South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Hugh Andrews, II and Piedmont Tool & Supply Co., Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Hugh Andrews, II and Piedmont Tool & Supply Co., Inc.
 
DOCKET NUMBER:
97-ALJ-17-0643-CC

APPEARANCES:
Petitioner, South Carolina Department of Revenue:

Nicholas P. Sipe, Esq.

Respondent, Hugh Andrews, II and Piedmont Tool & Supply Co., Inc.:

James M. Griffin, Esq.

Parties Present: All Parties
 

ORDERS:

ORDER

I. Statement of the Case


South Carolina Department of Revenue (DOR) seeks the revocation of 10 Class III video poker licenses, fines of $5,000 each against Hugh Andrews, II and Piedmont Tool and Supply Co., Inc., and an order prohibiting the use of any Class III video poker licenses at 1820 Highway 321, Bowling Green, South Carolina for six months from the date of license revocation. Hugh Andrews, II (Andrews) and Piedmont Tool and Supply Co. Inc. (Piedmont) oppose DOR's position and seek a denial of the proposed assessments and a denial of DOR's request for revocation of the 10 Class III licenses. Andrews' and Piedmont's disagreement with DOR's determination places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 12-4-30(D) (Supp. 1997); S.C. Code Ann. § 1-23-310 et seq. (Supp. 1997).

The hearing in this matter was held February 2, 1998 at the Edgar A. Brown Building, Columbia, South Carolina. Based upon the evidence and the argument presented by the parties, the revocation of five licenses operated by Piedmont is ordered; no licenses operated by Andrews are revoked; the location is unaffected by the revocation, but the five machines operated by Piedmont may not be licensed for six months from the date of this order. Finally, a fine of $1500 is imposed on Piedmont and a $500 penalty is imposed upon Andrews.

II. Issues

1. Did a violation of the single place or premises requirement of S. C. Code Ann. § 12-21-2804(A) and S.C. Code Regs. 117-190 occur by a failure to have at least one separate employee on the premises during business hours?

2. Did both Piedmont and Andrews violate the single place or premises requirement of § 12-21-2804(A) and S.C. Code Regs. 117-190 by failing to have properly constructed interior walls surrounding their Class III machines?

3. For any violations of § 12-21-2804(A) and S.C. Code Regs. 117-190, is a revocation of the Class III licenses required?

4. If a revocation is imposed, is the location prohibited from using Class III machines for six months or are the machines in the location at the time of the revocation citation prohibited from being licensed for six months from the time of the revocation order?

5. If a violation of § 12-21-2804(A) and S.C. Code Regs. 117-190 occurred, who is liable for a fine, and in what amount?

III. Analysis


A. Single Place or Premise: Separate Employee


1. Positions of Parties

DOR asserts the room identified as C.D.'s Video Games did not have an employee on the premises in accordance with S.C. Code Regs. 117-190. Piedmont, the owner of the machines in the room and the occupier of the room, disagrees. Piedmont argues that an employee was in the room when the room opened. That employee, however, left without permission, gave no notice of his departure, and did not return to his job. Accordingly, Piedmont asserts that even if a violation occurred, it did not know of the violation, did not permit the violation, and should not have any licenses revoked or fines imposed.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

  1. On May 24, 1995, Piedmont acquired licenses for 18 Class III video game machines.
  2. On June 1, 1995, Piedmont acquired licenses for two Class III video game machines.
  3. On January 21, 1997, Piedmont was using five of the licensed Class III machines in an area occupied by Piedmont under the name of C.D.'s Video Games.
  4. C.D.'s Video Games is located at 1820 Highway 321, Bowling Green, South Carolina.
  5. The location is part of a video gaming business located in a structure containing two video gaming rooms.
  6. At approximately 1:30 p.m. on January 21, 1997, a SLED Agent conducted an inspection of the video gaming businesses located at 1820 Highway 321, Bowling Green, South Carolina.
  7. The inspection included walking into each area, listing the license numbers for machines located in the open game rooms, taking photographs of the location, examining the utility meters for the location, and talking to an employee at the location.
  8. Both of the two game rooms were open for business at the date and time of inspection..

9. Each room contained five Class III machines with each machine being operational.

10. Customers were playing machines in each of the game rooms.

11. At the time of the inspection, an employee was present in one game room but no employee was present in the room identified as C.D.'s Video Games.

12. The following video game machine licenses were affixed to machines located in the respective game rooms:

Piedmont Tool

& Supply

038788

038789

038776

038790

039796
C.D.'s Video Games

040695

041270

041271

041269

041268


13. Ten Class III machines were located at the single place or premises of 1820 Highway 321, Bowling Green, South Carolina.

14. As a result of the inspection, the SLED Agent issued a citation, citing Piedmont with a violation of S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190 (Supp. 1997) for operation of more than five machines in a single place or premise without an employee present.

3. Discussion

a. Statutory and Regulatory Requirements for Single Place or Premises

For machines authorized under § 12-21-2720(A)(3), i.e., Class III machines, no person may maintain licenses or permits for more than five (5) machines at a single place or premises. S.C. Code Ann. § 12-21-2804 (Supp. 1997). The statute does not explain what constitutes a single place or premise. A definition is supplied, however, by Regulation 117-190.

S.C. Code Regs. 117-190 concentrates its analysis of a single place or premises by examining the physical characteristics of the structure enclosing the Class III machines. The regulation gives particular attention to exterior walls surrounding two or more video game areas. If at least two interior structures exist (i.e., each having a proper four wall configuration) and if Class III video games are located within each interior structure, then each interior structure is a video game area. Under such circumstances the inquiry becomes whether each video game area is a single place or business allowing five machines within each area.

The answer is reached by a facts and circumstances methodology imposed by S.C. Code Regs. 117-190. Under the regulation DOR "must review all the facts and circumstances to determine if each area in reality constitutes a single place or premises for video game machines." While a facts and circumstances review is normally very general, the regulation requires the existence of four minimum but very specific facts. Indeed, a failure to meet any one of the four facts results in the video poker area not being a separate place or premises. The four factors are: (1) Does each entity or business have a separate electric utility meter? (2) Does each entity or business have at least one separate employee on the premises during business hours? (3) Does each entity or business have a separate local business license where required? (4) Does each entity or business have a separate state sales tax license?

b. Law Addressing Employee on the Premises

The issue here is whether the regulatory requirement is satisfied by each entity or business having at least one separate employee on the premises during business hours. Regs. 117-190. A difference of opinion exists on whether the employee must be within the four walls of the area in question to be "on the premises."

