South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Collins Entertainment Corp.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Collins Entertainment Corp.
 
DOCKET NUMBER:
97-ALJ-17-0607-CC

APPEARANCES:
For the Petitioner: Carol I. McMahan, Esquire

For the Respondent: James H. Harrison, Esquire
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE


This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1996) and 1-23-600 (Supp. 1996), upon request for a contested case hearing by Collins Entertainment Corporation ("Respondent"). Respondent was cited with an administrative violation of S.C. Code Ann. Section 12-21-2748 (Supp. 1996) for allegedly failing to affix owner/operator identification to a machine licensed pursuant to S.C. Code Ann. § 12-21-2720(A)(3)(Supp. 1996) (commonly referred to as "Class III" machines). The South Carolina Department of Revenue ("Department") seeks an order from this court finding the alleged violation on April 22, 1997, at 830 Bleckley St., Anderson, South Carolina. Further, the Department seeks a penalty of $2,500.00 for this violation.

The Respondent argues the identification was attached to its Class III machine; however, it argues that if the sticker was removed, someone else removed it, and as such, no penalty should be imposed. It also argues that the penalty provision cited by the Petitioner as controlling here, S.C. Code Ann. § 12-21-2738 (Supp. 1996) has been amended to allow discretion as to the penalty imposed for such violations. Accordingly, it argues if a violation is found here, a minimum penalty should be imposed.

After timely notice to the parties, a contested case hearing was held in Columbia, South Carolina on December 18, 1997.

Based upon a thorough review of the record and of the testimony and evidence presented at the hearing, I conclude that the Respondent violated the provisions of S.C. Code Ann. § 12-21-2748 and find that a penalty in the amount of Two Thousand Five Hundred ($2,500.00) Dollars is appropriate under the circumstances.

EVIDENCE


Without objection, Petitioner placed into evidence the following exhibits:

Exhibit 1: Department's Final Determination and Notice of Violation Letter from the Department dated September 12, 1997 and June 27, 1997, respectively.

Exhibit 2: Respondent's Request for a contested case hearing dated October 10, 1997.

Exhibit 3: Findings Report with memo to file by SLED agent Aaron D. Jackson, dated April 22, 1997, and April 29, 1997, respectively.

Exhibit 4: Respondent's Coin Operated Device Application for the Class III license at issue.

Exhibit 5: South Carolina Revenue Procedure 97-2.

Exhibit 6: Order and Decision in S.C. Department of Revenue v. Tire and Oil Company, Inc. and Collins Entertainment Corporation, Docket No. 97- ALJ-17-0310-CC (September 18, 1997); South Carolina Department of Revenue v. Collins Entertainment Corporation at Grand Central I- 77, Docket No. 97-ALJ-17-0443-CC (December 9, 1997); South Carolina Department of Revenue v. Collins Entertainment, Inc., Docket No. 97-ALJ-17-0290-CC (September 3, 1997).

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing and taking into account the credibility of the witnesses, accuracy of the evidence and reviewing all of the exhibits carefully, I make the following findings by a preponderance of the evidence:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to both parties.

3. Respondent is the owner of Class III machines and licenses. On April 22, 1997, Respondent had a Class III machine with License No. 3805178, located at 830 Bleckley Street, Anderson, South Carolina.

4. On April 22, 1997, SLED agent Aaron Jackson and agent Don Evatt conducted an inspection at this location. Both agents observed that the Class III machine with License No. 3805178, failed to have an owner/operator identification attached to the machine. The entire machine was thoroughly examined by the agents. Such inspection revealed there was no identification affixed to the machine. The agents also observed one employee in the store, the cashier, Harold Williams.

5. Agent Jackson wrote up a Findings Report and left a copy with the store clerk, Mr. Williams.

CONCLUSIONS OF LAW


Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. This matter is properly before the Administrative Law Judge Division pursuant to the provisions of Chapter 23, Title 1 and S.C. Code Ann. § 12-4-30(D) (Supp. 1996).

2. S.C. Code Ann. § 12-21-2748 (Supp. 1996) provides:

Any person who owns or operates devices described in Sections 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.

3. At the time of the violation, S.C. Code Ann. § 12-21-2738 (Supp. 1996) provided:

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, apparatus, billiard, or pocket billiard table, as herein required, is subject to a penalty of fifty dollars for each failure, and the penalty must be assessed and collected by the commission.

If the 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, no part of which may be suspended, and one-half of this penalty must be deposited to the credit of the general fund of the State and one-half must be retained by or forwarded to the law enforcement or administrative agency charging the violation.

4. Section 8A of Act 53 of 1997 amended Section 12-21-2738 effective June 6, 1997. The amendment removed the language "no part of which may be suspended," from the statute.

5. The determination of the credibility of the witnesses rests in the sound discretion of the trial judge. See 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); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

6. Where a statute is clear and unambiguous, there is no room for construction and the terms of the statute must be given their literal meaning. Southeastern Fire Ins. Co. v South Carolina Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969); Green v. Zimmerman, 269 S.C. 535, 238 S.E.2d 323 (1977).

7. It is impossible for reasonable minds to differ as to the proper interpretation of S.C. Code Ann. § 12-21-2748 (Supp. 1996). That statute requires in unambiguous language that "owner/operator identification" be placed on the Class III machine "visible for inspection purposes." After a thorough examination of the evidence presented concerning the Class III machine at issue here, evaluating the credibility of the witnesses, I find and conclude that Respondent failed to have owner/operator identification on this machine on April 22, 1997 at the time of the SLED agents' inspection.

8. The Department seeks a penalty of Two Thousand Five Hundred ($2,500.00) Dollars for this violation. At the time of the violation S.C. Code Ann. § 12-21-2738 (Supp. 1996) provided that for violations such as that at issue here, a penalty of $2,500.00 was appropriate, "no part of which may be suspended." Although this provision was deleted by Act No. 53 of 1997, there is no indication whatsoever, in the language of the statute that would indicate a retroactive application of this provision. Prospective or retroactive application of a statute is controlled by legislative intent. Jenkins v. Meares, 302 S.C. 142, 394 S.E.2d 317 (1990). Retroactive application will not be given a statute unless it is clearly compelled and leaves no room for doubt. See American Nat'l Fire Ins. v. Smith Grading, 317 S.E. 445, 454 S.E.2d 897 (1995). Here, the violation occurred well before the amendment to S.C. Code Ann. § 12-21-2738. There is nothing that can be gleaned from the language of the amendment that would compel a retroactive application of its provisions. As such, I find and conclude that the amendment to the penalty provisions is not retroactive to the violation at issue. However, even if the amendment were retroactive, a penalty of $2,500.00 would be appropriate in this case based on Respondent's history of a multitude of violations of this nature, as set forth at Petitioner's Exhibit 6.

ORDER


Based on the foregoing Findings of Fact and the Conclusions of Law, it is hereby:

ORDERED that Respondent shall pay a fine to the Department in the amount of Two Thousand Five Hundred ($2,500.00) Dollars for the violation of S.C. Code Ann. Section 12-21-2748 (Supp. 1996) on April 22, 1997.

___________________________

Marvin F. Kittrell

Chief Judge

January 14, 1998

Columbia, South Carolina


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