SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before me for a hearing pursuant to S. C. Code Ann. §§ 1-23-310, et seq. (Supp. 1998) and S. C. Code Ann. § 12-4-30 (D) (Supp. 1998) on citations issued by the Department of Revenue ("Department") against Greenville Lodge No. 858, The Benevolent and Protective Order of Elks and Ramon J. Ashy, Greenwood County Grassroots Committee and Ramon J. Ashy, Camp Opportunity, Inc. and Ramon J. Ashy, Anderson County Lodge # 10, Fraternal Order of Police, and Ashy International, Inc., and S. C. Association for Blind Athletes and Ramon J. Ashy. Ramon J. Ashy and Ashy International, Inc. were bingo promoters.

In the violation reports and the Department's Determination Letters, it is alleged that the Respondents violated S. C. Code Ann. §§ 12-21-3990 (A) (Supp. 1998) and 12-21-4030 (A) (Supp. 1998) by: (1) selling bingo cards to players for more than or less than their face value, not at the face value, (2) awarding "Bingo Bucks" in lieu of cash as the prize in a bingo game, (3) allowing the winner of a bingo game known as "Pop's Pick" or "Pick Six" to choose one envelope out of a number of envelopes after the play of a game, each envelope containing a set award of cash, and (4) allowing a player to trade an envelope won after a game for another envelope offered by the caller.

The Department assessed a monetary penalty of $500.00 for the alleged violation in each case, except the case against Camp Opportunity, Inc., and Ramon J. Ashy, wherein the Department assessed a monetary penalty of $1,000.00.

Respondents deny and contest the alleged violations, which necessitates this contested case hearing before the Administrative Law Judge Division. After notice to the parties, a hearing was conducted at the offices of the Administrative Law Judge Division in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, stipulation of facts and arguments presented at the hearing of this matter and in pretrial legal memoranda, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The Administrative Law Judge Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties.

As to Docket No. 99-ALJ-17-0464-CC

3. Respondent, Greenville Lodge No. 858, The Benevolent and Protective Order of Elks is a nonprofit charitable organization which was incorporated in South Carolina. It holds a Class B Bingo License (# 80000601-6) to conduct business. It is only authorized to offer prizes not exceeding $8,000.00 per session.

4. On October 29, 1998, the date of the alleged violation, Respondent was doing business at 1314 Cedar Lane Road, Greenville, South Carolina as "Pop's Buncombe Bingo".

5. Respondent, Ramon J. Ashy, was the bingo promoter at Pop's Buncombe Bingo on the date of the alleged violation. He held Promoter License # 80008200-4.

6. On October 29, 1998, several "Undercover Bingo Players" conducted an inspection at Pop's Buncombe Bingo at 1314 Cedar Lane Road, Greenville, South Carolina. They paid the $5.00 statutorily mandated entrance/admission fee and purchased the early-bird program and game program. The cost for the two packs was $12.00. They stayed at the location from approximately 6:30 p.m. until the session ended at approximately 12:00 p.m. The total payout of prizes for the session was $5,740.00.

7. During the evening bingo games were played at the location. Prior to the beginning of a bingo game where the prize would be Bingo Bucks, the caller would announce that to the players. Bingo Bucks are coupons which are green in color and look like a miniature Two Dollar bill. Respondent's Exhibit # 1. Twenty-five Bingo Bucks or Bingo Bucks coupons, each representing a value of $2.00, would be given to the winner of the game in lieu of cash in the sum of $50.00 or any other form of merchandise.

8. Each bingo buck has a monetary value of $2.00, good only at the bingo location. It may be used to purchase $2.00 worth of game cards, $2.00 worth of refreshments at the snack bar or could be cashed in at any time at the location for $2.00.

9. Department seeks a monetary penalty of $500.00 jointly and severally against both Respondents, Greenville Lodge No. 858, The Benevolent and Protective Order of Elks and the promoter, Ramon J. Ashy. It asserts that the awarding of Bingo Bucks does not comport with any reasonable understanding of the word "prize"; that a prize must consist of a certain sum of cash or an item of merchandise.