One view is that an employee working outside the game room is not considered "on the premises" if the Class III video game machines are operational and accessible to customers; i.e., an employee must be present in the room. (The four-walls position.) S.C. Dep't of Revenue and Taxation v. Mickey Stacks, 95-ALJ-17-0742-CC (March 8, 1996); aff'd Court of Common Pleas, Richland County, Civil Action No. 96-CP-40-0889 (March 21, 1997). A contrary view is that the criterion are met even if the employee is outside the four walls if the employee's physical position enables the employee to observe the room and the employee is performing his job functions at the employee's location. (The within-view-of-the-four-walls position). South Carolina Department of Revenue v. Great Games, Inc., Docket No. 96-ALJ-17-0204-CC (January 22, 1997). In a similar vein, a view exists that an employee's absence from the room is permissible if the absence is for a short period and the absence is for a justifiable reason, e.g., personal physical needs. (The short-legitimate-absence position). DOR v. Ace Music Company of Spartanburg, Inc., 97-ALJ-17-0309-CC (October 19, 1997).

I agree with the four-walls position and respectfully disagree with both the within-view-of-the-four-walls position and the short-legitimate-absence position. While at first blush providing exceptions to the four-wall rule may seem reasonable, closer analysis dictates otherwise.

First, relying upon the rules of statutory construction to justify exceptions to the plain language is unwarranted. The language imposes a requirement of having a "separate employee on the premises." The language is not ambiguous and must be taken in its literal and ordinary meaning. Lail v. Richland Wrecking Company, Inc., 280 S.C. 532, 313 S.E.2d 342 (Ct. App. 1984). To employ the rules of statutory construction to find that "on the premises" allows an employee to be "away from the premises" violates the principle that the rules of statutory construction are provided to remove doubt never to create doubt. See 73 Am. Jur. 2d Statutes § 146, citing Englewood Water Dist. v. Tate, 334 So.2d 626 (Fla. App. 1976).

Here, the language of the statute and the regulation is clear. The statute and regulation allow no more than five machines in a single place or premises. Where, as in this matter, at least two interior structures exist with machines inside those structures, under the regulation each interior structure is a "video game area." No video game area can acquire the status of a separate single place or premises unless an employee is "on the premises during business hours." The "premises" which the employee must be "on" is the space identified as the "video game area." An employee cannot be on the premises of an identified space if the employee is physically elsewhere. Accordingly, once the employee physically leaves the space of the video game area, the employee is no longer "on the premises."

Second, a court cannot seek ways to rewrite statutes or regulations. To depart from the plainly expressed meaning causes the tribunal to legislate rather than interpret since "the wisdom of legislation rests with the Legislature, and it is the province of the Courts to construe, not to make, the laws . . . " Creech v. South Carolina Pub. Serv. Auth., 200 S.C. 127, 146, 20 S.E.2d 645, 652 (1942). In short, an ALJ cannot add conditions to the "on the premises" language of the regulation trying to provide exceptions that seek to improve upon what the General Assembly has plainly promulgated.

Finally, the purpose of the regulation under review dictates a holding that "on the premises" means exactly what it says. The purpose of the regulation is to provide a high degree of certainty to defining a separate place or premises. The very reason for the promulgation is that no statutory definition was provided. In accordance with the purpose sought, the regulation adopts site specific criteria. Indeed, the regulation counts walls, limits openings in the walls, prevents access from one area to another, and even details the type of walls that can be used. Given the regulations's site specific analysis, the most consistent view is that the plain language of "on the premises" limits the employee to the physical space of the four walls. On the contrary, inconsistency with the regulation results if "on the premises" requires examining whether the employee's line of sight covers more than one area or whether the reason the employee is away is a proper reason. In short, the regulation is site specific and requires that "on the premises" be within the four walls of the area under review.

c. Facts of Employee on the Premises

Here, Piedmont utilizes five Class III video game machines at C.D's Video Games which is part of a video gaming business in a mall-type structure containing two video gaming rooms located at 1820 Highway 321, Bowling Green, South Carolina. On January 21, 1997, a SLED Agent conducted an inspection of the video gaming businesses. The inspection included walking into each area, listing the license numbers for machines located in the open game rooms, taking photographs of the location, examining the utility meters for the location, and talking to an employee at the location. Both game rooms were open at the date and time of inspection. Customers were in each of the game rooms. Of the open rooms, each had its door open and contained five Class III machines in each room with all machines operational. At the time of the inspection of the two game rooms, no employee was present in the game room identified as C.D.'s Video Games.

Under the facts of this case, C.D's Video Games did not have an employee on the premises at the time of the January 21, 1997 inspection. Accordingly, a violation of Section 12-21-2804(A) occurred.

4. Conclusions of Law

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

1. Machines authorized under § 12-21-2720(A)(3) are termed Class III machines.

2. No person may maintain licenses or permits for more than five Class III machines at a single place or premises. S.C. Code Ann. § 12-21-2804 (Supp. 1997).

3. For purposes of Class III machines, no statutory definition exists of "single place or premise."

4. A definition of "single place or premise" is supplied by regulation. S.C. Code Ann. Regs. 117-190.

5. The regulatory definition concentrates its analysis of a single place or premises by examining the physical characteristics of the structure enclosing the Class III machines. S.C. Code Ann. Regs. 117-190.

6. If at least two interior structures exist (i.e., each having a proper four wall configuration) and if Class III video games are located within each interior structure, then each interior structure is a video game area. S.C. Code Ann. Regs. 117-190.

7. Deciding whether the video poker area is a single place or premises requires the use of a facts and circumstances methodology since a review must consist of all the facts and circumstances to determine if "each area in reality constitutes a single place or premise for video game machines." S.C. Code Ann. Regs. 117-190.

8. The facts and circumstances review requires the existence of four minimum facts with a failure of any one of the four facts resulting in a conclusion that the video poker area is not a separate place or premise. S.C. Code Ann. Regs. 117-190.

9. One of the four required facts is that the entity or business must have at least one separate employee on the premises during business hours. S.C. Code Ann. Regs. 117-190.

