South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Andrews Amusement Company, Jimmy Helms, New Wave Enterprises, and Slots of Fun, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Andrews Amusement Company, Jimmy Helms, New Wave Enterprises, and Slots of Fun, Inc.
 
DOCKET NUMBER:
96-ALJ-17-0051-CC

APPEARANCES:
Carol I. McMahan
Attorney for Petitioner

James M. Griffin
Attorney for Respondent
Andrews Amusement Company

S. Jahue Moore
Attorney for Respondents
New Wave Enterprises, Jimmy Helms and
Slots of Fun, Inc.
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me for a hearing pursuant to S.C. Code Ann. §§ 1-23-310, etseq. (Supp. 1995) and S.C. Code Ann. § 12-4-30(D) (Supp. 1995) for alleged administrative violations. Petitioner alleges that on November 8, 1995, respondents violated S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Regs. 117 § 190 (Supp. 1995) by permitting licenses to be used for the operation of more than five (5) Class III video game machines at a single place or premises. The Department of Revenue alleges the structure which houses the various businesses constituted a single place or premises because each business did not have a separate employee within its respective area during business hours, in violation of 27 S.C. Code Regs. 117 § 190.

Respondents challenge the validity of 27 S.C. Code Regs. 117 § 190, and, contest the citations of the South Carolina Department of Revenue ("Department"). Respondents further argue that the $5,000 fine sought by the Department for these alleged violations is excessive and that the statute does not authorize revocation of their licenses for the alleged violations.

Petitioner seeks a $5,000 fine for the alleged violations of S.C. Code Ann. § 12-21-2804(A) (Supp. 1995), revocation of the twenty (20) video game machine licenses located at 1618 Charleston Highway, West Columbia, South Carolina, and preclusion of the issuance of video game machine licenses at the location for six (6) months from the date of license revocation. After notice to all parties, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina. The issues before this tribunal are (1) whether respondents violated S.C. Code Ann. § 12-21-2804(A) (Supp. 1995) and S.C. Code Regs. 117 § 190; and, (2) if so, what is the proper penalty for such violations. Based upon the following Findings of Fact and Conclusions of Law, this tribunal concludes that violations of S.C. Code Ann. § 12-21-2804(A) (Supp. 1995) occurred, as persons (businesses) utilized respondents' licenses in contravention of this subsection, and that such licenses shall be revoked. However, petitioner did not present sufficient evidence to warrant the imposition of a fine against respondents pursuant to S.C. Code Ann. § 12-21-2804(F) (Supp. 1995).

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. On November 8, 1995, the following video game machine businesses were operated by Slots of Fun, Inc. at 1618 Charleston Highway, West Columbia, South Carolina: Slots of Fun, Inc., d/b/a The Royal Flush; Slots of Fun, Inc., d/b/a Winners Circle; Slots of Fun, Inc., d/b/a Shot of Gold; and, Slots of Fun, Inc., d/b/a House of Cards. Slots of Fun, Inc. held retail licenses for each of these businesses. Hereinafter, for the ease of discussion, these businesses will be collectively referred to as Slots of Fun, Inc. when contextually appropriate.

2. Andrews Amusement Company, which is owned by Hugh Andrews, owns numerous Class III video game machines, and leases such machines to businesses throughout South Carolina.

3. Andrews Amusement Company leased two multi-player station Class III video game machines to Slots of Fun, Inc. for video game machine businesses conducted at 1618 Charleston Highway, West Columbia, South Carolina. One machine was a five station blackjack machine, and the other machine was a five station craps table.(1) Each of the multi-player station machines had five machine licenses. These machines were present and in use at 1618 Charleston Highway, West Columbia, South Carolina on November 8, 1995.

4. Andrews Amusement Company did not manage or operate the businesses at 1618 Charleston Highway, West Columbia, South Carolina in which the video game machines were located. Andrews Amusement Company leased these multi-player station video game machines to Slots of Fun, Inc. and received a percentage of the profits generated by its machines.

5. Andrews Amusement Company and Slots of Fun, Inc. entered into an oral agreement whereby Slots of Fun, Inc. agreed to comply with all rules and regulations governing the operation of video game machines.

