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. Steven E. Lipscomb, d/b/a American Amusement

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Steven E. Lipscomb, d/b/a American Amusement
 
DOCKET NUMBER:
99-ALJ-17-0326-CC

APPEARANCES:
Petitioner & Representative: South Carolina Department of Revenue, Nicholas P. Sipe, Esquire

Respondent & Representative: Steven E. Lipscomb, d/b/a American Amusement, Zoe Sanders Nettles, Esquire

Parties Present: Both parties
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case



The South Carolina Department of Revenue (DOR) seeks a fine of $1,250 for a failure to have an owner identification on a Type III video game machine. Steven E. Lipscomb (Lipscomb), the machine owner, opposes DOR's position and asserts no violation occurred since the required identification was on the machine. This disagreement places jurisdiction in the Administrative Law Judge Division. S.C. Code Ann. §§ 12-60-1310, 12-60-1320, 1-23-600 (Supp. 1998).



The hearing in this matter was held October 13, 1999 at the Edgar Brown Building, Columbia, South Carolina. Based upon the evidence and the argument presented, a fine of $1,250 is imposed.



II. Issues



Did Lipscomb's machine located at 1410(B) Edgefield Street, Greenwood, South Carolina have information attached identifying the owner or operator of that machine, and, if not, what is the applicable penalty?



III. Analysis



Owner Identification



1. Positions of Parties



DOR asserts the SLED Agent found no owner identification on the machine in question. Thus, DOR argues that a violation occurred. DOR asserts that a reduced penalty of $1,250 instead of the maximum $2,500 should be imposed. Lipscomb argues no violation occurred since the license for the machine expresses the necessary information for owner identification and further argues that if a violation occurred, a fine of $1,250 is excessive.



2. Findings of Fact



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



Lipscomb holds several licenses for Class III video game machines. In controlling his video game machines, Lipscomb has a practice designed to assure that his machines have the required owner identification. Each of his employees who visit locations housing his machines are instructed to check the machine for owner identification. Typically, Lipscomb attaches a blue and white sticker to each of his machines with the sticker identifying Lipscomb as the owner of the machine. If an employee finds a machine that has had its sticker removed, standard operating procedure requires the employee to place a new owner identification sticker on the machine.



One of Lipscomb's licenses is in use on a machine located at 1410(B) Edgefield Street, Greenwood, South Carolina. On January 7, 1999, a SLED Agent conducted an inspection of that machine. The inspection included determining whether an owner or operator identification was displayed on the machine. The Agent's investigation failed to find a blue and white identification sticker. However, the inspection revealed the machine in question had a machine license attached with the license containing the following language:



Type III

Coin Operated Device

Biennial License



3016213



Expires May 31, 2000

South Carolina Department of Revenue



No other identifying marks were on the machine.



As a result of the inspection, DOR issued a Preliminary Findings Report concluding that Lipscomb violated S.C. Code Ann. § 12-21-2748 (Supp. 1998) by failing to affix an owner identification to the Class III video game machine here in question. Further, on April 8, 1999, DOR issued a Final Determination supporting its position and imposing a fine of $1,250. Since beginning operation of video poker machines in 1993, Lipscomb has had one other instance in which a machine he owned failed to have an identifying owner sticker.



3. Conclusions of Law



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



Information identifying the owner or operator of a Class III machine must be attached to the machine. S.C. Code Ann. § 12-21-2748 (Supp. 1998). The issue here is whether the face of the biennial Type III license (which document was attached to the machine during the January 7, 1999 inspection) satisfies the requirement that the machine have attached "information identifying the owner or operator of the machine." I find the license before me fails to contain information identifying the owner or operator of the machine.



The words "information identifying the owner or operator of the machine" are plain and convey a clear meaning. Accordingly, no occasion remains for employing rules of statutory interpretation. City of Camden v. Brassell, 326 S.C. 556, 486 S.E.2d 492 (Ct. App. 1997). Rather than construction, the plain language must be applied in a manner that neither limits nor expands the statute's operation. First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 417 S.E.2d 592 (1992).



The plain language of the statute requires that the information attached to the machine must identify the owner. Here, the license number does not identify the owner. Rather, the license number merely presents an inference that the identity of the owner of the machine can be subsequently discovered from a secondary source, presumably the location at which the license numbers are recorded. In other words, the license number on the machine establishes that an owner or operator exists but does not establish the identity of the owner or operator. See e.g. Kriner v. State, 699 N.E.2d 659 (1998) (where a serial number did not itself identify the name of the gun dealer selling the gun but instead provided only a trail for tracing the identity of the gun dealer); Center to Prevent Handgun Violence v. U.S. Dept. of Treasury, 981 F.Supp. 20 (D.D.C. 1997) (where disclosing gun serial numbers under an FOIA request was not tantamount to revealing the identity of gun owners).



To read the statute to hold that the license number by itself is "information identifying the owner" requires an improper expansion of the statute beyond the plain and literal language employed. Indeed, to find that the license number alone is sufficient to satisfy the identity requirement requires rewriting the statute to read that the machine must present "information leading to the identity of the owner." 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, given the above discussed state of the law, no information identifying the owner of the machine was present. Thus, Steven E. Lipscomb failed to comply with the statutory requirement of owner identification and, therefore, violated S.C. Code Ann. § 12-21-2748 (Supp. 1998).



Having established a violation, the imposition of a penalty is appropriate. DOR's position is that even though S.C. Code Ann. § 12-21-2738 (Supp. 1998) seems to impose a penalty of $2,500, DOR seeks a lesser penalty of $1,250 based upon DOR's discretion to compromise any penalty imposed by title 12 of the South Carolina Code of Laws. S.C. Code Ann. § 12-4-320(3) (Supp. 1998). Considering the facts as a whole, a penalty of $1,250 is warranted.



Here, the facts demonstrate that Steven E. Lipscomb has only one previous violation of the owner identification statute prior to the current citation of January 7, 1999. Further, Lipscomb's standard operating procedure of reattaching removed owner identification stickers shows a good faith attempt to comply with the law. Thus, on the whole, a fine of $1,250 is appropriate.



IV. Order



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



Steven E. Lipscomb shall pay a fine of $1,250 for violating S.C. Code Ann. § 12-21-2748 (Supp. 1998).



AND IT IS SO ORDERED.





____________________________

RAY N. STEVENS

Administrative Law Judge



Dated: October 18, 1999

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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