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.
After scheduling the hearing, the Department and J. L. Martin Jr. reached a Settlement
Agreement. I approved that agreement on August 31, 1995. Therefore, this Order does not
address the citation against J. L. Martin Jr. A Hearing concerning the citation against Sherry
Martin was held before the Administrative Law Judge Division in Columbia, South Carolina, on
July 26, 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. Notice of the time, date, place and subject matter of the Hearing was given to the Petitioner
and the Respondents. Sherry Martin was notified at the address listed on her Business Tax
Application (the same address as her business). The notices were returned to our Division by the
U.S. Postal Service with the notation that Ms. Martin had moved and left no forwarding address.
She did not notify our Division of a new address, nor did she make a request not to appear at the
hearing. Therefore, Ms. Martin failed to appear at the hearing without the consent of the
Administrative Law Judge.
2. Sherry Martin operates Little Vegas located at 805 Huger Street, Columbia, South Carolina.
3. The Respondent provides for the play of video machines licensed under S.C. Ann. §
12-21-2720(A)(3)(Supp. 1994) at his location.
4. A citation was issued to Little Vegas for violating Section 12-21-2804(B).
5. The Respondent's exterior walls advertise her business as "Little Vegas." See, Petitioner's
Exhibit 1.
6. The Respondent's display of her business name visibly advertises to the public that video poker
machines are located within her place of business. Therefore, the signs call public attention to the
location and arouses the public's desire to patronize the establishment and 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.A. 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.A. 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. Administrative Law Judge Division Rule 23 provides "A default occurs when a party fails to
plead or otherwise prosecute or defend, fails to appear at appear at a hearing without proper
consent of the judge or fails to comply with any interlocutory order of the administrative law
judge." I find the Respondent in default for failing to appear at the hearing without consent.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is therefore,
ORDERED, that Sherry Martin d/b/a Little Vegas is fined $500 for violating the advertising
provisions 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
Columbia, South Carolina
September 1, 1995 |