As to Docket No. 99-ALJ-17-0465-CC

10. Respondent, Greenwood County Grassroots Committee is a nonprofit charitable organization which does business as "Pop's Border Bingo" at 51 Lakeside Circle, Fair Play, South Carolina. It holds a Class B Bingo License (#80000157-4) to conduct business. It is only authorized to offer prizes not exceeding $8,000.00 per session.

11. Respondent, Ramon J. Ashy was the bingo promoter on the date of the alleged violation on November 9, 1998. He held Promoter License # 80008292-3.

12. On November 9, 1998, several Undercover Bingo Players conducted an inspection on the location of Pop's Border Bingo. They began their session at the location at 6:30 p.m. and left the location at approximately 12:00 p.m. Each of them played games at the location.

13. The total payout of prizes for the evening at the location was $5,955.00.

14. During the evening various bingo games were played at the location, including those where twenty-five Bingo Bucks valued at $2.00 each were awarded as the prize.

15. The Department seeks a monetary penalty of $500.00 jointly and severally against both Respondents, Greenwood County Grassroots Committee and Ramon J. Ashy. It asserts that the

awarding of Bingo Bucks does not comport with any reasonable understanding of the word "prize"; that a prize must consist of a certain sum of cash or an item of merchandise.

As to Docket No. 99-ALJ-0466-CC

16. Respondent, Camp Opportunity, Inc., is a nonprofit charitable organization which was incorporated in South Carolina. It holds a Class B Bingo License (# 80000182-3) to conduct business. It was authorized to offer prizes which do not exceed $8,000.00 per session.

17. On November 20, 1998, the date of the alleged violation, Respondent was doing business at 36 Liberty Lane, Greenville, South Carolina as "Pleasantburg Bingo".

18. Ramon J. Ashy was the bingo promoter at Pleasantburg Bingo on the date of the alleged violation. He held Promoter License # 80008316-5.

19. On November 20, 1998, several "Undercover Bingo Players" conducted an inspection at Pleasantburg Bingo at 36 Liberty Lane, Greenville, South Carolina. They entered the location at 6:00 p.m., purchased a game program for $12.00, a packet for $7.00 and paid the $5.00 entrance or admission fee. Eight Bingo Bucks games were played during the session which lasted until 1:00 a.m. The total payout of prizes for the evening was $8,220.00.

20. Also, a game titled "Pick Six" or "Pop's Pick" was played during the session. The winner of the game could choose one of thirteen envelopes. Money values in the envelopes ranged from $50.00 to $500.00. After the winner chose an envelope, he was handed the envelope and it was opened. There was no opportunity to trade in the envelope for another one once it was handed to the winner.

. 21. Each Bingo Buck had a monetary value of $2.00. It could be used to purchase $2.00 worth of game cards or $2.00 worth of refreshments at the snack bar, or it could be cashed in for $2.00 at any time prior to the owner departing Pleasantburg Bingo.

22. The Department seeks a monetary penalty of $1,000.00 jointly and severally against both Respondents, Camp Opportunity, Inc., and Ramon J. Ashy. It asserts that the awarding of Bingo Bucks does not comport with any reasonable understanding of the word "prize"; that it is the equivalent of giving away free bingo cards. Further, the Department alleges that the prize which may be awarded to the winner of a bingo game must consist of a certain sum of cash or be an item of merchandise.

23. Further, the Department alleges that the game "Pick Six" equates to a game of chance other than bingo, in that there are the elements of prize, chance and consideration.

As to Docket No. 99-ALJ-17-0467-CC

24. Respondent, Anderson County Lodge # 10 Fraternal Order of Police, is a nonprofit charitable organization. It holds a Class B Bingo License (# 80000120-8) to conduct business. It was authorized to offer prizes not exceeding $8,000.00 per session.

