ORDERS:
ORDER
STATEMENT OF THE CASE
This matter comes before me pursuant to Respondent's request for a contested case
hearing under S.C. Code Ann. §§ 1-23-310, et seq., (Supp. 1996). The South Carolina
Department of Revenue ("DOR") issued a Final Agency Determination on April 4, 1997,
alleging that Respondent, United Oil Marketers, Inc., failed to post five penalty signs in
violation of S.C. Code Ann. § 12-21-2802 (Supp. 1996) of the Video Game Machines Act.
After notice to the parties, a hearing was conducted on December 11, 1997.
Based upon the relevant and probative evidence and applicable law as set forth in the
following Findings of Fact and Conclusions of Law, Respondent committed five (5) violations
of S.C. Code Ann. §12-21-2802. The penalty imposed is One Hundred Fifty Dollars ($150.00)
for each violation, totaling Seven Hundred Fifty Dollars ($750.00).
FINDINGS OF FACT
I make the following Findings of Fact, taking into account the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into consideration
the credibility of the witnesses:
On December 9, 1996, Respondent operated five Class III video game machines
licensed under S.C. Code Ann. § 12-21-2720 at 6524 Garners Ferry Road, Columbia, South
Carolina.
2. On December 9, 1996 at approximately 11:45 p.m., South Carolina Law
Enforcement Division ("SLED") Agents K.B. Stokes and J.B. Williams inspected the video
game machines at the location.
3. The location is a convenience store with an attached game room.
4. The following Class III video game machine licenses were affixed to Class III
video game machines located in the room: 043954, 043955, 043956, 043957, and 3810458.
5. The licensee for the licenses is Martha Worrell.
6. United Oil Marketers, Inc. is the business owner and retail operator of the
licensed establishment.
7. United Oil Marketers, Inc. holds a retail license from DOR to engage in retail
business at 6524 Garners Ferry Road, Columbia, South Carolina.
8. At the time of the inspection, none of the machines had prominently displayed
signs citing penalties for tampering with machines, skimming proceeds, or manipulating the
outcome of a machine, as prescribed by S.C. Code Ann. § 12-21-2802 (Supp. 1996).
9. On December 9, 1996, SLED Agent Stokes issued a Preliminary Findings Report
for Video Gaming to Respondent's attendant, which set forth the violations cited.
10. On April 4, 1997, the Department issued a citation and Final Department
Determination to Respondent for violating § 12-21-2802 and assessed a penalty of $1,500.
11. Chris Cloyd of United Oil performs weekly inspections of various game
machines around the state for regulation compliance.
12. Cloyd attached penalty signs to the machines when the machines were first
installed.
13. After receiving notice of the absence of the signs, Cloyd made copies of the signs
and had them reattached.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
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. 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."
3. For each of the five Class III video game machines located and operated at the
subject location, the retail operators are required to have separate penalty signs posted, pursuant
to S.C. Code Ann. § 12-21-2802 (Supp. 1996).
4. Respondent's failure to post penalty signs for each machine amounts to five (5)
separate violations of § 12-21-2802.
5. The Video Games Machines Act does not provide a specific penalty for a
violation of § 12-21-2802; however, the penalty provisions of Title 12, Chapter 54 relating to
license and taxes generally are applicable. See S.C. Revenue Ruling 97-2.
6. Section 12-54-40(b)(3) 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."
S.C. Code Ann. § 12-54-40(b)(3) (Supp. 1996) (emphasis added).
7. 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.
8. 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.
9. Under Section 12-54-40(b)(3), the penalty range is $50 to $500 for each failure.
10. 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).
11. The trier of fact must weigh and pass upon the credibility of evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992).
12. The trial judge is in the best position to weigh witnesses' demeanor and veracity
and to evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322
(1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328
S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
13. In the present case, a monetary penalty in the amount of One Hundred Fifty
Dollars ($150.00) per machine, for a total of Seven Hundred Fifty Dollars ($750.00) is
appropriate and reasonable for violation of the requirement to have posted penalty signs as
required by statute and regulation for the five video game machines located at the subject
location.
14. Pursuant to ALJD Rule 29(B), any issues or motions raised at the hearing but not
addressed in this Order are deemed denied.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Respondent shall pay a penalty of One Hundred Fifty Dollars
($150.00) for each of the five (5) separate violations for a total fine of Seven Hundred Fifty
Dollars ($750.00) for violations of S.C. Code Ann. § 12-21-2802.
IT IS FURTHER ORDERED that United Oil Marketers, Inc. shall pay the above
penalty, totaling Seven Hundred Fifty Dollars ($750.00), to DOR no later than fifteen days (15)
of the date of this Order.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
January 29, 1998
Columbia, South Carolina |
