitioner's first ground for reconsideration fails for two reasons. First and foremost, this issue was not before the Division at the contested case hearing, and as a consequence, is not a part of the justiciable controversy between the parties. At the October 9, 1995 hearing, counsel for Petitioner stated:

The issue that I see before the Court today is the time that an amendment to the Video Games Machine Act became effective, the amendment to section 12-21-2720(C) and whether a machine licensed prior to the effective date of this act is grandfathered in until that license expires as far as the requirement for license -- a license on each station of a multi-station machine and also the requirement, which is not really before this court today, but this Court's ruling will have an impact, and that is, will this machine count as one for purposes of counting machines that are allowed in a single place or premises or will it count for each player station.

(Tr. at 3-4) (emphasis added).

The raising of this issue contemplates a violation of the §12-21-2804(A) five machine limit; however, the only issue before me at the contested case hearing was the licensing of each station at a multi-player video game machine.

Even if Petitioner's first ground was properly before me at the contested case hearing, it fails to warrant a different conclusion because the law mandates that the amendment to §12-21-2720(C) be applied prospectively rather than retroactively. If applied as dictated by Petitioner, Respondent would be forced to purchase four additional licenses for its multi-player machine, after obtaining the original license with a clear understanding that it would be sufficient for all stations of the machine for the complete two year period for which it was purchased. For the details of why Petitioner's desired application of the amendment was not intended by the legislature, see my order of December 27, 1995, incorporated herein by reference.

Petitioner's second ground for reconsideration is that my Order creates an exception to §12-21-2720(C) for licenses currently in existence, a construction not intended by the General Assembly. Contrary to what is argued by Petitioner, rules of statutory construction provide that newly enacted pronouncements cannot be applied retroactively unless the intent for such an application is so clearly spelled out by the General Assembly as to leave no room for reasonable doubt. Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123 (1978). As a consequence, no exception needed to be created for §12-21-2720(C). Because the amendment did not clearly spell out that the new law applied to existing licensees, the previously existing biennial licenses purchased for the multi-player machines prior to June 1, 1995, remained in effect for the full length of time for which they were purchased. For further details regarding why my decision does not create an unintended exception to §12-21-2720(C) , see my order of December 27, 1995, incorporated herein by reference.

The arguments of Petitioner only revisit the issues addressed in my previous Order or raise issues not before me at the contested case hearing. Of the arguments properly before me upon Petitioner's Motion for Reconsideration, none sway me to modify or reverse my Decision. Accordingly,

IT IS HEREBY ORDERED that the Motion is denied and my previous Order remains in effect.

AND IT IS SO ORDERED.

__________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

March 12, 1996