10. If the Class III video game machines are operational and accessible to customers, an employee is not "on the premises" unless the employee is present in the room identified as the video poker area. S.C. Dep't of Revenue and Taxation v. Mickey Stacks, 95-ALJ-17-0742-CC (March 8, 1996), aff'd Court of Common Pleas, Richland County, Civil Action No. 96-CP-40-0889 (March 21, 1997); S.C. Code Ann. Regs. 117-190.

11. An employee is not "on the premises" when the employee is outside the four walls of the video poker area even when the employee's physical position enables the employee to observe the room and the employee is performing his job functions at the employee's location.

12. An employee is not "on the premises" even when the employee's absence from the room is for a short period and the absence is for a justifiable reason, e.g., personal physical needs.

13. The language "on the premises" is not ambiguous and must be taken in its literal and ordinary meaning. Lail v. Richland Wrecking Company, Inc., 280 S.C. 532, 313 S.E.2d 342 (Ct. App. 1984).

14. To employ the rules of statutory construction to find that "on the premises" allows an employee to be "away from the premises" violates the principle that the rules of statutory construction are provided to remove doubt never to create doubt. See 73 Am. Jur. 2d Statutes § 146, citing Englewood Water Dist. v. Tate, 334 So 2d 626. (Fla. App. 1976).

15. A court cannot seek ways to rewrite the plain language of statutes or regulations in that to depart from the plainly expressed meaning causes the tribunal to legislate rather than interpret since "the wisdom of legislation rests with the Legislature, and it is the province of the Courts to construe, not to make, the laws . . . " Creech v. South Carolina Pub. Serv. Auth., 200 S.C. 127, 146, 20 S.E.2d 645, 652 (1942).

16. The purpose of the regulation is to provide a high degree of certainty in defining a separate place or premises.

17. The view most consistent with the purpose of the regulation is applying the plain language of "on the premises" to mean that the employee must be within the physical space of the four walls constituting the video poker area.

18. Piedmont's failure to have an employee on the premises of the video poker area identified as C.D's Video Games at the time of the January 21, 1997 inspection violated the single place or premises provisions regulating the use of Class III machines. S.C Code Ann. § 12-21-2804(A) (Supp. 1997).

B. Single Place or Premise: Wall Construction


1. Positions of Parties

DOR argues the doors and windows in the interior walls are not fire-rated and thus do not meet the regulation's criteria for a single place or premises. Both Piedmont and Andrews argue DOR has not proven the interior walls are not firewalls and they further argue the doors and windows are proper.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. The building at 1820 Highway 321, Bowling Green, South Carolina is a structure consisting of four exterior walls with an entrance through a door on the front of the building.

2. Inside the four exterior walls are three rooms with all three rooms extending from the front exterior wall to the back exterior wall.

3. The center room is a common area with two interior walls and no Class III machines.

4. The room to the right is a game room known as C.D.'s Video Games having one interior wall, three exterior walls and five Class III machines.

5. The access to C.D.'s Video Games is from the common area via a glass door similar to a storm door.

6. Along the interior wall of C.D.'s Video Games is a plexiglass window approximately two feet by five feet.

7. The room to the left is a game room known as Palmetto Tool and Supply having one interior wall, three exterior walls and five Class III machines.

8. The access to Palmetto Tool and Supply game room is from the common area via a glass door similar to a storm door.

9. Along the interior wall of Palmetto Tool and Supply is a plexiglass window approximately two feet by five feet.

10. The wall construction and material used for the interior walls complied with the York County building code and was not in violation of any standards imposed by any building code or by the State Fire Marshal's office.

11. Absent the objections to the doors and windows, DOR would have found the wall a proper firewall.

12. DOR found a violation of the single place or premises provision since the doors and windows in the interior walls were not one hour fire resistant doors and windows.

13. DOR found that the lack of a one hour fire rating of the doors and windows caused the wall as a unit not to be a one hour fire resistance wall.

14. Building codes are detailed, voluminous, and related to the specialized business of construction.

15. The general public does not have a common knowledge of the building code requirements for doors and windows within a firewall.

16. DOR made no submission of a reference identifying an indisputably reliable source providing the building code requirements for doors and windows within a firewall for York County.

17. No persuasive testimony establishes the code requirements for doors and windows in a firewall for the building in dispute in York County.

18. The SLED Agent who inspected the location did not apply any building code standard for York County.

19. The SLED Agent who inspected the location denied the fire wall status due to concluding the interior doors and windows lacked a one hour fire resistance rating.

3. Discussion

a. Requirements for Wall Construction

For machines authorized under § 12-21-2720(A)(3), i.e. Class III machines, no person may maintain licenses or permits for more than five Class III machines at a single place or premises. S.C. Code Ann. § 12-21-2804 (Supp. 1996). The definition of a single place or premises provided by Regs. 117-190 concentrates its analysis of a single place or premises by examining the physical characteristics of the structure enclosing the Class III machines. The structure surrounding the machines must be a structure whose walls are either exterior walls or, if not exterior walls, the surrounding walls must be firewalls consistent with the requirements of the applicable building code. However, if no applicable building code imposes a fire wall standard, according to the regulation, a one hour fire resistance criteria is imposed. Thus, a firewall is required, the standard for fire resistance is that set by the applicable building code, and if no code applies a standard, the standard is a one hour fire resistance.

b. Proof of Inadequate Firewall

Here, DOR found a violation of the single place or premises provision since the doors and windows in the interior walls were not one hour fire resistant doors and windows. In DOR's view such a fact causes the wall as a unit not to satisfy the one hour fire resistance standard. Indeed, the testimony concerning the wall construction and material is that the wall itself complied with the York County building code and was not in violation of any standards imposed by any building code or by the State Fire Marshall's office. Thus, the fact is established that the wall itself, absent any objections to the doors and windows, is a firewall. The dispute, and the inquiry left to be answered, is whether the fire resistance status of the doors and windows causes the walls to lose their otherwise proper firewall status.

