ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to a request by
Respondent Collins Entertainment, Inc. 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 September 2, 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
proceedings 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 December 12, 1996, a South Carolina State Law Enforcement (SLED) officer
entered Doug's Grocery at 2803 Santuc-Carlisle Highway in Union, South Carolina for the purpose
of determining compliance with the Coin Operated Devices Act and the Video Game Machines Act.
2. Three coin operated video machines, licensed pursuant to S.C. Code Ann. § 12-21-2720(A)(3), were inside the location.
3. All three machines displayed coin operated device Class III licenses.
4. Two machines displayed a sticker that contained information identifying the owner
as Collins Amusement, Inc. and the owner's address and phone number. A machine bearing Class
III license number 033851, expiring May 31, 1997, did not have attached to the machine a sticker
or any other information identifying the owner or operator of the machine.
5. At the time of the inspection, there was no identifying information on one of the
machines. The SLED officer and the manager of the location checked the machine and were unable
to locate owner identification information on the machine.
6. 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.
7. The Class III machine is identified as a "Pot O Gold" machine bearing serial number
08014117. When plugged in and ready for play, the name "Collins Amusement" appears on the
screen at timed intervals. When the machine is in play, "Collins Amusement" does not appear on
the screen at all.
8. The SLED agent did not notice the screen on the machine on the date of inspection.
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 one 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. The information identifying the owner as "Collins Amusement" was not on an area
of the machine clearly visible for inspection purposes. The name "Collins Amusement" appeared
on the screen of the machine at periodic intervals. To determine the owner, a person inspecting
would have to watch the screen and wait for the logo to appear. In addition, if the machine were in
use by a customer, there would be no way to determine the owner. The person inspecting would
have to wait until the customer was finished before being able to determine the owner of the
machine. Clearly, this was not the intent of the legislature when it enacted the statute requiring that
"identification must be placed on an area of the machine which is visible for inspection purposes."
5. 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).
6. 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.
7. 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.
8. The Respondent argues 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.
9. 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 Dep't, 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.
10. 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).
11. 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 Collins Amusement, Inc. 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, Collins Entertainment, Inc. is fined
$2,500 payable to the Department of Revenue.
AND IT IS SO ORDERED.
ALISON RENEE LEE
Administrative Law Judge
September 3, 1997
Columbia, South Carolina |