6. Jimmy Helms, vice president of New Wave Enterprises, applied for ten (10) of the video game machine licenses on machines located at 1618 Charleston Highway, West Columbia, South Carolina. New Wave Enterprises owned these ten machines. No evidence was presented, however, to indicate any lease agreement, contractual, legal, or other relationship between New Wave Enterprises and Slots of Fun, Inc. On November 8, 1995, Mr. Helms was also vice president of Slots of Fun, Inc.

7. On November 8, 1995, Revenue Officers William Byars and Tina Lee conducted a routine inspection of the video game machine establishment, Slots of Fun, Inc., located at 1618 Charleston Highway, West Columbia, South Carolina. At the time of inspection, the facts relating to the "single place or premises" requirements of S.C. Code Ann. § 12-21-2804(A) (Supp. 1995) and S.C. Code Regs. 117 § 190 were as follows:

a. The structure in which Slots of Fun, Inc. operated the four video game machine businesses was a mall-type property. There were two entrances into the structure which opened into a hallway. The hallway led to a common area. There were eight rooms or business entities which opened into the common area. Units A, B, C, and D contained a total of twenty (20) Class III video game machines which displayed twenty (20) video game machine licenses. All twenty (20) video game machines were operational at the time of inspection: there were ten (10) single-station video game machines and two multi-player station video game machines. A sofa and television were located in Unit E. Vending machines were located in a separate unit and two additional units were used for restrooms and storage. Each of the eight rooms were accessible from the inside of the building through the common area.
b. Each of the four game rooms were surrounded by exterior walls or fire walls without doors or openings leading to another area where video game machines were located.
c. Each of the four video game rooms contained licensed video game machines.
d. Each of the four video game rooms had separate electric meters.
e. Each of the video game rooms had separate sales tax licenses.
f. Each entity was open for business. The outside doors of the structure were unlocked; the lights were on in the common area; doors to each entity containing Class III video game machines were open; and, the lights were on inside each of these rooms. The video game machines in the four businesses were turned on and available for play.
g. There was one payout counter which was located in the common area.
h. At the time of inspection, there was one employee, Eugene McDonald, on the premises who was located behind the counter in the common area. There were no employees located in any of the entities containing video game machines. During the inspection of the premises by the revenue agents, Jimmy Helms arrived.
i. There was a customer present in Shot of Gold and another customer present in Winners Circle, two of the four rooms containing video game machines.

8. The following Class III video game machine licenses were displayed on the machines located in the four video game rooms:

Name of Business License Number Machine Owner
The Royal Flush 46517 New Wave Enterprises
The Royal Flush 46519 New Wave Enterprises
The Royal Flush 46521 New Wave Enterprises
The Royal Flush 46518 New Wave Enterprises
The Royal Flush 46520 New Wave Enterprises
House of Cards 043782 New Wave Enterprises
House of Cards 043784 New Wave Enterprises
House of Cards 043785 New Wave Enterprises
House of Cards 043786 New Wave Enterprises
House of Cards 043783 New Wave Enterprises


Multi-player Station, Blackjack Machine

Winners Circle 041211 Andrews Amusement Company
Winners Circle 041246 Andrews Amusement Company
Winners Circle 041219 Andrews Amusement Company
Winners Circle 041218 Andrews Amusement Company
Winners Circle 041217 Andrews Amusement Company


Multi-player Station, Craps Table

Shot of Gold 040701 Andrews Amusement Company
Shot of Gold 041212 Andrews Amusement Company
Shot of Gold 041213 Andrews Amusement Company
Shot of Gold 041214 Andrews Amusement Company
Shot of Gold 041215 Andrews Amusement Company


The multi-player station machines noted in Winners Circle and Shot of Gold were licensed with a separate license for each station. There were five licenses per multi-player station machine. One machine license, license # 40701, was purchased prior to July 1, 1995.

9. As a result of the inspection, the Department issued a citation against respondent New Wave Enterprises and a citation against respondent Andrews Amusement Company. The Department seeks a $5,000 fine for the alleged violation of S.C. Code Ann. § 12-21-2804(A) (Supp. 1995), revocation of twenty (20) video game machine licenses located at 1618 Charleston Highway, West Columbia, South Carolina on November 8, 1995, and preclusion of the issuance of video game machine licenses at the location for six (6) months from the date of license revocation.

10. Revenue Officer William Byars testified that on November 8, 1995, he signed the violation reports and hand-delivered them to Jimmy Helms at 1618 Charleston Highway, Columbia, South Carolina. Mr. Helms signed the violation report issued to New Wave Enterprises. Slots of Fun was written on the line indicated for the name of the firm. Jimmy Helms signature was written on the line indicated for the representative of the firm to sign. However, Mr. Helms refused to sign the violation report issued to Andrews Amusement Company.