In a policy document, DOR has stated that the firewall status of the wall is not denied even for a door made of glass so long as the door meets the building code requirements for doors within a firewall. S.C Rev. Rul. 95-13 (August 1, 1995). The policy document does not say the doors and windows must be one hour fire resistant. Quite the contrary, the document is very clear that the standard for the doors and windows is not a one hour rating but rather is that which will "meet the building code requirements for doors within a firewall." Accordingly, DOR must prove the doors and windows do not meet the building code requirements of York County (or any other mandated building code) for doors and windows within a firewall for the building in dispute. See 29 Am. Jur. 2d Evidence § 127 (1994) (burden of proof generally rests with the party who asserts the affirmative of an issue).

DOR attempted two methods to prove the doors and windows do not meet the building code requirements for doors and windows within a firewall. First, DOR sought judicial notice of the building code requirements. Second, DOR presented testimony of the SLED Agent who inspected the doors and windows. I find judicial notice cannot be taken of the building code requirements for doors and windows within a firewall. I further find that the Agent's testimony does not establish what the code requirements are for such doors and windows.

1. Judicial Notice

Judicial notice of the building code requirements for doors and windows within a firewall can only be taken when sufficient notoriety attaches to the fact involved so as to make that fact assumable without proof. Moss v. Aetna Life Ins. Co., 267 S.C. 370, 228 S.E.2d 108 (1976). More particularly, to be subject to judicial notice the fact must be either of such common knowledge that it is accepted by the general public without qualification or contention, or its accuracy may be ascertained by reference to readily available sources of indisputable reliability. Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (Ct.App.1984).



Here, the building code requirements for doors and windows within a firewall are not of such common knowledge that they are accepted by the general public without qualification. Building codes are by their very nature detailed, voluminous, and related to the specialized business of construction. No reasonable basis exists to expect the general public to have any common knowledge of the building code requirements for doors and windows within a firewall.

Likewise, the building code requirements for doors and windows within a firewall is not a fact established by reference to readily available sources of indisputable reliability. Rather, no readily available source exists that provides the degree of indisputable reliability necessary for judicial notice. DOR did not provide a reference to any such standard during the hearing and a reasonable search has not revealed any state-wide building code identifying the criteria for doors and windows to be used within a firewall for the type building here in dispute. Indeed, on the contrary, the fire resistance standard for doors and windows is not readily available since the applicable standard depends upon the location of the opening in the wall and how the building is used. See for example, Fire Prevention and Life Safety-Buildings, S.C. Code Ann. Regs. 19-300.11 for hospitals, nursing homes, and intermediate care (service openings to chutes, dumbwaiters, conveyors, and other material handling systems shall not be located in corridors or passageways but shall be located in a room enclosed by construction having at least a one hour fire resistive rating; doors to such rooms shall not be less that "C" labeled, 3/4 hour fire rated; service entrance doors to chutes and to vertical shafts containing dumbwaiters, conveyors and material handling systems shall be not less than "B" labeled, 1 1/2 hour fire rated). Accordingly, no judicial notice can be taken of the building code requirements for doors and windows within a firewall for the building in dispute in York County.

2. Agent's Testimony

DOR's burden is to prove the doors and windows are not within the building code requirements for doors and windows within a firewall. The SLED Agent presented no testimony persuasively establishing any building code requirement for doors and windows in a firewall for a York County building. Rather the Agent testified that his training consisted of instructions given by employees of DOR. The testimony does not establish that the DOR instructions to the Agent represent the building code requirements for doors and windows within a firewall in York County. In fact, taken as a whole, the Agent's testimony demonstrates he did not apply any building code standard for York County. Rather, the Agent followed DOR's instructions to deny fire wall status for doors and windows that lacked a one hour fire resistance rating. Such an application is in error since Rev. Rul. 95-13 specifically requires meeting the building code requirements for doors and windows and does not mandate one hour fire resistance.

Accordingly, DOR has failed to prove what the building code requirements are for doors and windows in a firewall for York County for the building in dispute. It necessarily follows that DOR has failed to prove the doors and windows for the building in dispute do not meet the building code requirements for doors and windows in firewalls for buildings in York County. Thus, DOR has failed to establish a violation of the single place or premises requirement based upon an inadequate interior wall construction at 1820 Highway 321, Bowling Green, South Carolina.

4. Conclusions of Law

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

1. Machines authorized under § 12-21-2720(A)(3) are termed Class III machines.

2. No person may maintain licenses or permits for more than five Class III machines at a single place or premises. S.C. Code Ann. § 12-21-2804 (Supp. 1997).

3. For purposes of Class III machines, no statutory definition exists of "single place or premise."

4. A definition of "single place or premise" is supplied by regulation. S.C. Code Ann. Regs. 117-190.

5. The regulatory definition concentrates its analysis of a single place or premises by examining the physical characteristics of the structure enclosing the Class III machines. S.C. Code Ann. Regs. 117-190.

Interior walls surrounding Class III machines must be firewalls. S.C. Code Ann. Regs. 117-190.

The standard for fire resistance for these interior walls is that set by the applicable building code for firewalls. S.C. Code Ann. Regs. 117-190.

If no code provides a firewall standard, the standard for such interior walls is a one hour fire resistance. S.C. Code Ann. Regs. 117-190.

Even for a door made of glass, the firewall status of a wall is not denied so long as the door meets the building code requirements for doors within a firewall. S.C Rev. Rul. 95-13 (August 1, 1995).

The same DOR policy that applies to glass doors applies to windows.

The standard for the doors and windows in a firewall is not a one hour fire rating but rather is that rating which will "meet the building code requirements for doors within a firewall." S.C Rev. Rul. 95-13 (August 1, 1995).

Accordingly, DOR, having the burden of proof, must prove the doors and windows do not meet the building code requirements of York County (or any other mandated building code) for doors and windows within a firewall for the building in dispute. 29 Am. Jur. 2d Evidence § 127 (1994).

Judicial notice cannot be taken of the building code requirements for doors and windows within a firewall for the building in dispute in York County.

Judicial notice of the building code requirements for doors and windows within a firewall can only be taken when sufficient notoriety attaches to the fact involved so as to make that fact assumable without proof. Moss v. Aetna Life Ins. Co., 267 S.C. 370, 228 S.E.2d 108 (1976).

To be subject to judicial notice, a fact must be either of such common knowledge that it is accepted by the general public without qualification or contention, or its accuracy may be ascertained by reference to readily available sources of indisputable reliability. Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (Ct.App.1984).

The building code requirements for doors and windows within a firewall are not of such common knowledge that they are accepted by the general public without qualification.

