ORDERS:
ORDER AND DECISION
STATEMENT OF CASE
This matter comes before me upon request for a Hearing by the Respondent after being cited for
violating S.C. Code Ann. § 12-21-2804 (B)(Supp. 1994). The South Carolina Department of
Revenue and Taxation (DOR) contends that the Respondents unlawfully advertised the playing of
video poker.
A Hearing was held before the Administrative Law Judge Division in Columbia, South Carolina,
on June 6, 1995.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, taking into consideration the burden of persuasion by the Petitioner and the
Respondent, I make the following Findings of Fact by a preponderance of evidence:
1. Chevy Chevront operates Aces & Eights located at 3901 N. Kings Hwy., Myrtle Beach, South
Carolina. Aces & Eights is the incorporated name of the Respondent's business.
2. The Respondent provides for the play of video machines licensed under S.C. Ann.
§12-21-2720(A)(3) at his location.
3. A citation was issued to Aces & Eights for violating Section 12-21-2804(B).
4. On the exterior wall of Aces & Eights are two cherries. Inside one cherry is the depiction of an
ace of spades playing card and inside the other cherry is the depiction of an eight of diamonds
playing card. The name of the business "Aces & Eights" is also displayed on the outside of the
Respondent's location. Additionally, the interior wall displays three plums and three cherries.
5. The Respondent's display of his corporate name and the cherry symbols located on his
businesses' wall visibly advertises to the public that video poker machines are located within his
place of business. Therefore, the sign and symbols call public attention to the location and tend to
arouse the public's desire to patronize the establishment to play the Respondent's video poker
games.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division has jurisdiction to hear this matter pursuant to S.C.
Code Ann. § 12-4-30 (D) (Supp. 1994) and S.C. Code Ann. § 1-23-320 (Supp. 1994).
2. S.C. Code Ann. § 12-21-2804 (B) states that no person who maintains a place or premise for
the operation of machines licensed under Section 12-21-2720(A)(3) may advertise in any manner
for the playing of machines. S.C. Code Ann. § 12-21-2804 (B) (Supp. 1994).
3. Machines licensed under Section 12-21-2720(A)(3) include video game with free play feature
operated by a slot in which a coin or thing of value is deposited. S.C. Code Ann. § 12-21-2720
(Supp. 1994).
4. A person who violates the advertising prohibition is subject to a fine of up to five thousand
dollars. S.C. Code Ann. § 12-21-2804(F) (Supp. 1994).
5. The Video Game Machines Act ("Act") does not define the term "advertise." "In construing
statutes, words should be given their usual and ordinary meaning. . ." Windham v. Pace et al. 192
S.C. 271, 6 S.E.2d 270,275 (1939). Thus, the meaning of "advertise" may be derived from the
term as defined in the dictionary. "Advertise" means (1) "to make something known"; (2) "to
announce publicly especially by a printed notice or a broadcast"; (3)"to call public attention to
especially by emphasizing desirable qualities so as to arouse a desire to buy or patronize...."
Merriam Webster's Collegiate Dictionary (10th ed. 1993).
6. The Respondent contends that Section 12-21-2804(B) is unconstitutionally vague and is a
violation of the First Amendment. In Reyelt et al. v, South Carolina Tax Commission , C. A.No.
6-93-1491-3 (D. S.C. Nov. 15,1993) the South Carolina Federal District court upheld S.C. Code
Ann. § 12-21-2804(B). The Court found that its restriction on the playing and advertising of
video poker machines was not unconstitutionally vague and did not violate the First Amendment
of the Constitution.
7. The Respondent specifically argues that the advertising restrictions of Section 12-21-2804(A)
unconstitutionally prohibit the display of his corporate name. The effect of Respondent's publicly
displaying his corporate name outside this business is the advertisement for the playing of video
poker machines in contravention of the S.C. Code Ann. § 12-21-2804(B) (Supp. 1994). The Act
clearly prohibits advertising in any manner. While Respondent may have a right to use his legal
corporate name, he does not have the right to advertise the playing of video poker machines
through use of his corporate name, in view of the state's substantial interest in regulating the video
poker machine industry. If such a right existed, it would render Section 12-21-2804(B)
meaningless.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is therefore,
ORDERED, that Chevy Chevront d/b/a Aces & Eights is fined $200 for displaying the cherry
symbols on the businesses' walls in violation of the Video Game Machines Act. This fine shall be
paid to the Department of Revenue and Taxation within 30 days of the date of this Order.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson, III
Administrative Law Judge
August 30, 1995
Columbia, South Carolina |