25. On November 21, 1998, the date of the alleged violation, it was doing business at 108 Putt Putt Drive, Anderson, South Carolina as "Putt Putt Bingo".

26. Ashy International, Inc. was the bingo promoter on the date of the alleged violation and held Promoter License # 80008323-6.

27. On November 21, 1998, several "Undercover Bingo Players" conducted an undercover inspection at Putt Putt Bingo located at 108 Putt Putt Drive, Anderson, South Carolina. They began the session at 6:00 p.m. and they left when the session ended at 1:00 a.m. When the players entered the location, they purchased a game program for $13.00, a packet for $8.00 and paid the $5.00 admission fee.

28. Three Bingo Bucks games were played at Putt Putt Bingo during the November 21, 1998 session. The total amount of prizes awarded to winners on November 21, 1998 was $7,700.00.

29. The Department seeks a monetary penalty of $500.00 jointly and severally against both Respondents, Anderson County Lodge #10, Fraternal Order of Police and Ashy International, Inc. It asserts that the awarding of Bingo Bucks does not comport with any reasonable understanding of the word "prize" as used in S. C. Code Ann. § 12-21-3990 (A) (3) (Supp. 1998).

As to Docket No. 99-ALJ-17-0468-CC

30. Respondent, S.C. Association for Blind Athletes, is a nonprofit charitable organization. It holds a Class B Bingo License (# 80000098-6) to conduct business. It is authorized to award prizes not exceeding $8,000.00 per session.

31. On October 22, 1998, the date of the alleged violation, Respondent was doing business at 3131 North Main Street, Anderson, South Carolina as "Pop's Anderson Mall."

32. Ramon J. Ashy was the bingo promoter on the date of the alleged violation. He held Promoter License # 80008257-6.

33. On October 22, 1998, several "Undercover Bingo Players" conducted an inspection at Pop's Anderson Mall at 3131 North Main Street, Anderson, South Carolina. They began the session at 6:00 p.m. and left when the session ended at 12:15 p.m. Upon entering the location they purchased the early-bird program and the game program; the total cost for the packs was $17.00. They also paid the $5.00 entrance/admission fee when they entered.

34. The total amount of prizes awarded by Respondent on October 22, 1998 was $6,381.00.

35. During the evening various bingo games were played, including five Bingo Bucks games. Each Bingo Buck has a monetary value of $2.00 and could be used to purchase $2.00 worth of game cards, $2.00 worth of refreshments at the snack bar or could be cashed in at any time at the location for $2.00. Also, players participated in a game called "Pop's Pick" or "Pick Six". In these games, the winner could choose one envelope from 16 envelopes. Each envelope contained a different dollar prize; the minimum dollar prize was $50.00, others had larger dollar prizes enclosed. The winner of the game would decide which envelope he wished and the dollar amount stated inside that envelope would be his prize. Once the winner selected an envelope, he could not exchange that envelope for another. After selection, the envelope was opened and the dollar amount of the prize was determined at that moment.

36. The Department seeks a monetary penalty of $500.00 jointly and severally against both Respondents, South Carolina Association of Blind Athletes and Ramon J. Ashy. It asserts that the game "Pop's Pick Six" is a game of chance and contains the elements of a lottery.

DISCUSSION

Historical Background/Regulatory Framework

The elements of a "lottery" or a scheme in the nature of a "lottery" are the giving of a prize, by method involving chance, for a consideration paid by the participants. Darlington Theatres, Inc., v. Coker, 190 S.C. 282, 2 S.E.2d 782 (1939). Bingo is a lottery and it is gambling. Bingo Bank, Inc. v. Strom, 268 S.C. 498, 234 S.E.2d 881 (1977). Prior to 1975, there was no right to conduct bingo in South Carolina, as it was prohibited by the South Carolina Constitution. Further, the Federal Constitution did not provide any fundamental right to gamble. Lewis v. U. S., 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955). The power of the state to suppress gambling was and is practically unrestrained. Ah Sin v. Wittman, 198 U. S. 500, 25 S. Ct. 756, 49 L. Ed. 1142 (1905).