To the degree necessary to establish judicial notice, the building code requirements for doors and windows within a firewall are not facts established by reference to readily available sources of indisputable reliability. See Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (Ct. App.1984).

The fire resistance standard for doors and windows varies depending upon the location of the opening in the wall and how the building is used. See Fire Prevention and Life Safety-Buildings, S.C. Code Ann. Regs. 19-300.11.

No judicial notice can be taken of the building code requirements for doors and windows within a firewall for the building in dispute in York County. Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (Ct. App.1984).

DOR has the burden of proving the doors and windows are not within the building code requirements for doors and windows within a firewall. S.C. Rev. Rul. 95-13 (August 1, 1995); see 29 Am. Jur. 2d Evidence § 127 (1994).

Applying a one hour fire rating to windows and doors within a firewall is erroneous since the required standard is the building code requirements for doors and windows for the county in which the building under review is located. S.C Rev. Rul. 95-13 (August 1, 1995).

DOR failed to prove what the building code requirements are for doors and windows in a firewall for York County for the building in dispute.

DOR failed to prove the doors and windows for the building in dispute do not meet the building code requirements for doors and windows in firewalls in buildings in York County.

DOR failed to establish a violation of the single place or premises requirement based upon an inadequate interior wall construction at 1820 Highway 321, Bowling Green, South Carolina.

C. Revocation


1. Positions of Parties

DOR asserts the statute requires revocation of machine licenses when the single place or premises requirement is violated. Since a violation occurred due to the lack of an employee on the premises occupied by Piedmont, DOR argues Piedmont's five machine licenses must be revoked. Piedmont argues that it is an innocent owner and knew nothing of the violation and thus cannot have its licenses revoked. Further, Piedmont argues the revocation provision applies only to the "gross proceeds" language which is no longer a part of the statute and thus no revocation is allowed.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. Piedmont's policy is not to operate a game room unless an employee is physically present in the game room.

2. At one point during the day of January 21, 1997, but prior to 1:30 p.m., an employee of Piedmont was present in the game room known as C.D.'s Video Games.

3. At some time before 1:30 p.m. on January 21, 1997, the employee left the room without asking permission from his supervisor.

4. Piedmont's management did not know the employee was no longer in the game room.

5. The employee who left his position was fired by Piedmont because he had left the game room.

3. Discussion

a. Statutory Requirements for Revocation

DOR "shall revoke the licenses of machines located in an establishment which fails to meet the requirements of this section." S.C. Code Ann. §12-21-2804(A) (Supp. 1997). Here, Piedmont argues two positions. First, a violation of 12-21-2804 cannot occur unless the violation was, at least in some degree, made knowingly. Second, the revocation language of S.C. Code Ann. § 12-21-2804 applies only to the "gross proceeds" requirement of S.C. Code Ann. § 12-21-2804 and not to the single place or premises requirement. I cannot agree with Piedmont's arguments.

1. Violation Made Knowingly

While somewhat broader language applied to machines licensed for operation during the one year period from July 1, 1993 until July 1, 1994, after July 1, 1994, DOR "may not issue nor authorize to be maintained any licenses or permits for more than five machines authorized under section 12-21-2720(A)(3) at a single place or premises." S.C. Code Ann. § 12-21-2804(A) (Supp. 1997). The General Assembly did not impose a duty of finding the violator had any degree of intention such as knowingly, intentionally or willfully. Moreover, the General Assembly has demonstrated that when it wanted to impose scienter as a part of a violation it did so by specific language. See S.C. Code Ann. §12-21-2804(F) (upon a determination that a violation is wilful, criminal prosecution may be pursued). Since the statutory language does not impose knowledge as a requirement, none can be added.

Instead of an intention to violate the law, all the statute demands is proof that a license is being maintained for more than five machines at a single place or premises. Accordingly, the fact that Piedmont did not know the employee left his post and did not approve of his leaving does not dismiss the fact that no employee was in the game room while the business was open and while the machines were available for play. Accordingly, a violation of 12-21-2804(A) occurred.

2. Gross Proceeds Requirement

Piedmont argues that the revocation provision does not apply. Rather, Piedmont asserts the revocation applies only to a violation of the requirement that the primary and substantial portion of the establishment's gross proceeds must be from a source other than the Class III machines. Piedmont argues it did not violate the gross proceeds provision and in any event the "gross proceeds" provision was declared unconstitutional by Reyelt v. South Carolina Tax Commission, 6:93-1491-3 and 6:93-1493-3 (U.S. Dist. Ct., Greenville, S.C., Nov. 15, 1993).

I disagree with Piedmont's view. The revocation is for "the licenses of machines located in an establishment which fails to meet the requirements of this section." S.C. Code Ann. § 12-21-2804(A) (Supp. 1997). The statute's use of the plural word "requirements" obviously means the licensee must meet more than one requirement and that the failure to satisfy any requirement invokes the revocation. See Emerson Elec. Co. v. Wasson, 287 S.C. 394, 339 S.E.2d 118 (1986) (the legislature's use of the plural "taxpayers" instead of "taxpayer" indicates more than one).

Here, at least two requirements are addressed in the subsection imposing the revocation. The first requirement is the single place or premises requirement. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997). The second requirement is the gross proceeds requirement. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997). Thus, even treating the gross proceeds requirement as no longer a part of the law, a failure to satisfy the single place or premises requirement still triggers the revocation. Accordingly, Piedmont's five licenses for the Class III machines located in the game room identified as C.D.'s Video Games must be revoked.

4. Conclusions of Law

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

1. DOR "shall revoke the licenses of machines located in an establishment which fails to meet the requirements of this section." S.C. Code Ann. § 12-21-2804(A) (Supp. 1997).

One requirement of S.C. Code Ann. § 12-21-2804(A) is that no more than five machines be located at a single place or premises. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997).

Piedmont violated the single place or premises requirement by not having a separate employee on the premises of the five Class III machines located in the game room identified as C.D.'s Video Games. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997).

The General Assembly did not impose a duty of finding the violator must have any degree of intention such as knowingly, intentionally or willfully having more than five machines at a single place or premises. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997).

The General Assembly demonstrated that when it wanted to impose scienter as a part of a violation it did so by specific language. See S.C. Code Ann. § 12-21-2804(F) (Supp. 1997).

