ORDERS:
ORDER AND DECISION
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 June 13, 1996, Respondents violated S.C. Code Ann. § 12-21-2804(A) by applying for, receiving,
maintaining, or permitting to be used permits for the operation of more than five machines
authorized under S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1996) at a single place or premises.
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 June 13, 1996, and preclusion of the use of any Class III
video game machine licenses at these businesses.
The hearing of this matter was held on September 23, 1997. The issues before this tribunal
are (1) whether Respondents violated S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs.
117-190 (Supp. 1996) and, (2) if so, what are the proper penalties for such violations. Based upon
the following Findings of Fact and Conclusions of Law, this tribunal concludes that Edwin Alewine
and Tina Alewine violated S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190
(Supp. 1996) by utilizing video game machine licenses in contravention of these laws.
Consequently, the licenses shall be revoked. No video game machine licenses shall be utilized in
Treasure Land Video for a period of six months from the date of revocation of the licenses. Further,
the Department shall impose a fine of $5,000 each against Respondents Edwin Alewine and Tina
Alewine.
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 June 13, 1996, the Department's agents W.E. Riley and D.F. Frick conducted an
inspection of the video gaming businesses located at 2110 Main Street, Columbia, South Carolina.
After completion of the inspection on that day, the agents issued Respondents an administrative
citation for a violation of the "single place or premises" requirement of S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190 (Supp. 1996).
2. At the time of the inspection, the facts relating to the "single place or premises"
requirement of the S.C. Code Ann. § 12-21-2904(A) and 27 S.C. Regs 117-190 (Supp. 1996) were
as follows:
a. Treasure Land Video was a mall-type structure consisting of six separate
rooms containing video gaming machines.
b. There was a main entrance into the structure that opened into a common area.
c. There was one payout counter located in the common area.
d. All of the businesses were open and contained operational Class III video
game machines which were available for play. In fact, three of the rooms had
patrons playing the machines.
e. There were no employees present in any of the rooms as designated in
Petitioner's Exhibit # 3. Two employees were, however, situated in the
common area at the payout counter. Edwin Alewine and Tina Alewine were
in the office.
f. Each of the video gaming businesses had separate sales tax licenses. See
Petitioner's Exhibit # 2.
3. On June 13, 1996, the following Class III licenses were affixed to the machines in the
rooms as designated on Petitioner's Exhibit #s 2 and 3 and held by the corresponding
licensee:
Business Entity |
License Number |
Licensee |
Room A |
044914 |
Edwin Alewine |
|
3810323 |
Great Games, Inc. |
|
3810324 |
Great Games, Inc. |
|
044605 |
Great Games, Inc. |
|
044623 |
Great Games, Inc. |
Room B |
3810328 |
Great Games, Inc. |
|
3810329 |
Great Games, Inc. |
|
3810325 |
Great Games, Inc. |
|
3810326 |
Great Games, Inc. |
|
3810327 |
Great Games, Inc. |
Room C |
3810336 |
Great Games, Inc. |
|
044627 |
Great Games, Inc. |
|
044617 |
Great Games, Inc. |
|
3810330 |
Great Games, Inc. |
|
045506 |
Tina Alewine |
Room D |
045513 |
Tina Alewine |
|
044597 |
Great Games, Inc. |
|
044634 |
Great Games, Inc. |
|
044635 |
Great Games, Inc. |
|
044656 |
Great Games, Inc. |
Room E |
045063 |
Edwin Alewine |
|
044739 |
Edwin Alewine |
|
045517 |
Tina Alewine |
|
045508 |
Tina Alewine |
|
045521 |
Tina Alewine |
Room F |
045504 |
Tina Alewine |
|
045516 |
Tina Alewine |
|
045505 |
Tina Alewine |
|
044740 |
Tina Alewine |
|
043921 |
Tina Alewine |
4. Edwin Alewine holds the retail licenses for the businesses referenced above.
5. No sufficient evidence was proffered by the Department to establish that Respondent
Great Games, Inc. managed or operated the video game businesses located at Treasure Land Video.