However, in 1975 bingo was legalized in South Carolina by amending Article 17, Section 7 of the South Carolina Constitution. The section, as amended, reads as follows:

No lottery shall ever be allowed or advertised by newspapers, or otherwise, or its tickets be sold in this State. The game of bingo, when conducted by charitable, religious or fraternal organizations exempt from Federal income taxation or when conducted at recognized annual State and County fairs, shall not be deemed a lottery prohibited by this section.

After only seven years, the General Assembly scrapped the Bingo Act passed in 1989 and replaced it with The South Carolina Bingo Tax Act of 1996.⁽¹⁾ The 1996 Act is a comprehensive statutory scheme which regulates bingo games in South Carolina. The Bingo Tax Act is a validly enacted regulation of legalized gambling passed by the South Carolina Legislature in accordance with its police powers. Article 24, titled "Regulation of Bingo Games" is found in Chapter 21 of Title 12, which is the chapter dealing with the Stamp and Business License Tax.

Organizations may now conduct bingo in this state after obtaining a license. This license, however, confers no property right. It is simply a permit issued pursuant to the police power of this state. Unlicensed bingo is punishable under Code § 16-19-10 (Supp. 1998). Bingo may only be conducted in accordance with the restrictions imposed by the legislature. Feldman v. South Carolina Tax Comm'n, 203 S. C. 49, 26 S. E. 2d 22 (1943). An organization must be charitable, religious, or fraternal in order to conduct bingo. The earnings or income from bingo must be used for those purposes.

This bingo licensing scheme mandated by the legislature requires that taxes must be paid and that promoters and charitable organizations must obtain licenses. The State of South Carolina has a legitimate interest in limiting the monetary value of prizes given to the winners of bingo games. Crowds throng to events that promise large prizes and crowd control is a governmental function. Furthermore, the State, in protecting the public health and welfare, must regulate traffic and maintain the public peace. In addition, the State has an interest in protecting its people from unlimited lotteries. Prize limitations reduce the likelihood of extensive gambling sessions being held under the guise of raising funds for charity.

Since October 1, 1989, the South Carolina Tax Commission and its successor, the South Carolina Department of Revenue, has administered and enforced the bingo laws in South Carolina. The Bingo Tax Act of 1996 vested in the Department of Revenue plenary authority to regulate bingo, particularly with respect to the manufacture, distribution and sale of bingo paper, and strengthened the accounting and reporting requirements and limitations first introduced in the 1989 Act. It also imposed new, more stringent licensing requirements. Administration of these laws includes not only the collection of taxes, but the enforcement of gambling laws.

The game of bingo is not a lottery when (1) a nonprofit organization is conducting the game and has completed an application and had it approved by the Department; (2) the promoter is licensed properly with the Department; (3) the nonprofit organization had provided to the Department a certified copy of the exemption statement from the Internal Revenue Service; and (4) when the game is conducted in accordance with the provisions of § 12-21-3990 and § 12-21-4000 and approved cards are used. § 12-21-3940 outlines the information required to be included on the written application to be submitted to the Department, the time allotted for the Department to approve the application and for its renewal, when required. § 12-21-3950 defines the requirements for a person to obtain a license for the privilege of engaging in the business as a bingo promoter. § 12-21-3970 states that a promoter's license is required for each licensed nonprofit organization for which the promoter manages, operates, or conducts bingo. § 12-21-3960 provides that the promoter and the nonprofit organization are jointly and severally liable for all taxes, penalties, interest, and fines imposed by Article 21 and Chapter 54 of Title 12.

