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. James T. Goodman, d/b/a Pitt Stop

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
James T. Goodman, d/b/a Pitt Stop
 
DOCKET NUMBER:
97-ALJ-17-0415-CC

APPEARANCES:
Nicholas P. Sipe, Esquire, and Sean Bolchoz for Petitioner

James T. Goodman, pro se, Respondent
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is before the Division pursuant to a citation issued by the Department of Revenue ("DOR") against James T. Goodman for failing to display a penalty sign on or above a class III video game machine as required by S.C. Code Ann. § 12-21-2802 (Supp. 1996). DOR seeks a $300 fine. After notice to the parties, a hearing was conducted on November 17, 1997. I find and conclude that a violation did occur and order the Respondent to pay a fine of $150.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

Respondent James T. Goodman owns and operates an establishment known as the Pitt Stop, which is located at Highway 34 in Ninety Six, South Carolina.

Respondent holds a South Carolina retail license for the Pitt Stop.

On January 23, 1997, Respondent maintained for use at the Pitt Stop two Class III video game machines licensed under S.C. Code Ann. § 12-21-2720 (Supp. 1996) of the Video Game Machines Act, S.C. Code Ann. §§ 12-21-2770, et seq. (Supp. 1996).

The two Class III video game machines at the Pitt Stop were situated against a wall in an area designated as a game room, located approximately two feet apart from each other.

On January 23, 1997, James Causey and Clayton Pope, agents of the South Carolina Law Enforcement Division (SLED), inspected the premises of the Pitt Stop.

At the time of inspection, one prominently displayed sign citing penalties (as required by S.C. Code Ann. § 12-21-2802 (Supp. 1996)) was posted on the wall between the two Class III video game machines at the Pitt Stop.

After their inspection, the SLED agents informed Respondent that only one penalty sign was found and issued a Preliminary Findings Report to Respondent which stated that there was reason to believe that a violation of S.C. Code Ann. § 12-21-2802 (Supp. 1996) had occurred.

By letter dated and mailed April 4, 1997, and remailed April 22, 1997, DOR formally cited Respondent with a violation of S.C. Code Ann. § 12-21-2802 (Supp. 1996).

By letter dated June 10, 1997, DOR informed Respondent that after consideration of Respondent's letter dated May 6, 1997, its Final Determination that the violation occurred and that DOR was assessing a fine of $300.

Upon receipt of the DOR Final Determination, Respondent timely requested a contested case hearing and the matter was transmitted to the ALJD.

CONCLUSIONS OF LAW

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

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

S.C. Code Ann. § 12-21-2802 (Supp. 1996) provides:

Each machine licensed under this article (Video Game Machines Act) or Article 19 must have a prominently displayed sign citing the penalties provided by Sections 12-21-2790, 12-21-2792, and 12-21-2794 on the wall above the machine or affixed prominently to the machine. The commission shall make these signs available free of charge.

Because the Pitt Stop had two licensed Class III video game machines simultaneously in operation, Respondent was required to have two separate penalty signs posted, pursuant to S.C. Code Ann. § 12-21-2802 (Supp. 1996).

Respondent's failure to have a penalty sign for one of the two Class III machines located at the Pitt Stop is a single violation of S.C. Code Ann. § 12-21-2802 (Supp. 1996).

The Video Games Machines Act does not provide a specific penalty for a violation of § 12-21-2802; however, thepenalty provisions of Title 12, Chapter 54 relating to license and taxes generally are applicable. See S.C. Revenue Ruling 97-2.

S.C. Code Ann. §12-54-40(b)(3) (Supp. 1996) provides:

A person who is liable to obtain a license or purchase stamps for identification purposes, who fails to obtain or display the license properly, or who fails to affix the stamps properly, or fails to comply with statutory provisions, is subject to a penalty of not less than fifty dollars nor more than five hundred dollars for each failure. For failure to obtain or display a license as prescribed in Sections 12-21-2720 and 12-21-2730, the penalty is fifty dollars for each failure to comply.

Pursuant to Section 12-54-40(b)(3), a penalty may be assessed against a retail license holder which fails to comply with statutory requirements associated with the retail license.

As the retail operator of a Class III video game machine, Respondent is required by S.C. Code Ann. § 12-21-2720(A)(3) of the Video Game Machines Act to obtain a retail license under Chapter 36 of Title 12, for the retail business location.

Under Section 12-54-40(b)(3), the penalty range is $50 to $500 for each failure.

Within statutory limits, the amount of a fine is a matter of trial-court discretion. State v. Sheppard, 54 S.C. 178, 32 S.E. 146 (1899). An administrative law judge, as fact finder, has the prerogative "to impose an appropriate penalty based on the facts presented." Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 211, 407 S.E.2d 633, 634 (1991);.

In the present case, a penalty of $150 is appropriate and reasonable.

Any issues raised in the proceedings or hearing of this matter not specifically addressed in this Order are deemed denied. ALJD Rule 29.



ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED, that James T. Goodman, d/b/a Pitt Stop, pay a monetary penalty to DOR in the amount of One Hundred Fifty Dollars ($150) within fifteen (15) days of the date of this Order..

AND IT IS SO ORDERED.



STEPHEN P. BATES

Administrative Law Judge

December 31, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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