ORDERS:
FINAL ORDER AND DECISION
This matter comes before this tribunal for a contested case hearing pursuant to S.C. Code
Ann. §§ 1-23-310 et seq. (Supp. 1997) and § 12-4-30(D) (Supp. 1997) on alleged administrative
violations. The South Carolina Department of Revenue alleged that on August 27, 1997, Respondent
violated S.C. Code Ann. § 12-21-2720(A)(3) by failing to procure licenses for four Class III
machines which it maintained for use at its bingo hall. The Department seeks a $2,500 fine for each
alleged violation for a total fine of $10,000. After notice to the parties, a hearing was conducted on
August 5, 1998.
The issues before this tribunal are (1) whether Respondent violated S.C. Code Ann. §
12-21-2720(A)(3) (Supp. 1997) and (2) if so, what is the proper penalty for such violations. Based
upon the following Findings of Fact and Conclusions of Law, this tribunal concludes that Petitioner
did not present sufficient evidence to support a finding that Respondent violated § 12-21-2720(A)(3).
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:
On August 27, 1997, South Carolina Law Enforcement Division agents Ashley Asbil and
Bobbie Jones conducted an inspection of Respondent's bingo hall at 36 Liberty Lane, Greenville,
South Carolina. Upon their arrival on the date of inspection, Agents Asbil and Jones introduced
themselves as SLED agents to the sole clerk on duty. Five Class III machines, licensed pursuant to
S.C. Code Ann. § 12-21-2720(A)(3), were located in the hall immediately to the left of the entrance.
After inspecting these machines, the agents asked the clerk whether there were any other machines
on the premises. The clerk indicated that there were additional machines in a room at the back of
the hall.
The agents found a small room with two doors, one of which was open and had a sign on it
which said, "Video Game Room." The lights were on in the room and it contained five additional
Class III machines. Of the five machines, two had self-generated electronic messages displayed on
the screens which said, "Temporarily Out of Service." Two more of the machines had handwritten
paper signs affixed which said, "Out of Order," and the money door of the fifth machine was open.
With the exception of the fifth machine, all of the other machines had stools in front of them.
Respondent's employee told the agents that "the room" was used on the weekends when bingo games
were held at the location. None of the machines had a license affixed. The agents inserted money
and played two of the machines.
Prior to leaving the premises, the agents talked to Mr. Chapman, the Chief Executive Officer
of the business, who informed them that he was trying to wait until November before getting new
licenses. The agents issued Respondent a citation for violating § 12-21-2720(A)(3) by failing to
procure licenses for four Class III machines maintained for use. The agents did not issue a citation
for the fifth machine, as they believed this machine to be in disrepair.
CONCLUSIONS OF LAW AND ANALYSIS
Pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1997) and S.C. Code Ann. § 1-23-320
(Supp. 1997), the Administrative Law Judge Division has jurisdiction to hear this case.
S.C. Code Ann. § 12-21-2720(A)(3) provides:
(A) Every person who maintains for use or permits the use of, on a place or
premises occupied by him, one or more of the following machines or devices shall
apply for and procure from the South Carolina Department of Revenue a license
effective for two years for the privilege of making use of the machine in South
Carolina and shall pay for the license a tax of fifty dollars for each machine in item
(1), two hundred dollars for each machine in item (2), and four thousand dollars for
each machine in item (3):
. . .
(3) a machine of the non-payout type, in-line pin game, or video game with free
play feature operated by a slot in which is deposited a coin or thing of value except
machines of the non-payout pin table type with levers or "flippers" operated by the
player by which the course of the balls may be altered or changed.
S.C. Code Ann. § 12-21-2720(A)(3) (Supp. 1997) (emphasis added).
Whether this tribunal finds Respondent in violation of the law in this case hinges on whether
it determines that Respondent "maintained for use" the Class III machines in question. The
definition of "maintain" is "to keep up or carry on; continue; to keep in an existing state." American
Heritage College Dictionary 817 (3rd. ed. 1993). "Use" is defined as "the act of using; the
application or employment of something for a purpose; the condition or fact of being used." Id. at
1487.