There are six classes of bingo licenses authorized for issuance by the Department. They are enumerated as AA, B, C, D, E and F. See § 12-21-4020. Most nonprofit organizations in South Carolina hold Class B licenses which do not limit the dollar amount of the prize per game. This class of license also limits the total payout per session to $8,000.00 and the number of sessions each week to three. These licensees are required to have a promoter and the majority of the charitable organizations have hired bingo professionals to operate the bingo games for them. Procedures governing the play of games is outlined in § 12-21-4000 and the manner of playing bingo is described in § 12-21-3990.

As a result of the legalization of bingo and the passage of various statutory provisions regulating the play of bingo, the Department has issued licenses and has enforced the provisions of the Act by citing various licensees for noncompliance.

Bingo Bucks

In the instant cases, the Department's agents have cited the Respondents for two distinct violations of § 12-21-3990 (Supp. 1998). First, the Department alleges that various Respondents in these cases have, by awarding to the winner of a game "Bingo Bucks," provided a reward which does not comport with the meaning of the term "prize" as authorized pursuant to S. C. Code Ann. § 12-21-3990 (A) (3) (Supp. 1998).

The Department argues that the term "prize" in the statute contemplates only cash or merchandise, and that Bingo Bucks are neither cash nor merchandise. In the Department's Determination Letters issued to the Respondents in this case, the Department asserts that Bingo Bucks cannot be cashed in and are not redeemable for cash. The Department alleges that the Bingo Bucks can only be exchanged for bingo cards. However, the evidence in these cases indicates that

the "Bingo Bucks" equate to cash. They can be cashed in by the winner or holder at any time for cash, for refreshments or for other bingo cards.

In construing a statute, its words should be taken in their ordinary and popular significance unless there is something in the statute requiring a different interpretation. Santee Cooper Resort v. S.C. Public Serv. Comm., 298 S.C. 179, 184, 379 S.E.2d 119, 122 (1989) (citing Hatchett v. Nationwide Mutual Insurance Co., 244 S.C. 425, 137 S.E.2d 608 (1964)). Where the legislature elects not to define the term in the statute, the court will interpret the term in accord with its usual and customary meaning. Ex Parte Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d 404 (1994). The court must then apply that term according to its literal meaning. Carolina Power & Light Co. v. City of Bennettsville, 314 S.C. 137, 442 S.E.2d 177 (1994); Holley v. Mount Vernon Mills, Inc., 312 S.C. 320, 440 S.E.2d 373 (1994).

"Prize" is defined as "(1) something offered or given to the winner of a contest; (2) something won in a game of chance, lottery, etc.; (3) a reward, premium, or the like; (4) anything worth striving for; any enviable or highly valued possession." Webster's New World College Dictionary, Third Edition, 1997, p. 1072. The Third Edition of The American Heritage College Dictionary , at page 1089, defines "prize" as "1. Something offered or won as an award for superiority or victory, as in a contest or competition; 2. Something worth striving for; a highly desirable possession." The testimony and evidence produced at the hearing was overwhelming that the Bingo Bucks are the equivalent to cash. Accordingly, I find this argument by the Department is without merit and that the giving of "Bingo Bucks" to bingo game winners comports with the meaning of a prize pursuant to S. C. Code Ann. § 12-21-3990 (A) (3) (Supp. 1998), as long as they can be cashed in at any time. None of the remaining arguments of the Department as to "Bingo Bucks" need be addressed.

Pop's Pick/Pick Six

Second, the Department posits that the play of the game "Pop's Pick" or "Pick Six" equates to a game of chance other than bingo. The Department argues that by choosing a prize from among a number of envelopes, a player is taking a chance to win different prizes and that such play is the equivalent of a lottery since it has its three elements---prize, chance and consideration. The Department argues that the definition of "bingo" is not inclusive of this type of prize. Darlington Theatres, Inc., v. Coker, 190 S.C. 282, 2 S.E.2d 782 (1939).

