ORDERS:
FINAL ORDER AND DECISION
This matter comes before me upon Respondent's request for a contested case hearing
pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1996) and S.C. Code Ann. §1-23-320 (Supp.
1996) and involves a Final Agency Determination issued by the South Carolina Department of
Revenue ("DOR") on July 11, 1997, alleging that Respondent, Vito Finizio, d/b/a Treasure
Island I, 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 16, 1997.
The issues are: (1) how many, if any, violations of S.C. Code Ann. §12-21-2802 (Supp.
1996) did Respondent commit; and (2) if violation(s) did occur, what is the proper penalty.
Based upon the probative evidence and applicable law, I conclude that Respondent committed
one violation of S.C. Code Ann. §12-21-2802, and is ordered to pay a penalty of Five Hundred
Dollars ($500.00).
DISCUSSION
Respondent is the retail operator of a single, five-station blackjack machine. He
concedes that under § S.C. Code Ann. § 12-21-2720(C) (Supp. 1996) a machine with multi-player stations, requires a separate license for each station and that any such multi-player station
counts as a machine when determining the number of machines authorized for licensure under
§ 12-21-2804(A). The five-station machine in question has five separate licenses.
Respondent also admits that he operated the multi-player machine without any penalty
sign, in violation of S.C. Code Ann. §12-21-2802 (Supp. 1996) of the Video Game Machines
Act. DOR cited Respondent for five separate violations of §12-21-2802 for failure to have a
penalty sign for each station. Respondent argues, however, that he committed only a single
violation, in that §12-21-2802 requires a penalty sign be posted for each licensed machine and
not for each machine license.
The pertinent portions of the two applicable statutes provide as follows:
Section 12-21-2802. 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.
Section 12-21-2720(C). The owner or operator of any coin-operated device . . .
subject to licensing . . . and which has multi-player stations, shall purchase a
separate license for each such station and any such multi-player station counts as
a machine when determining the number of machines authorized for licensure
under Section 12-21-2804(A).
Each station of a multi-player machine is considered a separate machine only for
licensing purposes and for determining the number of machines at a single place or premises.
Section
12-21-2720(C) does not mandate that a multi-station machine be counted as more than one
machine for any other purposes. Section 12-21-2802 was enacted in 1993. Section
12-21-2720(C) was amended in 1995. Had the legislature intended each station of a multi-player machine to be considered a separate machine for purposes of § 12-21-2802, it could have
made that application clear in its 1995 amendment to § 12-21-2720(C), or by a separate
legislative amendment to §12-21-2802. There is absolutely no exception enunciated in either
statute to require the posting of a separate penalty sign for each station of a multi-player
machine, and the rules of statutory construction does not allow this Court to read such a
requirement into the current law.
For the foregoing reasons, I find and conclude that Respondent committed a single
violation of §12-21-2802. Because the lack of a penalty sign on a five-player machine
potentially deprives up to five players of notice of the penalty provisions related to the
operation of video
game machines, the $500 maximum penalty allowed to be assessed for such a violation is a
reasonable fine.
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 12, 1996, a video game machine business known as Treasure
Island operated at 773 Main Street #185, North Myrtle Beach, South Carolina.
3. The location is a mall-type setting with several game rooms. One of the game
rooms, Treasure Island I, contained a multi-player five-station blackjack machine.
4. The following Class III video game machine licenses were affixed to the five-station Class III video game machine located in Treasure Island I: 3805933, 3805934, 3805935,
3805936 and 3805937.
5. Collins Entertainment, Inc. is the licensee for the licenses affixed to the five-station Class III video game machine located in Treasure Island I.
6. Vito Finizio is the business owner and retail operator of Treasure Island I.
7. On December 12, 1996 at approximately 5:10 p.m., South Carolina Law
Enforcement Division (SLED) Agent Rhett Holden, Jr. inspected the video game machines at
the location.
