SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before this tribunal for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1999) and S.C. Code Ann. § 12-4-30(D) (Supp. 1999) on alleged administrative violations. The South Carolina Department of Revenue (Department) claims that Respondent Larry Detwiler, d/b/a El Dees Swap Shop (Respondent) violated the advertising prohibitions contained in S.C. Code Ann. § 12-21-2804(B) (Supp. 1999) and 27 S.C. Code Ann. Regs. 117-190.2 (Supp. 1999). The Department seeks a $2,000 fine against Respondent.

A hearing of this matter was conducted at the Administrative Law Judge Division on April 4, 2000. Based upon the following Findings of Fact and Conclusions of Law, this tribunal concludes that Respondent violated S.C. Code Ann. § 12-21-2804(B) and 27 S.C. Code Ann. Regs. 117-190.2 by improperly advertising for the playing of Class III machines. Consequently, the Department shall impose a fine of $2,000 against Respondent.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits 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:

1. On February 23, 1999, Special Agent Brunson Ashley Asbill of the South Carolina Law Enforcement Division visited the video gaming businesses located at Rt. 1, Box 292, Highway 25, Ware Shoals, South Carolina. The Agent saw a sign exterior to the building at issue which read "videopoker." The sign had a directional arrow that pointed towards the building which was 30-50 feet away. An electrical plug ran from the sign to an outlet of the building. The Agent issued a citation against Respondent Larry Detwiler, d/b/a El Dees Swap Shop for violating the advertising prohibitions contained in S.C. Code Ann. § 12-21-2804(B) (Supp. 1999) and 27 S.C. Code Ann. Regs. 117-190.2 (Supp. 1999).
2. The agents discovered three (3) licensed Class III machines in the retail business El Dees Swap Shop at Rt. 1, Box 292, Highway 25, Ware Shoals, South Carolina.
3. The Department seeks a $2,000 fine against Respondent, pursuant to S.C. Code Ann. 12-21-2804(F) (Supp. 1999).

4. There are three (3) commercial spaces in the building in which El Dees Swap Shop is located. One of these commercial spaces is occupied by a business referred to as Jabels, and the third commercial space is vacant.

5. Larry Detwiler is the owner of El Dees Swap Shop.

6. Larry Detwiler is the owner of Jabels.

7. Respondent supplied three (3) Class III machines to the El Dees Swap Shop business and held the licenses for these machines.

8. There were no Class III machines at the business referred to as Jabels.

CONCLUSIONS OF LAW AND ANALYSIS

1. Jurisdiction
2. Pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1999) and S.C. Code Ann. § 1-23-320 (Supp. 1999), the Administrative Law Judge Division has jurisdiction to hear this matter.
3. Burden of Proof
4. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999). The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a preponderance of the evidence that Respondent violated § 12-21-2804(B), by advertising for the playing of video poker machines. See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is preponderance of the evidence).⁽¹⁾
5. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who observes a witness, is in the better position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

C. Advertising

1. Section 12-21-2804(B) provides:

No person who maintains a place or premises for the operation of machines licensed under Section 12-21-2720(A)(3) may advertise in any manner for the playing of the machines nor may a person offer or allow to be offered any special inducement to a person for the playing of machines permitted under Section 12-21-2720(A)(3).

S.C. Code Ann. § 12-21-2804(B) (Supp. 1999) (emphasis added). To clarify and simplify the provisions of this statute, the Department promulgated Regulation 117-190.2 which defines the word "advertise." As it relates to advertising, the regulation provides that ". . . any attempt to call attention to, or make known, to the general public that video game machines as defined in Code Section 12-21-2772(5) are available for play is advertising and is strictly prohibited by the statute."

1. Section 12-21-2804(B) clearly provides that a person who maintains a place or premises for the operation of Class III video machines may not advertise for the playing of the machines. In the instant case, a sign displaying the word "videopoker" was positioned exterior to the building in which El Dees Swap Shop was located. Undeniably, this sign constituted an advertisement for Class III video machines. This sign constituted the type of advertising that the General Assembly intended to prohibit.
2. The Department charged Respondent with violating § 12-21-2804(B). The evidence supports that Larry Detwiler owned El Dees Swap Shop, held the retail license for this business, supplied the three Class III machines to El Dees Swap Shop and held the Class III machine licenses. Consequently, Respondent clearly maintained the business for the operation of Class III machines.

7. Respondent also permitted the advertisement for "videopoker" on the sign at issue. Larry Detwiler was the sole owner of both El Dees Swap Shop and Jabels, which were the only two businesses located in the building at issue. There were three Class III machines at El Dees Swap Shop. There were no Class III machines at Jabels. The sign that read "videopoker" clearly advertised for the Class III machines in El Dees Swap Shop. Consequently, Respondent advertised the playing of its Class III machines, thereby violating § 12-21-2804(B) and Reg. 117-190.2.⁽²⁾

8. Therefore, the fine authorized by S.C. Code Ann. 12-21-2804(F) (Supp. 1999) is proper against Respondent. The Department shall impose a fine of $2,000 against Respondent for the advertisement at issue.

9. Pursuant to ALJD Rule 29(C), issues raised in the proceedings but not addressed in this Order are deemed denied.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that, as mandated by S.C. Code Ann. § 12-21-2804(B) (Supp. 1999), the Department shall impose a fine against Respondent, located at Rt. 1, Box 292, Highway 25, Ware Shoals, South Carolina, in the amount of $2,000.

AND IT IS SO ORDERED.

______________________________

John D. Geathers

Administrative Law Judge

April 6, 2000

Columbia, South Carolina

1. The preponderance of the evidence is "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." BLACK'S LAW DICTIONARY 1201 (7th ed. 1999). "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." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1999) (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

2. At the hearing, Respondent argued that the sign was an advertisement for Jabels, which was the other business in the building at issue, and that a neighbor sabotaged the sign and removed the letters that spelled "Jabels." Even if this were so, this sign would still constitute an advertisement for the playing of Class III machines at El Dees Swap Shop because (1) there were no Class III machines at Jabels, (2) Respondent was aware that the sign read "videopoker," (3) Respondent permitted the sign to read "videopoker," (3) Larry Detwiler owned both El Dees Swap Shop and Jabels, and (4) Larry Detwiler was responsible for the sign.