S. C. Code Ann. § 12-21-3920 (1) defines "Bingo" as "a specific game of chance....in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers and symbols selected at random." The term "card" is defined in S. C. Code Ann. § 12-21-3920 (3).

However, the term "prize" is not defined in the definitional provisions of §12-21-3920. Thus, as discussed above, this term must be construed according to its ordinary and popular meaning.

In the Darlington case, which predates both the 1989 and 1996 Bingo Acts, the South Carolina Supreme Court opined that the 1975 amendment to the Constitution refers to the game of bingo as that game previously played illegally by charitable organizations throughout the State. It went on to define the game of bingo as being played by the use of a card with twenty-five squares arranged in five rows of five squares each, having one letter at the top of each column, the squares on the card containing twenty-four numbers and one free space, and the squares under each column identified as having certain numbers. Further, the court noted that a player, to enter a game, purchases a card at a set price and no further bets or payments are made. Finally, it noted that there are numerous players in a bingo game, who are notified beforehand of the prize they will win if they are successful. The payment for the card and the value of the prize to the winner remain the same throughout the game. It is quite clear that the Supreme Court interpreted a bingo game as having a prize which was valued and determined at its beginning and which was not subject to any chance at its conclusion.

Our legislature, in adopting the 1996 Bingo Tax Act, did not use the Supreme Court's definition in defining the game of bingo. However, S.C. Code Ann. § 12-21-3920 (1) does state that "'[b]ingo' or 'game' means a specific game of chance..." (emphasis added). The word "specific" is defined as "explicitly set forth; definite." The American Heritage College Dictionary, Third Edition, 1993, p. 1307. Black's Law Dictionary, Seventh Edition, defines the adjective "specific" as "of , relating to, or designating a particular or defied thing; explicit". The word "explicit" means "clearly stated and leaving nothing implied; distinctly expressed; definite, saying what is meant, without reservation or disguise." Webster's New World College Dictionary, Third Edition, 1997, p. 479.

In order for a bingo game to meet the definition of "specific," the prize must be determined and expressed prior to its beginning. To allow a winner to choose from several amounts which provide different prizes does not meet the definition of having a specific game. When the caller at the bingo location announces that the minimum prize is a set sum but that the winner can select from a number of envelopes and possibly get a much larger prize, this does not meet the definition of a "specific game." The game must be determined in all aspects prior to its beginning. S. C. Code Ann. § 12-21-4000 (Supp. 1998) is titled "Procedures applicable to conduct of bingo." Paragraph (6) of this section provides that "[t]he house is required to identify the games for which a card may be used before the card is purchased." I find and conclude that any bingo game that awards a prize in cash or its equivalent, must have a definite dollar value which is explicitly announced to the players prior to the commencement of the game in order to comply with the statute. Accordingly, the "Pop's Pick" or "Pick Six" games, in which the value of the prize is dependent upon which envelope the winner happens to pick, constitute a game of chance apart from the underlying bingo game, does not constitute "bingo" as defined in S.C. Code Ann. § 12-21-3920(1), and thus violates S.C. Code Ann. §§ 12-21-3930(4), 12-21-4000 and 12-21-3990 (A)(3) (Supp. 1998).

CONCLUSIONS OF LAW

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

1. Pursuant to S. C. Code Ann. § 12-4-30 (D) (Supp. 1998) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. In South Carolina, the game of bingo is authorized to be conducted and played and is regulated by the Bingo Tax Act of 1996, §§ 12-21-3910, et seq. (Supp. 1998).

3. A violation of S.C. Code Ann. §§ 12-21-3990 or 12-21-4000 (Supp. 1998) of the Bingo Act may constitute the operation of a lottery and/or gambling, which is a criminal act pursuant to S.C. Const., art. XVII, § 7 (1976) and S.C. Code Ann. §§ 16-19-10, et seq. (1976 & Supp. 1998).

4. Pursuant to the Bingo Act, the game of bingo must be conducted only by a nonprofit organization and promoter under contract with the nonprofit organization, both of which must be licensed by the State.

