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. Edwin S. Alewine, d/b/a Treasure Land Video, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Edwin S. Alewine, d/b/a Treasure Land Video and Jay Martin, President, Great Games, Inc
 
DOCKET NUMBER:
96-ALJ-17-0479-CC

APPEARANCES:
Jeffrey M. Nelson
Attorney for Petitioner

Ward Bradley
Attorney for Respondents
 

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


Brown Bldg.

 

 

 

 

 

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