11. No violation reports were issued against Slots of Fun, Inc. or its related video game businesses.

12. At the hearing of this matter, Mr. Byars testified that he faxed the citation for Andrews Amusement Company to John Rampey, collection supervisor, in the Spartanburg Revenue Office to be hand delivered to Andrews Amusement Company.

13. Mr. Byars further testified that he was informed by Mr. Helms that normally there are two (2) employees present at the location in question on each of the three shifts during which the businesses operate. Furthermore, he testified that Mr. Helms stated he was aware of the regulation requiring each video game machine business to have at least one separate employee on the premises during business hours. However, according to Mr. Byars, Mr. Helms indicated that this regulation was unconstitutional, and he would not comply with the regulation until instructed to do so by a judge.

CONCLUSIONS OF LAW AND DISCUSSION

A. Jurisdiction

1. Pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1995) and S.C. Code Ann. § 1-23-320 (Supp.1995), the Administrative Law Judge Division has jurisdiction to hear this matter. Respondents New Wave Enterprises and Andrews Amusement Company contend that they were not properly served with the violation reports issued by the Department on November 8, 1995. It is unclear from the facts of this case whether the violation report issued to Andrews Amusement Company was actually delivered to the company. However, the facts do indicate the violation report was hand delivered to New Wave Enterprises, and received by its vice president, Jimmy Helms. Nonetheless, both respondents were afforded an opportunity for a hearing after notice of not less than thirty (30) days of the Department's allegations in this matter, pursuant to S.C. Code Ann. § 1-23-310(A) (Supp. 1995). Accordingly, respondents' due process rights were not violated. See Art. I § 22, S.C. Const.

B. Violation

2. Respondents New Wave Enterprises and Andrews Amusement Company are licensees of video game machines licensed under S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1995).

3. The Video Game Machines Act ("Act"), which regulates video game machine activity in South Carolina, was enacted in 1993 and became effective on July 1, 1993. This Act is found at S.C. Code Ann. § 12-21-2770, et seq. (Supp. 1995). The purpose of the Video Game Machines Act is to regulate the video game machines industry and to prevent large-scale casino type gambling operations in the State of South Carolina. See 1994 Op. Atty. Gen. No. 94-21 at 51; Reyelt v. S.C. Tax Comm'n, 6:93-1491-3 and 6:93-1493-3 (U.S. Dist. Ct., Greenville, S.C., Nov. 15, 1993).

4. Petitioner alleges that on November 8, 1995, respondents violated S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Regs. 117 § 190 (Supp. 1995) by permitting licenses to be used for the operation of more than five (5) Class III video game machines at a single place or premises. Section 12-21-2804(A) provides:

No person shall apply for, receive, maintain, or permit to be used, and the commission shall not allow to be maintained, permits or licenses for the operation of more than eight machines authorized under Section 12-21-2720(A)(3) at a single place or premises for the period beginning July 1, 1993, and ending July 1, 1994. After July 1, 1994, the commission may not issue nor authorize to be maintained any licenses or permits for more than five machines authorized under S.C. Code Ann. § 12-21-2720(A) (3) at a single place or premises . . . . (emphasis added).

5. On June 23, 1995, regulations were promulgated which further clarify the provisions of the Video Game Machines Act. Specifically, 27 S.C. Code Regs. 117 § 190 was promulgated to clarify the meaning of the phrase "single place or premises" as set forth in Section 12-21-2804(A). This regulation, effective June 23, 1995, provides in relevant part:

A "single place" or "premises" means a structure surrounded by exterior walls or fire walls consistent with the requirements of the applicable building code (or where no building code is applicable, a one hour rated firewall), provided such exterior walls and fire walls may not have any windows, doors or other openings leading to another area where video game machines are located.
If a structure surrounded by exterior walls has two or more areas where video game machines are located, each surrounded by exterior walls or fire walls as defined and required above, the Department must review all the facts and circumstances to determine if each area in reality constitutes a single place or premise for video game machines.
In determining whether each entity is in fact a single place or premises, the Department of Revenue will consider the following factors:
(1) Does each entity or business have a separate electric utility meter?
(2) Does each entity or business have at least one separate employee on the premises during business hours?
(3) Does each entity or business have a separate local business license where required?
(4) Does each entity or business have a separate state sales tax license?
A positive answer to these four questions is required for each area to be considered a "single place or premise" for purposes of the Video Game Machines Act.

