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. The Schafer Company, Inc., d/b/a South of the Border Shops, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
The Schafer Company, Inc., d/b/a South of the Border Shops, Inc.
 
DOCKET NUMBER:
99-ALJ-17-0429-CC

APPEARANCES:
Carol I. McMahan, Esquire for the Petitioner

J. Boone Aiken, III, Esquire for the Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 12-6-450 (Supp. 1999), 12-54-40(H) (Supp. 1999), 12-21-2720(A)(3) (Supp. 1999), and 12-21-2791 (Supp. 1999) for a contested case hearing. The Respondent challenges the issuance of the South Carolina Department of Revenue's Final Determination dated July 28, 1999 assessing a Five Hundred ($500.00) penalty for tendering more than $125.00 from one location within a twenty-four hour period in violation of S.C. Code Ann. § 12-21-2791 (Supp. 1999). A hearing was held on this matter on April 11, 2000 at the Administrative Law Judge Division, 1205 Pendleton Street, Suite 224, Columbia, South Carolina.



FINDINGS OF FACT

Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence and the Petitioner's witness, SLED agent Williamson, I find by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.

2. South of the Border Shops is a business location within a cluster of such locations known as the Sliver Slipper. South of the Border Shops contains five (5) Class III video poker machines.

3. On March 24, 1999, SLED agent Pam Williamson, an officer with the South Carolina Law Enforcement Division (SLED) entered South of the Border Shops and proceeded to play the video poker machines.

4. SLED Agent Williamson received two printed tickets from the same machine within South of the Border Shops, one in the amount of One Hundred Twenty Five ($125.00) Dollars and the other in the amount of Fifteen ($15.00) Dollars.

5. The SLED agent immediately presented these two tickets to the cashier and received a total of One Hundred Forty ($140.00) Dollars in cash.

6. On March 24, 1999, SLED issued the Respondent a Preliminary Findings Report for a violation of the Video Game Machines Act.

7. On July 28, 1999, the Petitioner issued its Final Department Determination citing the Respondent for a violation of S.C. Code Ann. § 12-21-2791 (Supp. 1999) and imposing a penalty of Five Hundred ($500.00) Dollars.

8. On August 18, 1999, the Respondent filed its request for a contested case hearing before the Administrative Law Judge Division.



CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 12-21-2791(Supp. 1999) provides that "[A]ny location which operates or allows the operation of coin-operated machines pursuant to Section 12-21-2720(A)(3) which provides payouts shall limit the cash payout for credits earned for free games to two thousand five hundred credits a player a location during any twenty-four hour period. The cash value of credits for each free game is limited to five cents" (emphasis added).

3. In applying the language of a statute, words must be given the plain and ordinary meaning, without resorting to a forced construction to enlarge or restrict the statute's operation and application. Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996); Paschal v. State Election Comm'n, 317 S.C. 434, 454 S.E.2d 890 (1995). "[W]e . . . hold that Section 12-21-2791 states exactly what it means. The statute is not ambiguous. [T]he $125 limit is a $125 per 24-hour period limit." Gentry v. Yonce, 337 S.C. 1, 522 S.E.2d 137 (1999).

4. The SLED agent's receipt of $140.00 from the same machine at the same location within a twenty-four time period is a violation of S.C. Code Ann. 12-21-2791 (Supp. 1999).

5. S.C. Code Ann. § 12-54-43 (Supp. 1999) provides "a person who is liable to obtain a license or purchase stamps for identification purposes, who fails to obtain or display the license properly, or who fails to affix the stamps properly, or who fails to comply with statutory provisions, is subject to a penalty of not less than fifty dollars nor more than five hundred dollars for each failure" (emphasis added).

6. Because the Respondent was required to obtain a retail license in order to allow or operate Class III machines on the premises, the penalty provisions of S.C. Code Ann. § 12-54-43 (Supp. 1999) apply to the violation at issue.

6. I conclude that Fifty ($50.00) Dollars is the appropriate penalty for this violation.



ORDER

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

ORDERED that the Respondent pay Fifty ($50.00) Dollars to the South Carolina Department of Revenue for tendering payments in excess of $125.00 from one location in one twenty-four hour period in violation of S.C. Code Ann. § 12-21-2791 (Supp. 1999).

AND IT IS SO ORDERED.





_____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



April 17, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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