ORDERS:
ORDER
This matter is before this tribunal for a contested case hearing pursuant to S.C. Code Ann.
§§ 1-23-310 et seq. (Supp. 1996) and S.C. Code Ann. § 12-4-30 (D) (Supp. 1996) on alleged
administrative violations. The South Carolina Department of Revenue ("Department") alleges
that on February 27, 1996, Respondents violated S.C. Code Ann. § 12-21-2804 (A) (Supp. 1996).
Specifically, the Department alleges a violation of the "one separate employee" requirement of
27 S.C. Code Ann. Regs. 117-190 (Supp. 1996).
For alleged violations of S.C. Code Ann. § 12-21-2804 (A) (Supp. 1996), the Department
seeks a $5,000 fine against each Respondent, revocation of thirty (30) Class III video game
machine licenses located at Treasure Land Video on February 27, 1996, and preclusion of the use
of any Class III video game machine licenses at the business for a period of six months from the
date of revocation.
The hearing of this matter was held on September 23, 1997.
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 February 27, 1996, the Department's agent, William Byers, conducted an
inspection of the video gaming business, Treasure Land Video, located at 2110 Main Street,
Columbia, South Carolina.
2. At the time of the inspection, the facts relating to the "single place or premises"
requirement of the S.C. Code Ann § 12-21-2804(A)(Supp. 1996) and 27 S.C. Code Ann. Regs.
117-190 (Supp. 1996) were as follows:
a. The building contained six rooms with five video poker machines located in
each room.
b. The rooms were open and the machines were turned on and available for play.
c. Frank Jones was the only employee on the premises, and he was located in
the common area of the establishment.
CONCLUSIONS OF LAW AND ANALYSIS
1. Pursuant to S.C. Code Ann. § 12-4-30(D)(Supp. 1996) and S.C. Code Ann. §
1-23-320 (Supp. 1996), the Administrative Law Judge Division has jurisdiction to hear this matter.
2. Documentary evidence submitted by the Department's counsel was not properly
proffered.
Counsel had seven documents marked as exhibits, which Agent Byers identified. These
documents were:
1. Regulatory Violation and Proposed Assessment report against Treasure Land
Video;
2. Video Gaming Establishment Uniform Enforcement Procedures Compliance
Checklist, which identifies the licenses in question;
3. Diagram of the layout of Treasure Land Video;
4. Photographs of the exterior and interior of Treasure Land Video;
5. Final Agency Determination sustaining citation;
6. Respondent Great Game's application for licensure for Class III machines;
7. Respondent Edwin Alewine's business tax application.
However, counsel for the Department never proffered these exhibits into evidence. During
closing arguments, counsel for Respondents moved for dismissal. In doing so, he stated as a ground
in support of the motion that the Department had not offered the aforementioned documents into
evidence.
Counsel for the Department did not offer the documents at that time, but relied on an
erroneous interpretation of ALJD Rule 26, which provides:
Presumptive Admissibility of Documents. If at least twenty (20) days' written notice of the
intention to offer the following documents is given to every party, accompanied by a copy
of the document, the name of the author or maker of the document or other person who can
establish its admissibility in evidence, a party may offer in evidence, without foundation or
other proof: (1) photographs, maps, drawings, blue prints, weather reports, business records
and communications and the like . . ..
ALJD Rule 26 (A)(1) (1997) (emphasis added).
Because he prefiled these documents with no objection from opposing counsel, counsel for
the Department mistakenly believed that they were automatically offered and admitted into evidence
under Rule 26. Although this rule obviates the laying of a foundation or other proof for documents
prefiled in accordance with the rule, it does not eliminate the requirement that a party actually offer
the documents into evidence at the hearing.
As this case was the first of two consolidated cases heard on the same day involving the same
parties and counsels, counsel for the Department could have moved to reopen the first case to proffer
the documents, but failed to do so.
A well-based principle establishes that a judge may not consider evidence not a part of the
record. See S.C. Code Ann. § 1-23-320(g)(2) and (i). This rule protects the parties from bias by the
judge or jury through the rules of evidence and procedure. South Carolina cases have consistently
recognized that a court may not consider evidence not properly introduced in the record. See
Tuomey Reg'l Med. Ctr., Inc. v. McIntosh, 315 S.C. 189, 432 S.E.2d 485 (1993) (hospital failed to
proffer a further charge as to effect of the amended complaint); Gold Kist, Inc. v. Citizens and
Southern Nat'l Bank of South Carolina, 286 S.C. 272, 333 S.E.2d 67 (Ct. App. 1985) (failure to set
forth in the transcript a record of proffer of the evidence prevents consideration of error on appeal).
In Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40 (Ct. App. 1987), certain medical bills
were marked for identification during examination of a witness but not proffered into evidence.
The record on appeal indicates only that Bonaparte subsequently
attempted to introduce into evidence the hospital bill, which had
previously been marked for identification only. We cannot see from
this record any attempt to introduce into evidence the 1982
physicians' bills and prescription receipts. Bonaparte, as the
appellant on this issue, had the burden of furnishing a sufficient
record for this Court's review. . . . In the absence of such a record,
this issue cannot be considered on appeal.
Bonaparte v. Floyd, 291 S.C. 427, 444, 354 S.E.2d 40, 50 (Ct. App. 1987).
Applied to the present facts, case law dictates that the documents were never accepted as a
part of the record, and therefore cannot be used in the determination or consideration of the outcome.
Thus, the record, reflecting the Department's case, consists of the testimony of Agent Byers.
The failure to proffer the documents does not nullify the testimony of Agent Byers, whose testimony
was aided by the documents. The testimony is valid because it is based on the witness' own
experience. See Campbell v. Paschal, 290 S.C. 1, 11, 347 S.E.2d 892, 900 (Ct. App. 1986).
3. The Petitioner bears the burden of proof.
In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative
of an issue. 29 Am. Jur. 2d, Evidence § 127 (1994); Alex Sanders, et al. South Carolina Trial
Handbook, § 9:3 Party With Burden, Civil Cases (1994). The Department is the party asserting the
affirmative in this case, therefore, the Department must prove by a preponderance of the evidence
that Respondents violated S.C. Code Ann § 12-21-2804(A)(Supp. 1996) and 27 S.C. Code Ann.
Regs. 117-190 (Supp. 1996). The preponderance of the evidence "is evidence which is of the greater
weight or more convincing than the evidence which is offered in opposition to it . . . ." Black's Law
Dictionary 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when
considered and compared with that opposed to it, has more convincing force and produces in the
mind the belief that what is sought to be proved is more likely true than not true." Alex Sanders, et
al. South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier
v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).
4. The Petitioner failed to meet the burden of proof.
In light of the fact that the evidence in the record consists solely of the testimony of Agent
William Byers and is devoid of any documentation of the actual licenses involved in the violation,
the Petitioner has failed to meet the burden of proof in establishing all of the necessary elements to
sustain a violation. Therefore, the violation for which the Respondents were cited cannot be
sustained.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the violation for which the Respondents were cited must fail.
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1677
November 19, 1997
Columbia, South Carolina |
