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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. David W. Corder, d/b/a Wendell's Amusement Co.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
David W. Corder, d/b/a Wendell's Amusement Co.
 
DOCKET NUMBER:
97-ALJ-17-0194-CC

APPEARANCES:
Nicholas P. Sipe, Esquire, for Petitioner

James I. Ruff, Esquire, for Respondent
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to a request by Respondent David W. Corder, d/b/a Wendell's Amusement Co. for a hearing on a citation issued by the Department of Revenue for violation of S.C. Code Ann. §12-21-2748 (Supp. 1996). After notice to the parties, a hearing was conducted on July 7, 1997. Based upon the evidence presented, the Respondent violated the provisions of S.C. Code Ann. § 12-21-2748 (Supp. 1996). Any issues raised in the proceeding or hearing of this matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29.

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. On September 23, 1996, a South Carolina State Law Enforcement (SLED) officer entered Padgett's Bait and Tackle in Saluda, South Carolina for the purpose of determining compliance with the Coin Operated Devices Act and the Video Game Machines Act.

2. Two coin operated video machines, licensed pursuant to S.C. Code Ann. § 12-21-2720(A)(3), were inside the location.

3. Both machines displayed coin operated device Class III licenses.

4. One machine displayed a sticker that contained information identifying the owner as Wendell's Amusement Co. and the owner's address and phone number. A machine bearing Class III license number 025587 did not have a sticker or any other information identifying the owner or operator of the machine.

5. The SLED officer issued a preliminary report finding a violation of the Video Game Machines Act for failing to display owner identification on one of the Class III machines.

6. A few days prior to September 23, 1996, an employee for Wendell's Amusement Co. inspected the machines and each machine had a sticker attached to it that contained information identifying the owner.

7. After the inspection, the employee for Wendell's Amusement Co. examined the machine cited and no owner identification sticker was attached.

8. At the time of the inspection, there was no identifying information on the machine. The SLED officer obtained information about the cited machine from an employee at the location and from the other machines located on the premises.

9. On numerous occasions, Wendell's Amusement Co. has had to replace owner identification stickers on its machines because they are worn or torn or have been ripped off of the machines.

10. Prior to September 23, 1996, the Class III video game machines located at Padgett's Bait and Tackle had owner identification information affixed to the machines.

11. The Department had not issued any violations against Respondent for failing to have owner identification attached to the machines before September 23, 1996.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1. The Administrative Law Judge Division has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1996) and S.C. Code Ann. § 1-23-320 (Supp. 1996).

2. S.C. Code Ann. § 12-21-2748 (Supp. 1996) provides:

Any person who owns or operates devices described in §§ 12-21-2720 and 12-21-2730 must have attached to the machine information identifying the owner or operator of the machine. The identification must be placed on an area of the machine which is visible for inspection purposes. This identification is a condition precedent before the machines may be operated on location. Failure to comply with this requirement subjects the violator to the penalty and enforcement provisions of this chapter and of Chapter 54 as applicable.

3. In this case, the evidence indicates that the machine which was licensed pursuant to S.C. Code Ann. §12-21-2720 (A)(3) did not have the owner identification attached at the time of the inspection. The Respondent violated the provisions of S.C. Code Ann. §12-21-2748 (Supp. 1996).

4. At the time of the issuance of the preliminary report by SLED, Section 12-21-2738 read:

A person, who fails, neglects, or refuses to comply with the terms and provisions of this article or who fails to attach the required license to any machine, apparatus, billiard, or pocket billiard table, as herein required, is subject to a penalty of fifty dollars for each failure, and the penalty must be assessed and collected by the commission.

If 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, and one-half of this penalty must be deposited to the credit of the general fund of the State and one-half must be retained by or forwarded to the law enforcement or administrative agency charging the violation.

S.C. Code Ann. § 12-21-2738 (Supp. 1996).

5. Section 8 of Act 53 of 1997 amended this section, in particular the second paragraph. The amended paragraph reads:

If 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, and one-half of this penalty must be deposited to the credit of the general fund of the State and one-half must be retained by or forwarded to the law enforcement or administrative agency charging the violation.

The effective date of this amendment was June 6, 1997.

6. Section 6 of Act 114 of 1997 also amended Section 12-21-2738, in particular the second paragraph. As amended this paragraph reads:

If 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, a part of which may not be suspended. This penalty must be deposited to the credit of the general fund of the State.

The effective date of this amendment was June 13, 1997.

7. The Department and Respondent argue that the amendments to this section should be read in pari materia thereby giving effect to legislative intent to allow the $2,500 fine to be suspended if this tribunal deems it appropriate.

8. The rule as to construction of statutes in pari materia may be applied where there is an ambiguity to be resolved and not where the meaning of the statute is clear and unambiguous. Rabon v. S. C. State Highway Dept., 258 S.C. 154, 187 S.E.2d 652 (1972). The language of the statute as currently enacted is clear and unambiguous. Where words of a statute are clear and unambiguous, its terms must be given their literal meaning. Duke Power Co. v. S.C. Tax Comm'n, 292 S.C. 64, 354 S.E.2d 902 (1987). There is no basis for the application of the rule as to the construction of statutes in pari materia.

9. The argument by counsel is that the amendments are conflicting in nature and must be construed together to derive the legislative intent. Even if the amendments are viewed as conflicting, "[u]nder the 'last legislative expression' rule, where conflicting provisions exist, the last in point of time or order of arrangement, prevail [citations omitted]." Ramsey v. County of McCormick, 306 S.C. 393, 397, 412 S.E.2d 408, 410 (1991); Duke Power Co. v. S. C. Pub. Serv. Comm'n, 284 S.C. 81, 326 S.E.2d 395 (1985).

10. Based upon the last enactment affecting Section 12-21-2738, the penalty for failure to affix information identifying the owner to a Class III machine is $2,500, a part of which may not be suspended. The language of the statute clearly states that a part of the $2,500 fine may not be suspended.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that David W. Corder, d/b/a Wendell's Amusement Co. violated S.C. Code Ann. § 12-21-2748 (Supp. 1996) by failing to have information identifying the owner of the machine licensed under Section 12-21-2720 placed on an area of the machine visible for inspection purposes.

IT IS FURTHER ORDERED that the Respondent, David W. Corder, d/b/a Wendell's Amusement Co. is fined $2,500 payable to the Department of Revenue.

AND IT IS SO ORDERED.





ALISON RENEE LEE

Administrative Law Judge

July 9, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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