S.C. Code Regs. 117 § 190 (1995) (emphasis added).

6. The primary issue before this tribunal is whether any person "permitted" the use of permits or licenses for the operation of more than five Class III video game machines at a single place or premises, in violation of S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Regs. 117 § 190.

7. It is well established that in interpreting a statute, the court's primary function is to ascertain the intention of the legislature. State v. Blackmon, 304 S.C. 270, S.E.2d 403 S.E.2d 660 (1991); First Savings Bank, Inc. v. Gold Coast Assoc., 301 S.C. 158, 390 S.E.2d 486 (Ct. App. 1990); State v. Harris, 268 S.C. 117, 232 S.E.2d 231 (1977). In ascertaining the intent of the legislature, a court should not focus on any single section or provision but should consider the language of the statute as a whole. Creech v. S.C. Public Service Authority, 200 S.C. 127, 20 S.E.2d 645 (1942). Furthermore, in construing statutes, the language used should be given its plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. Bryant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988); Home Health Service v. S.C. Tax Com'n, 312 S.C. 324, 440 S.E.2d 375 (1994). Where terms of a statute are clear and unambiguous, they must be applied according to their literal meaning. Medlock v. Ford F-150 Pick Up, et al., 308 S.C. 68, 417 S.E.2d 85 (1992); Green v. Zimmerman, 269 S.C. 535, 238 S.E.2d 323 (1977).

It should be emphasized that S. C. Code Ann. § 12-21-2804(A) clearly precludes any person, not just the licensees, from permitting the use of more than five Class III video game machines in a single place or premises. The term person is not defined in the Act, but its common and ordinary meaning clearly encompasses an individual, a business entity, as well as, a licensee or machine owner. See Black's Law Dictionary, 1142 (6th ed. 1995). Further, Section 12-21-2804(A) mandates that the Department revoke the licenses of the machines located in an establishment which fails to meet the requirements of this section. Hence, even if licensees, Andrews Amusement and New Wave Enterprises, were not directly involved in permitting their licenses to be used in the violation of this statute, the use of their licenses by Slots of Fun, Inc. in contravention of the statute mandates revocation of the licenses so used. Such an interpretation is consistent with the plain language of the statute. However, Andrews Amusement Company and New Wave Enterprises argue that their lack of knowledge of the improper use of their licenses precludes revocation of the licenses. This argument is not supported by the law. The existence or nonexistence of knowledge on behalf of licensees under the facts of this case would not compel a result other than the revocation of the licenses. See Mickey Stacks, d/b/a Red Dot Amusement Co. v. S.C. Dep't of Revenue and Taxation, Court of Common Pleas, County of Richland, 96-CP-40-0239 (April 20, 1995).

8. The facts of this case clearly indicate that there were five (5) operational Class III video game machines located in each of the four businesses during business hours. More specifically, on the date of inspection the facts were as follows: the outside doors to the structure were unlocked; the lights were on in the common area; the doors to each room containing video game machines were open; the lights were on inside each of these rooms; and, the video game machines in the four businesses were turned on and available for play. Further, there was only one employee on the entire premises, who was located in the common area. There were no employees in any of the businesses in which the video game machines were located. Furthermore, Mr. Helms, an officer of Slots of Fun, Inc. and New Wave Enterprises indicated to Revenue Officers Byars and Lee that normally there were two employees located on the premises for each shift.

9. The business owner, Slots of Fun, Inc., clearly permitted licenses to be used for the operation of more than five Class III video game machines in a single place or premises. As stated above, whether an establishment is being operated as a "single place or premises" is determined by evaluating the facts against the factors set forth in Regulation 117 § 190.