8. At the time of the inspection, the five-station machine did not have any
prominently displayed signs citing penalties for tampering with machines, skimming proceeds,
or manipulating the outcome of a machine, as required by S.C. Code Ann. §12-21-2802 (Supp.
1996).
9. Upon completion of his inspection, SLED Agent Holden issued a Preliminary
Findings Report for Video Gaming to Respondent's attendant, which set forth the violation
cited.
10. On July 11, 1997, DOR issued a citation and Final Department Determination to
Respondent for five violations of § 12-21-2802 and assessed a total penalty of $1,500.
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. Pursuant to S.C. Code Ann. § 12-21-2802 (Supp. 1996), "[E]ach 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. S.C. Code Ann. § 12-21-2802 first became effective on July 1, 1993.
4. S.C. Code Ann. § 12-21-2720(C) (Supp. 1996) states: "The owner or operator of
any coin-operated device . . . subject to licensing . . . and which has multi-player stations, shall
purchase a separate license for each such station and any such multi-player station counts as a
machine when determining the number of machines authorized for licensure under Section
12-21-2804(A)."
5. S.C. Code Ann. § 12-21-2720(C) was last amended in 1995.
6. It is well established that in interpreting a statute, the court's primary function is
to ascertain the intention of the legislature. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660
(1991); First South Savings Bank, Inc. v. Gold Coast Assocs., 301 S.C. 158, 390 S.E.2d 486
(Ct. App. 1990).
7. In construing a statute, the language used should be given its plain and ordinary
meaning without resort to subtle or forced construction to limit or expand the statute's operation.
Home Health Serv., Inc. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); Bryant v.
City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988).
8. Where terms of a statute are clear and unambiguous, they must be applied
according to their literal meaning. Medlock v. 1985 Ford F-150 Pick Up, et al., 308 S.C. 68,
417 S.E.2d 85 (1992); Green v. Zimmerman, 269 S.C. 535, 238 S.E.2d 323 (1977).
9. "A statute should be so construed that no word, clause, sentence, provision or
part shall be rendered surplusage, or superfluous. . . ." 82 C.J.S. Statutes § 346; Savannah Bank
& Trust Co. of Savannah v. Shuman, 250 S.C. 344, 157 S.E.2d 864 (1967).
10. When amending § 12-21-2720, the legislature did not specifically address the
issue of penalty sign provisions and multi-player station machines.
11. Under its plain and ordinary meaning, § 12-21-2802 clearly and unambiguously
requires the posting of a penalty sign for each licensed machine, not each machine license.
12. Under its plain and ordinary meaning, it is clear and unambiguous that each
individual station of a multi-player machine is to be counted as a separate machine only for the
purposes of licensing and counting machines at a single place or premises to keep the number of
machines at a maximum of five.
13. Neither § 12-21-2720 nor § 12-21-2802 require the posting of a separate penalty
sign for each station of a multi-player machine.
14. Under a plain and ordinary reading of § 12-21-2720, a multi-player station counts
as a single machine, regardless of the number of licenses required.
15. For purposes of construing the penalty sign provision of § 12-21-2802, a multi-player station machine is required to have only one penalty sign.
16. 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.
17. 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."
(emphasis added).
18. Pursuant to § 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.
19. 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.
20. Under Section 12-54-40(b)(3), the penalty range is $50 to $500 for each failure.
21. 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).
22. 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).
23. 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 659 (Ct. App. 1985).
24. In the present case, a monetary penalty in the amount of $500 for violation of the
requirement to have posted a penalty sign for the five-station blackjack game machine located at
the subject location is appropriate and reasonable.
25. 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 DOR shall impose a fine of Five Hundred Dollars ($500) against
Respondent for the violations of S.C. Code Ann. § 12-21-2802.
IT IS FURTHER ORDERED that Vito Finizio, d/b/a Treasure Island I, shall pay the
above monetary penalty to DOR no later than fifteen (15) days from the date of this Order.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 27, 1998
Columbia, South Carolina |
