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 |