Further, insufficient evidence was presented to establish that Great Games, Inc. applied for, received,
maintained, or permitted to be used Class III video game machine licenses in contravention of § 12-21-2804(A).
6. 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 June 13, 1996, and
preclusion of the use of any Class III video game machine licenses at this location for a period of six
months from the date of revocation.
CONCLUSIONS OF LAW AND ANALYSIS
A. Jurisdiction
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.
B. Burden of Proof
2. 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 failed to have a separate employee in each of their respective businesses in
violation of 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." Sanders, supra, § 9:5 Quantum
of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).
C. Single Place or Premises Violation
3. Respondents Great Games, Inc., Edwin Alewine, and Tina Alewine are the licensees
of the Class III video game machines licensed under S.C. Code Ann. § 12-21-2720(A)(3) (Supp.
1996), which are the subject of this case. Both Respondents Tina Alewine and Edwin Alewine were
present at the location at the time of inspection.
4. Respondent Edwin Alewine is the operator of the Class III video game machines
located in Treasure Land Video, which are the subject of this case.
5. 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 codified
at S.C. Code Ann. §§ 12-21-2770, et seq. (Supp. 1996). The purpose of the 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 Reyelt v. South Carolina Tax Comm'n, Nos. 6:93-1491-3 and 6:93-1493-3 (D.S.C. Nov. 15, 1993); See also Op. Att'y. Gen 94-21 at 51 (1994).
6. Petitioner alleges that on June 13, 1996, Respondents violated S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190 (Supp. 1996) by applying for, receiving,
maintaining, or permitting to be used permits for the operation of more than five machines
authorized under S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1996) 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).
7. On June 23, 1995, regulations were promulgated which further clarify the provisions
of the Video Game Machines Act, and, as such, these regulations have the force and effect of law.
See Young v. South Carolina Dep't of Highways and Pub. Trans., 287 S.C. 108, 336 S.E.2d 879
(1985); Faile v. South Carolina Employment Sec. Comm'n, 267 S.C. 536, 230 S.E.2d 219 (1976).
Specifically, Regulation 117-190 was promulgated to clarify the meaning of the phrase "single place
or premises" as set forth in § 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 firewalls 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 firewalls
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 firewalls 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.
27 S.C. Code Ann. Regs. 117-190 (Supp. 1996) (emphasis added).
8. The first issue before this tribunal is whether any person applied for, received,
maintained, or permitted to be used permits for the operation of more than five machines authorized
under S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1996) at a single place or premises, in violation
of S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190 (Supp. 1996).
9. 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, 403 S.E.2d 660 (1991);
First South Savings Bank, Inc. v. Gold Coast Assocs., 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. South Carolina Pub. Serv. Auth., 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. Home Health Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375
(1994); Bryant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988). Where terms of a statute
are clear and unambiguous, they must be applied according to their literal meaning. Medlock v.
1985 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). "A statute should be so construed that no word, clause, sentence,
provision or part shall be rendered surplusage, or superfluous . . . ." 82 C.J.S. Statutes § 346;
Savannah Bank & Trust Co. of Savannah v. Shuman, 250 S.C. 344, 157 S.E.2d 864 (1967). This
tribunal has no legislative powers, and the justice or wisdom of statutes rests exclusively with the
General Assembly. See Smith v. Wallace, 295 S.C. 448, 369 S.E.2d 657 (Ct. App. 1988).
It should be emphasized that S.C. Code Ann. § 12-21-2804(A) (Supp. 1996) clearly precludes
any person, not just the licensees, from applying for, receiving, maintaining, or permitting to be used
permits for the operation 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 or a business entity as well as a licensee or machine owner. See Black's
Law Dictionary 1142 (6th ed. 1995). Further, § 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, § 12-21-2804(A) (Supp. 1996) mandates revocation of the licenses so used, even
if the licensee was not directly involved in applying for, receiving, maintaining, or permitting its
licenses to be used in contravention of the statute. Such an interpretation is consistent with the plain
language of the statute.