10. With respect to the "employee" requirement, Regulation 117 § 190 requires that each entity or business have at least one separate employee on the premises during business hours for a business to comply with the "single place or premises" requirements of Section 12-21-2804(A). If a game room containing operational Class III video game machines is accessible to customers and no employee is present in that room, the room is being operated in violation of Section 12-21-2804(A). An employee working in a common area or anywhere else outside the game rooms is not considered to be "on the premises" of the game room. See S.C. Dep't of Revenue and Taxation v. Mickey Stacks, 95-ALJ-17-0742-CC (March 8, 1996). In the instant case, the uncontroverted evidence indicates that there was only one employee in the common area at the time of the inspection, and no employees were working in the game rooms. Furthermore, the evidence indicates that the businesses were open for business at the time of inspection. Thus, I conclude that the businesses located at 1618 Charleston Highway, Columbia, South Carolina have violated Section 12-21-2804(A) by permitting licenses to be used for the operation of more than five Class III video game machines in a single place or premises. Consequently, respondents' licenses are subject to revocation because Slots of Fun, Inc. utilized the video game machines, on which the licenses were displayed, in a manner which contravened S.C. Code Ann. § 12-21-2804(A).

C. Constitutional Challenge of Regulation

11. Respondents challenge the validity of 27 S.C. Code Regs. 117 § 190. Pursuant to S.C. Code Ann. § 12-21-2798 (Supp. 1995), the Department is authorized to promulgate regulations to assist in the administration and enforcement of the Video Game Machines Act.

12. To determine if a regulation is reasonable, inquiry must be made as to whether the regulation has a rational basis or is rationally related to the end sought to be achieved. Hunter & Walden Co. v. S.C. State Licensing Bd. for Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978). That is, a regulation is valid as long as it is reasonably related to the purpose of the enabling legislation. Young v. SCDHPT, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985). However, a regulation which is beyond the authorization of the agency's enabling legislation or which materially alters or adds to the law is invalid. Society of Professional Journalists v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943). Regulation 117 § 190 does not lessen or enlarge the powers of the Department, but is reasonable for the enforcement of the provisions of S.C. Code Ann. § 12-21-2804(A). The requirements of Regulation 117 § 190, including the requirement that each business have an employee on the premises at all times during business hours, do not constitute an impermissible alteration or addition to Section 12-21-2804(A). Instead, the regulation clarifies the phrase "single place or premises" in order to allow for uniform enforcement of the law. Furthermore, the regulation is reasonably related to and is designed to further the purpose of the Video Game Machines Act.

D. Penalty

13. S.C. Code Ann. § 12-21-2804(A) (Supp. 1995) expressly authorizes the "commission" [Department] to enforce the provisions of this section and also authorizes the Department to revoke licenses utilized in a fashion that fails to comply with the provisions of this section.

14. S.C. Code Ann. § 12-21-2804(A) (Supp.1995) provides that the penalty for exceeding the maximum number of video gaming machines permitted in a single place or premises requires the revocation of the licenses of machines located in the establishment.

15. S.C. Code Ann. § 12-21-2804(F) (Supp. 1995) provides that a person who violates S.C. Code Ann. § 12-21-2804(A) (Supp. 1995) is subject to a fine of up to $5,000. The Department has not cited the person(s) who directly utilized the video game machines in violation of S.C. Code Ann. § 12-21-2804(A), namely Slots of Fun, Inc. See Mickey Stacks, d/b/a Red Dot Amusement Co. v. S.C. Dep't of Revenue and Taxation, Court of Common Pleas, County of Richland, 96-CP-40-0239 at 8-9 (April 20, 1995). Under Section 12-21-2804(A), a license on a video poker machine must be revoked by virtue of its misuse under the Act, regardless if the actual violator is the licensee, machine owner, or lessee. However, a monetary fine under § 12-21-2804(F) may only be imposed on the actual person directly involved in the violation of Section 12-21-2804(A). In this case, that is Slots of Fun, Inc. It should be reiterated that Slots of Fun, Inc. was not cited for a violation. There was no concrete evidence presented at the hearing that Andrews Amusement Company or New Wave Enterprises was subject to the imposition of a fine under Section 12-21-2804(F).

Since Jimmy Helms served as an officer in both New Wave Enterprises and Slots of Fun, Inc., in reaching the conclusion stated above with regard to New Wave Enterprises, this tribunal had to address the underlying issue of whether New Wave Enterprises was culpable because of this common office holder and the theory of imputable knowledge between corporations with a common officer. As it relates specifically to respondent New Wave Enterprises, the Department failed to present sufficient evidence to establish that Jimmy Helms was acting as a representative of New Wave Enterprises on the date of inspection or that knowledge possessed by him could be imputed to New Wave Enterprises.

Generally, knowledge of or notice to an agent or officer of a corporation acquired in the ordinary discharge of his duties for the corporation is imputed to the corporation.