Instead of an intention to violate the law, the statute demands proof that a license has been in fact maintained for more than five machines at a single place or premises. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997).

The fact that Piedmont did not know the employee left his post and did not approve of his leaving does not negate the fact that no employee was in the game room while the business was open and while the machines were available for play.

At least two requirements are addressed in the subsection imposing a revocation: the single place or premises requirement and the gross proceeds requirement. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997).

The requirement that the primary and substantial portion of the establishment's gross proceeds must be from a source other than the Class III machines is no longer a valid requirement since a final and unappealed federal court decision held the language to be unconstitutionally vague. Reyelt v. South Carolina Tax Commission, 6:93-1491-3 and 6:93-1493-3 (U.S. Dist. Ct., Greenville, S.C., Nov. 15, 1993).

The removal of the gross proceeds requirement from the law does not remove the duty to revoke the machine license for violations of the single place or premises requirement since S.C. Code Ann. § 12-21-2804(A) uses the word "requirements" when imposing the revocation for violations of S.C. Code Ann. § 12-21-2804(A). See Emerson Elec. Co. v. Wasson, 287 S.C. 394, 339 S.E.2d 118 (1986).

Even treating the gross proceeds requirement as no longer a part of the law, a failure to satisfy the single place or premises requirement triggers the revocation. S.C. Code Ann. § 12-21-2804(A)(Supp. 1997).

Piedmont's five licenses for the Class III machines identified as 040695, 041270, 041271, 041269, and 041268 must be revoked. S.C. Code Ann. § 12-21-2804(A)(Supp. 1997).

D. Period of Revocation


1. Positions of Parties

DOR asserts the revocation statute requires a prohibition on the use of any Class III machines at the location for a period of six months from the time the revocation becomes final. Piedmont argues that if a revocation is applied, no six month penalty should be imposed on the location.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. Piedmont operated five Class III machines in the game room known as C.D.'s Video Games.

2. At the time of the inspection on January 21, 1997, the location known as C.D.'s Video Games held a license issued pursuant to Chapter 36 of Title 12.

3. At the time of the inspection on January 21, 1997, the location known as C.D.'s Video Games was a licensed establishment.

3. Discussion

a. Introduction

The following language of § 12-21-2804 is in issue:

No license may be issued for a machine in an establishment in which a license has been revoked for a period of six months from the date of the revocation.

This language has produced two interpretations. DOR's interpretation is that once a license for a Class III machine in a location is revoked, the location is prohibited from having any Class III machines on its premises for a period of six months from the date of the revocation. This view is the "dead location" interpretation. Piedmont's interpretation is that once the location has a revocation of a Class III machine license, the machines within the establishment (but not the establishment itself) are prohibited from being licensed as Class III machines for a period of six months from the date of the revocation. This view is the "dead machines" interpretation. Considering the plain language of the statute and applying the legislative intent as gleaned from applicable factors, the six month revocation applies to the machines involved and not to the location involved.

b. Legislative Intent

Courts do not legislate. Rather, when asked to interpret the meaning of a statute, the task is solely that of seeking to effectuate the legislature's intent. Laird v. Nationwide Ins. Co., 243 S.C. 388, 395 S.E.2d 206 (1964). In deciding legislative intent, the first and most basic inquiry is asking whether the language of the statute is plain and unambiguous and whether the statute conveys a clear and definite meaning. If the answer is yes, no occasion exists for employing rules of statutory interpretation and the court has no right to look for or impose another meaning. Paschal v. State Election Comm'n, 317 S.C. 434, 454 S.E.2d 890 (1995).

However, where an ambiguity prevents the statute from conveying a clear and definite meaning, the court must find the legislative intent through statutory construction. See Abell v. Bell, 229 S.C. 1, 91 S.E.2d 548 (1956) ("But where the language of the statute gives rise to doubt or uncertainty as to the legislative intent, the search for that intent may range beyond the borders of the statute itself; for it must be gathered from a reading of the statute as a whole in the light of the circumstances and conditions existing at the time of its enactment.") An ambiguity arises when the meaning of the language is doubtful or provides "doubleness of meaning." Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934). See Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (language is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses.).

Here, I am not convinced that the language is devoid of a clear and definite meaning. It seems to me that a plain and unforced reading requires a dead machine result and does not support a dead location result. However, even if the statute creates an ambiguity, an inquiry into statutory construction still leads me to conclude the legislature imposed a six month revocation of machines and not of the location.

1. Plain Meaning

The plain meaning of a statute is best determined by reading the statute as a whole so that phraseology of an isolated section is not controlling. City of Columbia v. Niagara Fire Insurance Company, 249 S.C. 388, 154 S.E.2d 674 (1967). When read as a whole, S.C. Code Ann. § 12-21-2804(A) states that DOR is required to "revoke the licenses of machines located in an establishment which fails to meet the requirements of [§ 12-21-2804]." Under that language, a failure to satisfy the single place or premises requirement causes a revocation of all of the machine licenses in the establishment that failed to meet the test. As a result of that violation, an establishment becomes filled with unlicensed machines.

In fact, that is precisely what has happened in this case. Piedmont's five machines in its establishment effectively became unlicensed and those unlicensed machines were incapable of being lawfully operated until new licenses were issued. See S.C. Code Ann. § 12-21-2776 (Supp.1997) (all machines must be licensed). This factual and legal background supplies the proper context for an unforced reading of the plain language of the six month revocation.

Having revoked all of the machines in the establishment due to the revocation language addressed above, the statutory language then immediately states "[n]o license may be issued for a machine in an establishment in which a license has been revoked for a period of six months from the date of the revocation." In other words, the specific machines that lost their licenses due to the revocation are prohibited from receiving a new machine license until a six month period has elapsed.

When relying upon the plain meaning of words in a statute, the words must be applied without resorting to a subtle or forced construction to limit or expand the statute's operation. Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App.1996). The interpretation expressed above provides a plain, unforced reading answering an obvious need raised by the revocation language. Obviously, to make the revocation meaningful, a fixed period is needed. Otherwise, the owner would be able to acquire a new license the same day as the revocation and begin operating the same machine almost immediately. In my view, the six month period simply tells the owner the machine is dead for six months and serves to give teeth to the revocation of the machine license.(1)

In contrast to the plain reading of the language that supports the dead machine, a reading giving a dead location requires a forced construction. For example, to impose a six month limitation on the location requires reading additional language into the statute so that the statute states "no license may be issued for a machine TO BE PLACED in an establishment in which a license has been revoked for a period of six months from the date of the revocation." (Capitalized words added). Obviously, a court may not add words to a statute but can only apply the statutory language given by the General Assembly. Banks v. Columbia Ry., Gas & Electric Co., 113 S.C. 99, 101 S.E. 285 (1919).

