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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Edward Rothschild, d/b/a Con X Tion

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Edward Rothschild, d/b/a Con X Tion
 
DOCKET NUMBER:
97-ALJ-17-0561-CC

APPEARANCES:
Nicholas P. Sipe, Esquire
For Petitioner

H. Louis Sirkin, Esquire
John Delgado, Esquire
For Respondent
 

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 23, 1997 alleging that Respondent failed to attach an owner identification sign to two video gaming machines 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 are the proper penalties for the violations. 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 these violations shall be $5,000.

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:

  1. Respondent owned the four operational Class III video gaming machines located at Con X Tion, 3311 B Broad River Road, Columbia, South Carolina, on January 21, 1997.
  2. On January 21, 1997, State Law Enforcement Division (ASLED@) Agents Keith Stokes and Chris Graham inspected the video poker machines at Con X Tion and determined that two of the four machines did not have the required owner or operator information affixed.
  3. Agent Stokes issued a Preliminary Findings Report to the attendant on duty finding violations of S.C. Code Ann. § 12-21-2748 (Supp. 1996).
  4. On May 30, 1997, the Department issued a citation to Respondent for violating § 12-21-2748 and assessed a penalty of $2,500 for each violation.
  5. On June 23, 1997, the Department issued a Final Determination sustaining the issuance of the citation and the $5,000 penalty.
  6. 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
  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. §12-21-2748 (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).

  1. 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).
  2. The video gaming machines in question were licensed pursuant to § 12-21-2720.
  3. 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).
  4. 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 $5,000 against Respondent for the violations 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).


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