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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. H&P Enterprises, Inc., d/b/a Ace Music Co.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
H&P Enterprises, Inc., d/b/a Ace Music Co.
 
DOCKET NUMBER:
98-ALJ-17-0444-CC

APPEARANCES:
Nicholas P. Sipe, for Petitioner

Herbert A. Blackwell, Owner, for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1997) and S.C. Code Ann. § 1-23-600 (Supp. 1997) upon Respondent's request for a contested case hearing. South Carolina Department of Revenue ("DOR") seeks a $2,500 monetary penalty against Respondent H & P Enterprises, Inc. ("H & P") for failure to attach owner identification information on a single Class III video poker machine pursuant to S.C. Code Ann. § 12-21-2748 (Supp. 1997). After notice to all parties, a hearing was conducted on October 26, 1998. Based upon the evidence presented and the applicable law, a $1,000 penalty is imposed. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. All parties were given notice of the date, time and place of the hearing.

2. H & P holds two licenses for Class III video game machines.

3. These licenses are in use on machines at "Shacks Bar and Grill," located at 2610 S. Anderson Road in Catawba, South Carolina ("Shacks").

4. On April 27, 1998, SLED agents conducted an inspection of the video gaming machines at Shacks.

5. The inspection included determining whether an owner or operator identification was

displayed on the machines. SLED agents found that one of the machines at Shacks did not have an owner or operator identification affixed to it.

6. On April 27, 1998, SLED issued its report finding that H & P violated S.C. Code Ann. § 12-21-2748 by failing to affix an owner identification to one of the Class III video game machines located at Shacks.

7. On July 1, 1998, DOR issued a Final Determination on the alleged failure to affix owner identification to one Class III video game machine at Shacks.

8. According to H & P's owner, Herbert Blackwell, an identification sticker was taped inside the glass cover of the screen of the machine in question, but that the tape fell off and the sticker fell down behind the screen of the machine.

9. H & P Enterprises, Inc. has only been cited on one previous occasion occurring in 1994. It is undisputed that the violation was the same as in this case. DOR reduced the fine that was paid by H & P.

10. Currently, H & P owns two Class III licensed machines.

11.. H & P will be liquidated at the end of this year.

CONCLUSIONS OF LAW

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

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C.

Code Ann. § 12-4-30(D) (Supp. 1997) and S.C. Code Ann. § 1-23-600 (Supp. 1997).

2. Video poker machines authorized under S.C. Code § 12-21-2720(A)(3) (Supp. 1997) are termed Class III machines.

3. Licensed Class III machines must have information identifying the owner or operator of the machine attached on an area of the machine visible for inspection purposes. S.C. Code Ann. § 12-21-2748 (Supp. 1997).

4. On April 27, 1998, H & P violated S.C. Code Ann. § 12-21-2748 (Supp. 1997) by failing to have identifying information attached to one of its machines at Shacks.

5. As the finder of fact, it is the administrative law judge's prerogative "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).

6. A person who violates S.C. Code Ann. § 12-21-2748 is subject to a fine of up to $2,500. S.C. Code Ann. § 12-21-2738 (Supp. 1997). DOR argues that the $2,500 amount specified in the statute is mandatory. There is no mandatory language, however, in the statute, which reads, in pertinent part, as follows: " . . . the applicable penalty amount is two thousand five hundred dollars." Therefore, this tribunal has the discretion to reduce the penalty amount under appropriate circumstances.

7. A $1,500 fine is appropriate under the circumstances presented in this case based upon the prior violation history of H & P, the likelihood that such a violation will not be repeated because of the currently number of Class III machines and the pending dissolution of the corporation.

ORDER

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

ORDERED that Respondent H & P Enterprises, Inc. violated the provisions of S.C. Code Ann. § 12-21-2748 (Supp. 1997) by failing to have owner or operator identification affixed to a Class III machine. Respondent is fined $1,500, payable within ten (10) days of the date of this Order.

AND IT IS SO ORDERED.

ALISON RENEE LEE

Administrative Law Judge

November 17, 1998

Columbia, South Carolina


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