5. Greenville Lodge No. 858, The Benevolent and Protective Order of Elks, Greenwood County Grassroots Committee, Camp Opportunity, Inc., Anderson County Lodge # 10, Fraternal Order of Police, and the South Carolina Association for Blind Athletes are nonprofit corporations or organizations licensed in accordance with the provisions of §§ 12-21-3920 (5), 12-21-3930 and 12-21-3940 (Supp. 1998). Each holds a Class B license as defined in § 12-21-4020 (2) (Supp. 1998).

6. Ramon J. Ashy and Ashy International, Inc. are licensed promoters pursuant to S. C. Code Ann. §§ 12-21-3920 (4), 12-21-3930 (2) and 12-21-3950 (Supp. 1998). Further, the promoters managed, operated and conducted the bingo games under contract with the charitable nonprofit organizations on the dates the alleged violations were made by the undercover agents. See S. C. Code Ann. § 12-21-3970 (Supp. 1998).

7. The holder of a Class B bingo license is prohibited from awarding more than eight thousand dollars in prize money per session and may not conduct more than three (3) bingo sessions a week. S.C. Code Ann. § 12-21-4020(2) (Supp. 1998).

8. Respondents South Carolina Association for Blind Athletes and Ramon J. Ashy on October 22, 1998 violated the provisions of §§ 12-21-3920 (1), 12-21-3930(4), 12-21-3990(3) and 12-21-4000(6) (Supp. 1998) by conducting the game of "Pick Six," whereby the winner could select an envelope which might contain a cash prize in excess of the minimum cash prize of $50.00. The awarding of the prize in this indefinite form does not constitute the game of bingo as defined in S.C. Code Ann. § 12-21-3920(1), which requires that "bingo" be a "specific game of chance," with a definite prize stated at the start of the bingo game. See Darlington Theatres, supra.

9. Respondents Camp Opportunity, Inc. and Ramon J. Ashy on November 20, 1998 violated the provisions of §§ 12-21-3920 (1), 12-21-3930(4), 12-21-3990(3) and 12-21-4000(6) (Supp. 1998) by allowing the game of "Pick Six" to be played whereby the winner could select an envelope which might contain a cash prize in excess of the minimum cash prize of $50.00. The awarding of the prize in this indefinite form does not constitute the game of bingo as defined in S.C. Code Ann. §§ 12-21-3920(1), which requires that "bingo" be a "specific game of chance," with a definite prize stated at the start of the bingo game. See Darlington Theatres, supra.

10. The citations made for violating S. C. Code Ann. § 12-21-3990 (3) (Supp. 1998) against Respondent Greenville Lodge No. 858, The Benevolent and Protective Order of Elks and Ramon J. Ashy on October 29, 1998 for awarding Bingo Bucks; against Greenwood County Grassroots Committee and Ramon J. Ashy on November 9, 1998 for awarding Bingo Bucks; against Camp Opportunity, Inc. and Ramon J. Ashy on November 20, 1998 for awarding Bingo Bucks; and against Anderson County Lodge # 10, Fraternal Order of Police and Ashy International, Inc. on November 21, 1998 for awarding Bingo Bucks are dismissed as being without merit. The evidence is clear that the Bingo Bucks awarded as prizes were redeemable as cash, for items of refreshments or for the purchase of bingo cards. They had a set worth of two dollars each and were the equivalent of cash.

11. In construing a statute, its words should be taken in their ordinary and popular significance unless there is something in the statute requiring a different interpretation. Santee Cooper Resort v. S.C. Public Serv. Comm., 298 S.C. 179, 184, 379 S.E.2d 119, 122 (1989) (citing Hatchett v. Nationwide Mutual Insurance Co., 244 S.C. 425, 137 S.E.2d 608 (1964)). Where the legislature elects not to define the term in the statute, the court will interpret the term in accord with its usual and customary meaning. Ex Parte Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d 404 (1994). The court must then apply that term according to its literal meaning. Carolina Power & Light Co. v. City of Bennettsville, 314 S.C. 137, 442 S.E.2d 177 (1994); Holley v. Mount Vernon Mills, Inc., 312 S.C. 320, 440 S.E.2d 373 (1994).

