ORDERS:
FINAL ORDER AND DECISION
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. 1998)
and S.C. Code Ann. § 12-4-30(D) (Supp. 1998) on alleged administrative violations. The South Carolina Department of
Revenue (Department) alleges that Respondents violated S.C. Code Ann. § 12-21-2804(A) by applying for, receiving,
maintaining, or permitting to be used permits for the operation of more than five machines authorized under S.C. Code Ann.
§ 12-21-2720(A)(3) (Supp. 1998) at a single place or premises. Specifically, the Department alleges violations of the "one
separate employee" requirement of 27 S.C. Code Ann. Regs. 117-190 (Supp. 1998).
For the alleged violations of § 12-21-2804(A), the Department seeks a $5,000 fine against each of the Respondents. Also,
the Department seeks revocation of licenses for the five Class III video game machines which were located in Players
World F, 1963 Highway 21 By-pass, Fort Mill, South Carolina on June 24, 1999 and preclusion of the use of any Class III
video game machine licenses at this business for six months.
The hearing of this matter was held on February 10, 2000 at the Administrative Law Judge Division. The issues before this
tribunal are (1) whether Respondents violated S.C. Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190
(Supp. 1998); and (2) if so, what are the proper penalties for these violations.
Based upon the following Findings of Fact and Conclusions of Law, this tribunal concludes that Respondents violated S.C.
Code Ann. § 12-21-2804(A) and 27 S.C. Code Ann. Regs. 117-190 (Supp. 1998) by utilizing video game machine licenses
in contravention of these laws. Consequently, the licenses shall be revoked and no video game machine licenses shall be
utilized at Players World F for a period of six months from the date of revocation of the licenses. Further, the Department
shall impose a fine of $500 against Respondent J. Steven Lipe, d/b/a Players World F.
FINDINGS OF FACT
Having carefully considered all testimony 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:
- On June 24, 1999, Special Agent Pope and SLED agent Lt. Evatt conducted an inspection of the video
gaming businesses located at 1963 U.S. Highway 21 By-pass, Fort Mill, South Carolina. After completion of the inspection
that day, Agent Pope issued an administrative citation against Respondents for violating the "single place or premises"
requirement of 27 S.C. Code Ann. Regs. 117-190 (Supp. 1998).
- At the time of the inspection, the facts relating to the "single place or premises" requirement of Reg. 117-190
were as follows:
- The location at 1963 U.S. Highway 21 By-pass, Fort Mill, South Carolina was a mall-type structure
consisting of five separate rooms; all of the rooms contained video gaming machines, however, only the
room designated as Players World F was open for business.
- The main entrance into the structure opened into a common area, and the five rooms were accessible from
this point.
- Upon entering the location, the agents observed a person in the common area, a very short distance from the
entrance of Players World F. This individual was later identified as the attendant responsible for the
gameroom. A customer was present in the gameroom. The attendant left the room momentarily to retrieve
change for the customer and again because the customer was smoking a cigar, which the attendant found
unpleasant. The only other person present at the location during the investigation was the manager who was
situated in the office.
- On June 24, 1999, the following Class III licenses were affixed to the machines at the business in question:
Machine Owner and Licensee |
License Number |
Gameexpress Amusements |
3011183 |
|
3012740 |
|
3023163 |
|
3023164 |
|
3023189 |
- On June 24, 1999, Respondent J. Steven Lipe, d/b/a Players World F held the retail licenses for the business.
- The Department seeks a $5,000 fine against each Respondent for a total of $10,000.
CONCLUSIONS OF LAW AND ANALYSIS
- Jurisdiction
- Pursuant to S.C. Code Ann. § 12-4-30(D) (Supp. 1998) and S.C. Code Ann. § 1-23-320 (Supp. 1998), the
Administrative Law Judge Division has jurisdiction to hear this matter.
- Burden of Proof
- 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 Respondents violated § 12-21-2804(A) by operating more
than five Class III machines at a single place or premises. See Anonymous v. State Bd. of Medical Examiners, 329 S.C.
371, 796 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is the preponderance of the evidence).(1)
- 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).
- Single Place or Premises Violation
- The Video Game Machines Act, which regulates video game machine activity in South Carolina, was
enacted in 1993 and became effective on July 1, 1993. This Act is codified at S.C. Code Ann. §§ 12-21-2770 et seq.
(Supp. 1998). The purpose of the Act is to regulate the video game machines industry and to prevent large-scale casino-type gambling operations in the State of South Carolina. See Reyelt v. S.C. Tax Comm'n, Nos. 6:93-1491-3 and 6:93-1493-3 (D.S.C. Nov. 15, 1993); see also Op. Att'y Gen. 94-21 at 51 (1994).
- South Carolina Code Ann. § 12-21-2804(A) (Supp. 1998) provides:
No person shall apply for, receive, maintain, or permit to be used, and the commission shall not allow to be maintained,
permits or licenses for the operation of more than eight machines authorized under Section 12-21-2720(A)(3) at a single
place or premises for the period beginning July 1, 1993, and ending July 1, 1994. After July 1, 1994, the commission may
not issue nor authorize to be maintained any licenses or permits for more than five machines authorized under Section 12-21-2720(A)(3) at a single place or premises. . . .
S.C. Code Ann. § 12-21-2804(A) (Supp. 1998).