10. The facts of this case clearly indicate that there were at least thirty operational Class
III video game machines located in the various rooms of Treasure Land Video. Each room contained
five operational licensed Class III video game machines. The evidence further indicates that all
rooms were open for business at the time of inspection. However, no employees were situated in
any of these rooms during the inspection.
11. There is sufficient evidence to establish that Edwin Alewine and Tina Alewine clearly
permitted licenses to be used in contravention of the statute, S.C. Code Ann. § 12-21-2804(A), which
prohibits the operation of more than five Class III video game machines within a single place or
premises. However, the Department did not present sufficient evidence to establish that Respondent
Great Games, Inc. applied for, received, maintained, or permitted to be used permits for the operation
of more than five machines authorized under S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1996) at
a single place or premises, in violation of S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann.
Regs. 117-190 (Supp. 1996).
Under § 12-21-2804(A), a license on a video game 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 § 12-21-2804(A). When applying for a license, a licensee violates the
statute if he applies for a license to be used in the operation of more than five machines at a single
place or premises to violate the statute. The statute does not state, as the Department would like this
tribunal to construe it, that a person who applies for a license which is subsequently used for the
operation of more than five machines at a single place or premises is in violation of the statute. In
the instant case, even if Respondents Edwin Alewine and Tina Alewine, did not violate the statute
when they applied for licenses, they unequivocally violated it in the day to day operation and
maintenance of the businesses. The Department has not established, however, that Respondent Great
Games violated the statute when applying for licenses or was involved in the operation and
maintenance of the businesses.
12. Whether an establishment is being operated as a "single place or premises" is
determined by evaluating the facts against the standard set forth in Regulation 117-190. With respect
to the "employee" requirement, Regulation 117-190 requires that each entity or business have at least
one separate employee on the premises of that respective entity or business during business hours
to comply with the "single place or premises" requirements of § 12-21-2804(A).(1)
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 § 12-21-2804(A). An employee working in a common area or anywhere else outside the game room is
not considered to be "on the premises" of the game room. See South Carolina Dep't of Revenue and
Taxation v. Stacks, 95-ALJ-17-0742-CC (March 8, 1996). This application is consistent with the
intent of the General Assembly to prevent large-scale casino type gambling. See Singletary v. South
Carolina Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct. App. 1994) citing State v. Thrift, 312
S.C. 282, 440 S.E.2d 341 (1994) (legislative intent must prevail if it can be reasonably discovered
and language of a statute must be construed in the light of the intended purpose of the statute).
13. The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern
Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who
observes a witness, is in the better position to judge the witness's demeanor and veracity and evaluate
their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v.
Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v. Patterson, 278 S.C. 481, 299
S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973).
14. Respondents Edwin Alewine and Tina Alewine have failed to meet the "one separate
employee" requirement set forth in Regulation 117-190 with regard to the rooms in Treasure Land
Video. Failing to satisfy one requirement is a sufficient ground constituting a violation of the single
place or premises requirements of S.C. Code Ann. § 12-21-2804(A) (Supp. 1996). Therefore, I
conclude that the businesses at Treasure Land Video, 2110 Main Street, Columbia South Carolina,
were operated in violation of S.C. Code Ann. § 12-21-2804(A). Consequently, all thirty (30) of the
Class III video game machine licenses at Treasure Land Video are subject to revocation.
D. Penalty
15. S.C. Code Ann. § 12-21-2804(A) (Supp. 1996) expressly authorizes the
"commission" [Department] to enforce the provisions of this section and also requires the
Department to revoke licenses utilized in a fashion that fails to comply with the provisions of this
section.
