South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Chevy Cheveront and Aces & Eights, Inc. d/b/a Aces & Eights

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Chevy Cheveront and Aces & Eights, Inc. d/b/a Aces & Eights
 
DOCKET NUMBER:
95-ALJ-17-0186-CC

APPEARANCES:
For the Petitioner: William L. Todd, Esquire

For the Respondent: James H. Harrison, Esquire
 

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


Brown Bldg.

 

 

 

 

 

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