ORDERS:
ORDER AND DECISION
This matter comes before this tribunal pursuant to S.C. Code Ann. §§ 12-4-30(D) and 1-23-310, et seq. (Supp. 1996). The Department of Revenue issued a Final Agency Determination
on June 30, 1997 alleging that Respondent failed to attach an owner identification sign to a video
gaming machine as required by S.C. Code Ann. § 12-21-2748 (Supp. 1996). After notice to the
parties, a hearing was conducted on December 16, 1997.
The issues before this tribunal are (1) whether Respondent violated S.C. Code Ann. § 12-21-2748 (Supp. 1996) and (2) if so, what is the proper penalty for the violation. Based upon the
following Findings of Fact and Conclusions of Law, this tribunal concludes that Respondent
violated S.C. Code Ann. § 12-21-2748 (Supp. 1996). The penalty for this violation shall be
$2,500.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
- Respondent owned the five operational Class III video gaming machines located
at Nicki's Novelties and Gifts, 3311 E Broad River Road, Columbia, South Carolina, on January
21, 1997.
- On January 21, 1997, State Law Enforcement Division (ASLED@) Agents Keith
Stokes and Chris Graham inspected the video poker machines at Nicki's Novelties and Gifts and
determined that one of the five machines did not have the required owner or operator information
affixed.
- Agent Stokes issued a Preliminary Findings Report to the attendant at Nicki's
finding a violation of S.C. Code Ann. § 12-21-2748 (Supp. 1996).
- On April 4, 1997, the Department issued a citation to Respondent for violating §
12-21-2748 and assessed a penalty of $2,500.
- On June 30, 1997, the Department issued a Final Determination sustaining the
issuance of the citation and the $2,500 penalty.
- The parties stipulated that the testimony of Agent Graham, if offered, would be
virtually identical to the testimony of Agent Stokes.
CONCLUSIONS OF LAW AND ANALYSIS
- 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.
- 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.
(emphasis added).
- The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern
Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who
observes a witness, is in the better position to judge the witness's demeanor and veracity and evaluate
his 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);
Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
- The video gaming machine in question was licensed pursuant to § 12-21-2720.
- S.C. Code Ann. § 12-21-2738 (Supp. 1996) provides in pertinent part that: "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 . . . licensed pursuant to Section 12-21-2720(A)(3), the applicable penalty is two thousand five hundred dollars, no part of which may
be suspended . . . ."(1) (emphasis added).
- This tribunal has no legislative powers, and the justice or wisdom of statutes rests
exclusively with the General Assembly. See Smith v. Wallace, 295 S.C. 448, 369 S.E.2d 657 (Ct.
App. 1988).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that, the Department shall impose a fine of $2,500 against Respondent for the
violation of S.C. Code Ann. § 12-21-2748 (Supp 1996).
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 12, 1998
Columbia, South Carolina
1. Section 12-21-2738 was amended to delete the words "no part of which may be
suspended" by Section 8 of Act 53 of 1997, effective June 6, 1997. However, "'there is a
presumption that statutory enactments are to be considered prospective rather than retroactive
in their operation unless' the statutes are remedial or procedural in nature." Smith v. Eagle
Construction Co., Inc., 282 S.C. 140, 143, 318 S.E.2d 8, 9 (1984) (citing Hercules, Inc. v.
South Carolina Tax Comm'n, 274 S.C. 137, 143, 262 S.E.2d 45, 48 (1980). "'Statutes are
remedial and [retroactive], in the absence of directions to the contrary, when they create new
remedies for existing rights . . . enlarge the rights of persons under disability, and the like,
unless [they] . . . violate some contractual obligation.'" Smith v. Eagle Construction Co., Inc.,
282 S.C. 140, 143, 318 S.E.2d 8, 9 (1984) (quoting Byrd v. Johnson, 220 N.C. 184, 16
S.E.2d 843 (1941).
In the instant case, the amendment is not remedial (and thus not retroactive) and the
date of the violation was January 21, 1997, prior to the effective date of the amendment.
Thus, the amendment does not apply. Further, even as amended, the statute states, "If a
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." S.C. Code
Ann. § 12-21-2738 (Supp. 1997). |