16. S.C. Code Ann. § 12-21-2804(A) (Supp. 1996) provides that the penalty for
exceeding the maximum number of video game machines permitted in a single place or premises
requires the revocation of the licenses of machines located in the establishment.
17. S.C. Code Ann. § 12-21-2804(A) (Supp. 1996) further provides: "No license may
be issued for a machine in an establishment in which a license has been revoked for a period of six
months from the date of revocation." The clear meaning of this language is to preclude an
establishment which has had a license revoked from utilizing new licenses for a six month period.
Hence, as all of the current licenses have been revoked and no new licenses may be utilized at this
location, this location must cease operations for six months. That is, the Department does not issue
licenses for specific locations, but rather issues licenses to individuals. Therefore, licenses may be
utilized by an operator at any, otherwise qualified, location in the State. Consequently, the above
provision would be rendered meaningless if it were read not to require an establishment whose
licenses have been revoked to cease operations for six months. See Singletary v. South Carolina
Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct. App. 1994), citing State v. Thrift, 312 S.C. 282,
440 S.E.2d 341 (1994) (legislative intent must prevail if it can be reasonably discovered and
language of a statute must be construed in the light of the intended purpose of the statute).
18. S.C. Code Ann. § 12-21-2804(F) (Supp. 1996) provides that a person who violates
S.C. Code Ann. § 12-21-2804(A) is subject to a fine of up to $5,000. The Department seeks a
$5,000 fine against Great Games, Inc., the licensee of some of the machines in question. However,
the Department has not established that Great Games, Inc. applied for, received, maintained, or
permitted to be used permits for the operation of more than five machines authorized under S.C.
Code Ann. § 12-21-2720(A)(3) (Supp. 1996) at a single place or premises. See Stacks v. South
Carolina Dep't of Revenue and Taxation, 95-CP-40-0239 at 8-9 (C.P. Richland County April 20,
1995).
Under § 12-21-2804(A), a license on a video game machine must be revoked by virtue of its
misuse under the Act, regardless if the violator is the licensee, machine owner, or lessee. However,
a monetary fine under § 12-21-2804(F) may only be imposed on the person directly involved in the
violation of § 12-21-2804(A). In this case, the Department only presented sufficient evidence to
establish that Respondents Edwin Alewine and Tina Alewine were directly involved in violating the
Act. The Department did not present sufficient evidence to warrant the imposition of a fine against
Respondent Great Games, Inc., pursuant to S.C. Code Ann. § 12-21-2804(F) (Supp. 1996).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that, as mandated by S.C. Code Ann. § 12-21-2804(A) (Supp. 1996), the Department
shall revoke the thirty (30) video game machine licenses referenced herein, located at Treasure Land
Video, 2110 Main Street, Columbia, South Carolina.
IT IS FURTHER ORDERED that no video game machine licenses shall be utilized in any
of the rooms at Treasure Land Video for a period of six months from the date of revocation of the
licenses.
IT IS FURTHER ORDERED that the Department shall impose a fine of $5,000 each
against Respondents Edwin Alewine and Tina Alewine.
IT IS FURTHER ORDERED that the imposition of a $5,000 fine against Great Games,
Inc. must fail.
IT IS FURTHER NOTED that 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
November 19, 1997
Columbia, South Carolina
1. Regulation 117-190 has been held to be "valid and enforceable and a valid exercise of
the power of the . . . Department." McNickel's, Inc. v. South Carolina Dep't of Revenue, 96-CP-07-1072 (C.P. Beaufort County June 6, 1997); See also AAA Entertainment Corp. v. South
Carolina Dep't of Revenue, 96-CP-07-1595 (C.P. Beaufort County June 6, 1997); Scurry v. South
Carolina Dep't of Revenue, 97-CP-07-0408 (C.P. Beaufort County June 6, 1997). The one
separate employee requirement of Regulation 117-190 was specifically considered in each of
these decisions and held to be a valid exercise of legislative authority. Id. |