Accordingly, § 12-21-2804(A) imposes a six month prohibition on either DOR issuing or an owner acquiring licenses on those Class III machines that were in an establishment at the time any machine in that establishment was revoked. No revocation is imposed on the location itself.

2. Statutory Construction

While I believe a plain reading requires a dead machine interpretation, even if resort to statutory construction is required, such an inquiry does not support a dead location view.

A commonly applied rule of statutory construction is that where the same words are used in an enactment more than once it is presumed the words have the same meaning throughout unless a different meaning is necessary to avoid an absurd result. Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984). Likewise, when the legislative body defines a term, the use of that term in the enactment must be interpreted as having the defined meaning. Windham v. Pace, 192 S.C. 271, 6 S.E.2d 270 (1939).

In the Video Game Machines Act (Act), Class III machines must be licensed under Article 19 before placement or operation on the premises of a "licensed establishment." S.C. Code Ann. § 12-21-2778 (Supp. 1997). The legislature defined "licensed establishment" as an "establishment owned or managed by a person who is licensed pursuant to Article 19 of this chapter for the location of coin-operated nonpayout video machines with a free play feature." S.C. Code Ann. § 12-21-2772(5) (Supp. 1997). To impose a location penalty, the legislature could simply have stated the establishment may not be a licensed establishment for six months. No such statement was made.

In addition to the Article 19 licensed establishments, Article 20 imposes, at a minimum, a separate and additional license for an establishment. Specifically, a location license is required since "[e]ach . . . licensed establishment must be licensed by [DOR] pursuant to Article 19 of this chapter and this article before a machine . . . is placed for public use in this State."(2) S.C. Code Ann. § 12-21-2784 (Supp. 1997) (emphasis added). The location license of Article 20 is identified as an "establishment license for machine placement." S.C. Code Ann. § 12-21-2788 (Supp. 1997). In fact, DOR is required to revoke "an establishment license for machine placement" when the placement of machines do not meet "the provisions of Article 19 of this chapter and the rules and regulations promulgated by [DOR]." Id. (3) Again, the General Assembly could have easily penalized the location by revoking the establishment license for machine placement. Finally, the location may not house Class III machines "unless the location is licensed pursuant to the provisions of Chapter 36 of Title 12." S.C. Code Ann. § 12-21-2703 (Supp. 1997). Accordingly, at least three areas of location or establishment licenses are available for revocation, but § 12-21-2804(A) chooses to revoke only "licenses of machines."

These statutes demonstrate the General Assembly was cognizant of the difference between a license for a machine and a license involving an establishment or location. In § 12-21-2804(A) the General Assembly provided for the revocation of the licenses for the machines and made no mention of revocation of an establishment license. A common sense reading shows a symmetry exists between the revocation and the period of revocation and further that the symmetry is broken by the dead location view. For example, a revocation of a machine license gives a six month machine revocation. No symmetry results from revoking a machine license and then concluding the location is penalized for six months. Had the General Assembly meant to revoke the establishment or location license it could have easily done so by specifying the revocation of a specific establishment license. Accordingly, the normal rules of statutory construction support the dead machine interpretation.

4. Conclusions of Law

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

1. No more than five machines may be located at a single place or premises. S. C. Code Ann. § 12-21-2804(A) (Supp. 1997).

DOR "shall revoke the licenses of machines located in an establishment which fails to meet the requirements of this section." S. C. Code Ann. 12-21-2804(A) (Supp. 1997).

A six month period of revocation is imposed. S. C. Code Ann. § 12-21-2804(A) (Supp. 1997).

The revocation of one machine license in an establishment violating the single place or premises requirement causes the revocation of all machine licenses at the offending establishment and creates an establishment filled with unlicensed machines. S. C. Code Ann. § 12-21-2804(A) (Supp. 1997).

Unlicensed machines cannot be lawfully operated until a new license is issued. S.C. Code Ann. §§ 12-21-2776 and 12-21-2778 (Supp. 1997).

No license may be issued for a machine in an establishment in which a license has been revoked for a period of six months from the date of the revocation. S. C. Code Ann. § 12-21-2804(A)(Supp. 1997).

Under a plain reading, DOR is prohibited from issuing a license, the prohibition extends for six months from the date a revocation is made, and the objects of the prohibition are the machines on the premises at the time of the revocation action. S.C. Code Ann. § 12-21-2804(A)(1997).

The license being revoked is a machine license and is neither a location license nor an establishment license since the statute in dispute directs a revocation of "the licenses of machines" and "[a]ll machines must be licensed by [DOR]." S.C. Code Ann. §§ 12-21-2776(A) and 12-21-2804(A)(Supp.1997).

Under the Video Game Machines Act, a plain and unforced reading of the statute imposes a six month limitation on the machine since the license revoked is a machine license. S.C. Code Ann. § 12-21-2804(A)(1997).

A location must hold a retail license since no licensed Class III machines are allowed "unless the location is licensed [by Title 12, Ch. 36]." S.C. Code Ann. § 12-21-2703 (Supp. 1997).

"Licensed establishment" means an establishment owned or managed by a person holding a Class III license. S.C. Code Ann. § 12-21-2772(4) (Supp. 1997).

To impose the six month limitation on the location when the license being revoked is a machine license removes the symmetry of the statute.

Maintaining a symmetry for a six month prohibition on locations requires language limiting the retail license, the "establishment license," or the "licensed establishment."

Revocation of a machine license imposes a six month prohibition on the machines and not on the location.

A court may not add words to a statute but can only apply the statutory language given by the General Assembly. Banks v. Columbia Ry., Gas & Electric Co., 113 S.C. 99, 101 S.E. 285 (1919).

Imposing a six month limitation on the location requires an improper reading of additional language into the statute.