12. S. C. Code Ann. § 12-21-3960 (Supp. 1998) provides that the promoter and the nonprofit organization are jointly and severally liable for all taxes, penalties, interest, and fines imposed by Article 24 of Chapter 21 of Title 12 and Chapter 54 of Title 12.

13. S. C. Code Ann. § 12-21-4140 (Supp. 1998) provides that a penalty up to five thousand dollars and revocation of the license may be imposed at the discretion of the Department for a violation of Article 24.

14. 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. S.C. 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 (1986).

15. I find that the monetary penalty of Five Hundred Dollars ($500.00) assessed by the Department against the Respondents, South Carolina Association for Blind Athletes and Ramon J. Ashy; and Camp Opportunity, Inc. and Ramon J. Ashy, both jointly and severally, for conducting the game of "Pop's Pick" or "Pick Six" in violation of the Bingo Tax Act of 1996 on October 22, 1998, and November 20, 1998, respectively, is reasonable.

16. The citations made for violating S.C. Code Ann. § 12-21-3990 (3) (Supp. 1998) against Respondent Greenville Lodge No. 858, The Benevolent and Protective Order of Elks and Ramon J. Ashy on October 29, 1998 for awarding Bingo Bucks; against Greenwood County Grassroots Committee and Ramon J. Ashy on November 9, 1998 for awarding Bingo Bucks; against Camp Opportunity, Inc. and Ramon J. Ashy on November 20, 1998 for awarding Bingo Bucks; and against Anderson County Lodge # 10, Fraternal Order of Police and Ashy International, Inc. on November 21, 1998 for awarding Bingo Bucks are dismissed as being without merit.

ORDER

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

ORDERED that the Respondents, South Carolina Association for Blind Athletes and Ramon J. Ashy pay a fine of Five Hundred Dollars ($500.00) to the Department within fifteen (15) days of the date of this Order, for violating the laws regulating the conduct of bingo games, as set forth above.

IT IS FURTHER ORDERED that the Respondents, Camp Opportunity, Inc. and Ramon J. Ashy pay a fine of Five Hundred Dollars ($500.00) to the Department within fifteen (15) days of the date of this Order, for violating the laws regulating the conduct of bingo games, as set forth above.

IT IS FURTHER ORDERED that the citations made for violating S.C. Code Ann. § 12-21-3990 (3) (Supp. 1998) against Respondent Greenville Lodge No. 858, The Benevolent and Protective Order of Elks and Ramon J. Ashy on October 29, 1998 for awarding Bingo Bucks; against Greenwood County Grassroots Committee and Ramon J. Ashy on November 9, 1998 for awarding Bingo Bucks; against Camp Opportunity, Inc. and Ramon J. Ashy on November 20, 1998 for awarding Bingo Bucks; and against Anderson County Lodge # 10, Fraternal Order of Police and Ashy International, Inc. on November 21, 1998 for awarding Bingo Bucks are hereby dismissed.

AND IT IS SO ORDERED.

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Marvin F. Kittrell

Chief Judge

April 26, 2000

Columbia, South Carolina

1. In 1996, two Acts were passed which contained provisions repealing the first bingo provisions passed by the legislature in 1989. See Act. No. 188, § 1. The two Acts were No. 431, § 34.A and No. 449, § 1; these provisions became effective October 1, 1997. In 1998, the bingo provisions were amended further by Act No. 28, § 4A, effective April 7, 1998, Act No. 334, § 3 and Act No. 340, § 4, both effective June 9, 1998, and Act No. 387, § 6, effective June 15, 1998.