As the moving party, Petitioner Department of Revenue bears the burden of proving by a
preponderance of the evidence that Respondent violated § 12-21-2720(A) by failing to procure
licenses for four Class III machines maintained for use at its bingo hall.
The preponderance of the evidence "is evidence which is of the greater weight or more
convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary 1182
(6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and
compared with that opposed to it, has more convincing force and produces in the mind the belief that
what is sought to be proved is more likely true than not true." Alex Sanders, et al. South Carolina
Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228
S.C. 149, 89 S.E.2d 225 (1955)).
In the instant case, this tribunal does not find that the evidence has convincing force to
establish that what is sought to be proved is more likely true than not true. That is, the evidence does
not indicate that Respondent more than likely maintained the machines for use. The mere presence
of the machines without licenses affixed is not necessarily violative of the statute.
In this case there are unanswered questions that would call for speculation, thus precluding
this tribunal from finding a violation. Petitioner established that at least two of the machines
accepted money and were played by SLED agents. However, when this tribunal considers that the
machines had "Out of Order" signs posted and money falling out of one of the machines, it appears
less likely that the public had access to these machines. Even though the agents played two of the
machines, it is not evident that the machines were accessible to the general public, as the agents
gained access after they had identified themselves as SLED agents and inquired whether there were
any other machines on the premises. Additionally, while the clerk stated that "the room" was used
on the weekends when bingo games were held, it is not clear from her statement that the machines
were used. Further, the fact that management intended to license the machines in November could
easily be construed to mean that this is when the machines would actually be used, as opposed to
meaning that the machines were being currently maintained and used without licenses.
Certainly, "[a]ny fact in issue may be established by circumstantial evidence,(1)
if the
circumstances, which must themselves be proved, lead to the conclusion with reasonable certainty."
McCready v. Atlantic Coast Line R. Co., 212 S.C. 449, 455, 48 S.E.2d 193, 196 (1948) (emphasis
added). However, under these circumstances, without more concrete and convincing evidence, this
tribunal cannot conclude that these machines were maintained for use, as such a finding would rest
on conjecture, suspicion, or supposition.(2)
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the citation the Department issued to Respondent for violation of § 12-21-2720(A)(3) is dismissed.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
November 5, 1998
Columbia, South Carolina
1. Circumstantial evidence means:
. . . proof that does not actually assert or represent the proposition
in question, but that asserts or describes something else, from
which the trier of fact may either (1) reasonably infer the truth of
the proposition, in which case the evidence is not only relevant
under [the rules of evidence] but is sufficient as well, or (2) at least
reasonably infer an increase in the probability that the proposition
is in fact true, in which case the evidence is relevant under [the
rules of evidence] (assuming that the proposition is of consequence
to the determination of the action) but may not be sufficient by
itself to create a question for the trier of fact to decide.
(footnotes omitted). Gastineau v. Murphy, 323 S.C. 168, 178-179, 473 S.E.2d 819, 826 (Ct. App.
1996) (quoting 29 Am. Jur. 2d Evidence § 313 (1994)).
2. The test for the sufficiency of a proffer of circumstantial evidence to warrant a finding is
as follows:
. . . the circumstances must lead to the conclusion with reasonable
certainty, and must have sufficient probative value to constitute the
basis for a legal inference, and not for mere speculation. The facts
and circumstances shown should be reckoned with in the light of
ordinary experience, and such conclusions deduced therefrom as
common sense dictates. The existence of a fact or facts cannot rest
in speculation, surmise or conjecture.
Gastineau v. Murphy, 323 S.C. 168, 179, 473 S.E.2d 819, 826 (Ct. App. 1996) (quoting Leek v.
New South Express Lines, 192 S.C. 527, 7 S.E.2d 459 (1940)). |