F. Amount of Penalty


1. Positions of Parties

DOR asserts a penalty of $5000 is due from Piedmont as the holder of the retail license and a penalty of $5000 from Andrews as the holder of the machine license. Both Piedmont and Andrews argue the penalty is too severe.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. Piedmont's policy is not to operate a game room unless an employee is physically present in the game room.

2. At one point during the day of January 21, 1997, but prior to 1:30 p.m., an employee of Piedmont was present in the game room known as C.D.'s Video Games.

3. Andrews leased the five machines to Piedmont.

4 Management of the room in which the five Class III machines were located was in Piedmont.

5. Control of the five Class III machines in the game room known as C.D.'s Video Games was in Andrews.

3. Discussion

A violation of 12-21-2804(A) results in the imposition of a fine. S.C. Code Ann. § 12-21-2804(F) (Supp. 1997). The person liable for the fine is the person who committed the violation. S.C. Code Ann. § 12-21-2804(F) (Supp. 1997). The only violation here is that of exceeding the five machine limit for a single place or premises.

A. Person Liable

The person to whom the five machine limit applies and the person required to obtain a license for the privilege of making use of the Class III machines is the person who "maintains for use or permits the use of [Class III machines] on a place or premises occupied by him." S.C. Code Ann. § 12-21-2720(A) (Supp. 1997). Thus, finding the persons who either maintain Class III machines or who permit Class III machines on a place or premises occupied by such persons gives the parties liable for a fine.

Here, Piedmont permitted the Class III machines in the game room known as C.D.'s Video Games. Further, Andrews, the owner of the machines in the game room, is a person who maintains Class III machines for play. Thus, as long as the Class III machines are on a place or premises occupied by Piedmont and Andrews, a violation of the single place or premises requirement results in each Piedmont and Andrews being liable for a penalty. A premises is occupied when it is held for use. 67 C.J.S. Occupy (1978). Here, Piedmont uses the room for its retail business and Andrews uses the room for its leasing activity. Accordingly, both Piedmont and Andrews occupy the premises, Piedmont permits the use of Class III machines, and Andrews maintains Class III machines. Both are liable for fines.

B. Amount of Fine

Where the General Assembly authorizes a range for an administratively imposed penalty, the administrative adjudicator sitting as the fact-finder may set the amount of the penalty after a hearing on the dispute. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). When penalty disputes are part of the factual issues for decision, the fact-finder must receive evidence and make a determination on all such factual disputes arising from the contested case. S.C. Code Ann. § 1-23-350 (Rev. 1986).

Here, the evidence establishes that Piedmont was unaware of the employee's absence from the game room. In fact, as a matter of policy, Piedmont required its employees to remain in the game room. That policy was in effect at the time of the inspection. Evidence of the forcefulness of the policy is found in the fact that the employee who left the premises was fired. Under all of the circumstances here, a fine of $1500 is appropriate.

Andrews, unlike Piedmont, had no management control at the location. Rather, Andrews stands in the position of a lessor of machines to Piedmont. Even under those circumstances, however, the lessor must take steps to assure the single place or premises requirement is satisfied. The lessor cannot derive the monetary benefits of his machine license while maintaining no risk that the lessee will violate the single place or premises requirement. Accordingly, here, Andrews is liable for a penalty of $500.

4. Conclusions of Law

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

1. DOR "shall revoke the licenses of machines located in an establishment which fails to meet the requirements of this section." 12-21-2804(A) (Supp. 1997).

One requirement of 12-21-2804(A) is that no more than five machines be located at a single place or premises. 12-21-2804(A) (Supp. 1997).

As the fact-finder, the administrative law judge is empowered to impose the appropriate penalty based on the facts presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633, 634 (1991).

The administrative law judge has the authority to establish the monetary fine within an allowable range. S.C. Code Ann. § 12-21-2804(A) (Supp. 1997). S.C. Code Ann. § 12-4-30(D) (Supp. 1997).

  1. Andrews, though not primarily responsible for the management of the subject location, had an adequate interest and control of the operation of the machines to be held accountable for the operation of more than five Class III machines at a single place or premise, and therefore is liable for a fine. S.C. Code Ann. § 12-21-2804(F).
  2. Because of Andrews limited role in the management and operation of the subject location, a $500 fine is reasonable and appropriate.
  3. Piedmont was primarily responsible for the management of the subject location and, while it had a policy to maintain an employee in each game room, it failed to comply with the single place or premises requirement, and therefore is liable for a fine. S.C. Code Ann. § 12-21-2804(F).
  4. Given Piedmont's interest and control as combined with its enforced policies, a fine of $1500 is proper. S.C. Code Ann. § 12-21-2804(F).


IV. Order


The five licenses operated by Piedmont in the game room identified as C.D.'s Video Games are revoked; no licenses operated by Hugh Andrews, II are revoked; the location of Piedmont is unaffected by the revocation, but the five machines operated by Piedmont may not be licensed for six months from the date of this order; and finally a fine of $1500 is imposed on Piedmont, and a fine of $500 is imposed on Andrews.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 25th day of February, 1998

Columbia, South Carolina

1. Certainly, the dead machine view allows the location owner to buy or lease new machines, purchase new licenses and begin operation almost immediately at the same location. However, the machine revocation penalty is meaningful since the cost includes new licenses, new machines, and leaves old machines that are worthless for six months. The General Assembly provided this result and a court should not rewrite statutes to provide a "better" penalty since such matters rest solely within the wisdom of the General Assembly. Creech v. South Carolina Pub. Serv. Auth., 200 S.C. 127, 20 S.E.2d 645 (1942).

2. The additional license of Article 20 applies to other entities as well in that machine manufacturers, distributors, and operators must obtain the Article 20 license.

3. The "establishment license for machine placement" is not the retail sales tax license of S.C. Code Ann. § 12-36-510 (Supp. 1997) required by S.C. Code Ann. § 12-21-2703 (Supp 1997). The name "retail license" is well known by the legislature. Had the legislature meant "retail license" in § 12-21-2788 it would have used that name rather than the unusual name of "establishment license for machine placement." Rather, the Article 20 "establishment license" is the license required (albeit currently postponed in part until December 31, 1998) to assure Class III machines meet the technology demands of §§ 12-21-2782 and 12-21-2783. S.C. Code Ann. § 12-21-2782 (Supp. 1997).


Brown Bldg.

 

 

 

 

 

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