See 19 C.J.S. Corporations § 632 at 282 (1990), see also Whitten v. Bob King's AMC/Jeep, Inc., 231 S.E.2d 891 (N.C. 1977); Employers' Fire Ins. Co. v. Pennsylvania Millers Mut. Ins. Co., 157 S.E.2d 807, appeal after remand 165 S.E.2d 309 (Ga. Ct. App.1967).

. . . Knowledge acquired by an officer or agent of one corporation while acting as an officer or agent of another corporation is not imputable to the first corporation, and where a person who is an officer of two corporations represents one of them in a transaction between them, his knowledge will not be imputed to the corporation which he does not represent.
However, such common officer's knowledge of the affairs of one corporation will be imputed to the other when such knowledge is present in his mind and memory at the time he engages in a transaction on behalf of such other corporation, or when such knowledge comes to him while acting for such other corporation in his official capacity, or while acting as an agent of such corporation, and within the scope of his authority, and under the circumstances it is his duty to communicate it to the latter, and it is not against his interest so to do, provided, in the latter instance, he is not acting as the sole representative of the corporation.
The mere fact that two corporations which have dealings with each other have one or more officers in common does not impute his or their knowledge of the affairs of one of the corporations to other corporation, and it has been held that the knowledge of one corporation is not the knowledge of other, even though all the officers of both corporations are the same, where their interests are in fact adverse.
On the other hand, notice to the officers of one corporation has been held imputable to another corporation having one or more officers in common where the two corporations are closely related, or are close corporations, or where the same person directs the activities of both, or all the officers of both corporations are the same, or both corporations have a number of officers in common are engaged in a conspiracy to defraud a third person.

See 19 C.J.S. Corporations § 637 at 287-288 (1990).

The issue of knowledge or the imputation thereof was not developed by the Department through the proffer of credible evidence. Neither articles of incorporation, evidence on shareholder or ownership interests, evidence on management responsibilities, direct testimony, or other pertinent documentation was presented at the hearing to set forth the nexus between Jimmy Helms, New Wave Enterprises, and Slots of Fun, Inc. This tribunal is aware that Jimmy Helms is vice president of New Wave Enterprises and vice president of Slots of Fun, Inc., but without more, the interrelatedness of these fiduciary relationships can not be properly analyzed. This tribunal can not draw any inferences based on the evidence presented, as such findings would rest on conjecture, guesswork, supposition or suspicion. 32 C.J.S. Evidence § 1042 (1964); S.C. Code Ann. § 1-23-320(i) (Supp. 1995).

Therefore, the imposition of the $5,000 fine against both respondents must fail for the foregoing reasons.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that a violation of S.C. Code Ann. § 12-21-2804(A) (Supp. 1995) mandates the revocation of the machine licenses in question. The Department has not cited the person who perpetrated the violation of S.C. Code Ann. § 12-21-2804(A), namely the businesses in question. Accordingly, the imposition of a $5,000 fine against respondents must fail.

IT IS FURTHER ORDERED that the Department shall revoke the video game machine licenses located at 1618 Charleston Highway, West Columbia, South Carolina on November 8, 1995 and no video game machine licenses shall be issued at 1618 Charleston Highway, West Columbia, South Carolina for six months from the date of the revocation of the licenses referenced herein.

IT IS FURTHER ORDERED that the Department shall suspend the monetary fine.

IT IS FURTHER ORDERED that respondents' motions to dismiss the citations issued by the department are hereby denied. Further, according to ALJD Rule 29(B), issues raised in the proceedings, but not addressed in the Order are deemed denied.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



December 18, 1996

Columbia, South Carolina





_______________

Fn.1. Prior to July 1, 1995, these multi-player station machines were licensed by the Department of Revenue as one coin-operated device and counted as one machine for purposes of determining the maximum number allowed to be operated at a single place or premises under S.C. Code Ann. § 12-21-2804. On July 1, 1995, the General Assembly amended Section 12-21-2720 of the Video Game Machines Act to require that additional licenses be purchased for each separate player station on these type of multi-player station machines. Also, the July 1, 1995 amendments required that each player station on the multi-player station machines be counted as a separate machine for purposes of determining the number of machines allowed to be operated at a single place or premises pursuant to S.C. Code Ann. § 12-21-2804.


Brown Bldg.

 

 

 

 

 

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