ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to Respondent's request for a contested case
hearing, dated February 21, 1997. Respondent contests the Department of Revenue's
("Department") issuance of a Final Department Determination of an Administrative Violation on
January 24, 1997. The Department alleged that Respondent violated S.C. Code Ann. § 12-21-2720(A) by maintaining five Class III machines for operation without licenses.
The Department seeks a $12,500 ($2,500 per machine) penalty for the alleged violation of
Section 12-21-2720(A)(3). A hearing was held at the Administrative Law Judge Division on
May 1, 1997.
STIPULATED FACTS
The parties stipulated to the following facts at the hearing of this matter:
On Wednesday, October 2, 1996, at approximately 12:00 p.m., SLED Agent Pam
Williamson of the South Carolina Law Enforcement Division ("SLED") entered 501 Amoco,
located at 1432 Highway 501, Myrtle Beach, South Carolina, to conduct an inspection of the
video gaming machines and licenses at that location. During the inspection, Ms. Williamson
noted five Class III machines with licenses on them acquired pursuant to S.C. Code Ann. § 12-21-2720(A) (3). The license numbers, as reflected in Petitioner's Exhibit #5, were: 631219,
631218, 631217, 631220, and 631237. These licenses belonged to William G. Poston, d/b/a
Seashore Amusement, as indicated by Petitioner's Exhibits #4-1 and #4-2. These exhibits clearly
indicate that the licenses which were on the machines on October 2, 1996 had expired Monday,
September 30, 1996. Mr. Poston operated approximately one and a half days without a current
license on any of the five machines. On October 2, 1996, at the time of the violation, there were
no current licenses affixed to the machines at 501 Amoco, nor did Mr. Poston otherwise possess
current licenses for these five machines.
The Department has complied with the Revenue Procedures Act with regard to notice,
from the initial notice from Office Services, which is Petitioner's Exhibit #2, and the Final
Department Determination, which is Petitioner's Exhibit #1. The penalty sought, pursuant to S.C.
Code Ann. § 12-21-2738, is set forth in both Petitioner's Exhibit #1 and #2, $2,500 for each of
the five machines which did not have a license affixed. Section 12-21-2738 specifically states in
the second paragraph that a $2,500 penalty applies to violations involving Class III machines, no
part of which may be suspended.
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 case.
2. Respondent stipulated to the facts as set forth above, and concedes that he violated
S.C. Code Ann. § 12-21-2720(A)(3) on October 2, 1996. However, Respondent moved this
tribunal to remand this matter to the Department, as Respondent contends that the Department
has the authority to compromise the fine assessed against the Respondent. Respondent further
contends that a compromise of penalty is warranted under the circumstances of this case. To the
contrary, the Department argues that the penalty is set forth by the statute, S.C. Code Ann. § 12-21-2738, and the Department has no authority to compromise such penalties.
3. Section 12-21-2720(A)(3) provides in pertinent part:
(A) Every person who maintains for use or permits the use of, on a place or premises occupied by him, one or more of the following machines or devices shall apply for and procure from the South Carolina Department of Revenue and Taxation a license effective for two years for the privilege of making use of the machine in South Carolina and shall pay for the license a tax of fifty dollars for each machine in item (1), two hundred dollars for each machine in item (2), and three thousand dollars for each machine in item (3):
. . .
(3) A machine of the nonpayout type, in-line pin game, or video game with free play feature operated by a slot in which is deposited a coin or thing of value except machines of nonpayout pin table type with levers or "flippers" operated by the player by which the course of the balls may be altered or changed.
S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1996) (emphasis added). Since, Respondent
concedes that he violated S.C. Code Ann. § 12-21-2720(A) (3) the only issue before this tribunal
is whether the penalty assessed by the Department is appropriate.
4. S.C. Code Ann. § 12-21-2738 (Supp. 1996) provides penalties for failure to
comply with Section 12-21-2720(A)(3). Section 12-21-2738 provides, in pertinent part, "[i]f the
violation under this section relates to a machine licensed pursuant to Section 12-21-2720(A) (3),
the applicable penalty amount is two thousand five hundred dollars, no part of which may be
suspended, . . . ."
5. 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 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 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 Comm'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). Further, "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 (1953); Savannah v. Shuman, 250 S.C.
344, 157 S.E.2d 864 (1967).
In the case at hand, Respondent testified that an accident involving his father contributed
to his failure to renew his licenses. The incident involving Respondent's father is unfortunate,
however, this tribunal has no legislative powers and the justice or wisdom of statutes rests
exclusively with the General Assembly. See State v. Wallace, 295 S.C. 448, 369 S.E.2d 657 (Ct.
App. 1988). S.C. Code Ann. § 12-21-2738 expressly provides that no part of the $2,500 penalty
may be suspended if a violation of 12-21-2720(A) (3) occurs. Notwithstanding the exigent
circumstances described in the case at bar, Respondent has admitted to the violation, thereby,
subjecting himself to the penalty prescribed by Section 12-21-2738; and, as such, the opportunity
for compromise has been lost. Therefore, this tribunal declines to remand this matter to the
Department for its consideration of Respondent's request for compromise.ORDER
Based upon the foregoing Stipulated Facts and Conclusions of Law, IT IS HEREBY
ORDERED that the monetary fine of $12,500 imposed by the Department is sustained for the
violation of S.C. Code 12-21-2720 (A)(3).
IT IS FURTHER ORDERED 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
May 13, 1997
Columbia, South Carolina |