- On June 23, 1995, regulations were promulgated which further clarified the provisions of the Video Game
Machines Act, and, as such, these regulations have the force and effect of law. See Young v. S.C. Dep't of Highways and
Pub. Trans., 287 S.C. 108, 336 S.E.2d 879 (1985); Faile v. S.C. Employment Sec. Comm'n, 267 S.C. 536, 230 S.E.2d 219
(1976). Specifically, Regulation 117-190 was promulgated to clarify the meaning of the phrase "single place or premises"
as set forth in § 12-21-2804(A). This regulation, effective June 23, 1995, provides, in relevant part:
A "single place" or "premises" means a structure surrounded by exterior walls or firewalls consistent with the requirements
of the applicable building code (or where no building code is applicable, a one hour rated firewall), provided such exterior
walls and firewalls may not have any windows, doors or other openings leading to another area where video game machines
are located.
If a structure surrounded by exterior walls has two or more areas where video game machines are located, each surrounded
by exterior walls or firewalls as defined and required above, the Department must review all the facts and circumstances to
determine if each area in reality constitutes a single place or premise for video game machines. In determining whether
each entity is in fact a single place or premises, the Department of Revenue will consider the following factors:
(1) Does each entity or business have a separate electric utility meter?
(2) Does each entity or business have at least one separate employee on the premises during business hours?
(3) Does each entity or business have a separate local business license where required?
(4) Does each entity or business have a separate state sales tax license?
A positive answer to these four questions is required for each area to be considered a "single place or premise" for purposes
of the Video Game Machines Act.
27 S.C. Code Ann. Regs. 117-190 (Supp. 1998) (emphasis added). The Supreme Court of South Carolina held this
regulation to be valid and a natural amplification of § 12-21-2804. McNickel's, Inc. v. South Carolina Department of
Revenue, 331 S.C. 629, 503 S.E.2d 723 (1998).
- It is well established that in interpreting a statute, the court's primary function is to ascertain the legislative
intent. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991); First South Sav. Bank, Inc. v. Gold Coast Assoc., 301
S.C. 158, 390 S.E.2d 486 (Ct. App. 1990); State v. Harris, 268 S.C. 117, 232 S.E.2d 231 (1977). In ascertaining the intent
of the legislature, a court should not focus on any single section or provision, but should consider the language of the statute
as a whole. Creech v. S.C. Pub. Service Authority, 200 S.C. 127, 20 S.E.2d 645 (1942). Furthermore, in construing
statutes, the language used should be given its plain and ordinary meaning without resort to subtle or forced construction to
limit or expand the statute's operation. Home Health Service, Inc. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375
(1994); Bryant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988). Where terms of a statute are clear and
unambiguous, they must be applied according to their literal meaning. Medlock v. 1985 Ford F-150 Pick Up, 308 S.C. 68,
417 S.E.2d 85 (1992); Green v. Zimmerman, 269 S.C. 535, 238 S.E.2d 323 (1977). "[A] statute should be so construed that
no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous. . . ." 82 C.J.S. Statutes § 346
(1953); see also Savannah Bank & Trust Co. of Savannah v. Shuman, 250 S.C. 344, 157 S.E.2d 864 (1967). This tribunal
has no legislative powers, and the justice or wisdom of statutes rests exclusively with the General Assembly. See Smith v.
Wallace, 295 S.C. 448, 369 S.E.2d 657 (Ct. App. 1988).
- Whether an establishment is being operated as a "single place or premises" is determined by evaluating the
facts against the standard set forth in Regulation 117-190. With respect to the "employee" requirement, Regulation 117-190
requires that each entity or business have at least one separate employee on the premises of that respective entity or business
during business hours.
- If a game room containing operational Class III video game machines is accessible to customers and no
employee is present in that room, the room is being operated in violation of the regulatory standard. An employee working
in a common area or anywhere else outside the game room is not considered to be "on the premises" of the game room. See
South Carolina Dep't of Revenue and Taxation v. Stacks, 95-ALJ-17-0742-CC (Mar. 8, 1996). This application is
consistent with the intent of the General Assembly to prevent large-scale, casino-type gambling. See Singletary v. South
Carolina Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct. App. 1994), citing State v. Thrift, 312 S.C. 282, 440 S.E.2d 341
(1994) (legislative intent must prevail if it can be reasonably discovered and language of a statute must be construed in the
light of the intended purpose of the statute).
- Players World F failed to meet the "one separate employee" requirement set forth in Regulation 117-190 by
failing to have an employee on the premises. While an employee was in the common area near the game room, no
employee was present in the game room during business hours, as required by the regulation.
- Penalty
- It is a generally recognized principle of administrative law that the fact-finder has the authority to impose an
administrative penalty, as established by the legislature, after the parties have had an opportunity for a hearing on the issues.
See, e.g., Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).
- It should be emphasized that S.C. Code Ann. § 12-21-2804(A) (Supp. 1998) clearly precludes any person,
not just the licensees, from applying for, receiving, maintaining, or permitting to be used permits for the operation of more
than five Class III video game machines in a single place or premises. The term "person" is not defined in the Act, but its
common and ordinary meaning clearly encompasses any individual or entity, including the licensee or machine owner. See
Black's Law Dictionary 1162 (7th ed. 1999). Further, § 12-21-2804(A) mandates that the Department revoke the licenses of
machines located in an establishment that fails to meet the requirements of this section. Hence, § 12-21-2804(A) mandates
revocation of the licenses so used, even if the machine licensee was not directly involved in applying for, receiving,
maintaining, or permitting its licenses to be used in contravention of the statute. Under § 12-21-2804(A), a license on a
video game machine must be revoked by virtue of its misuse under the Act, whether the actual violator is the licensee,
machine owner, or lessee. Such an interpretation is consistent with the plain language of the statute. In the present case,
the five Class III machines were being operated in Players World F without an employee on the premises during business
hours. Consequently, as required by § 12-21-2804(A), the licenses for the five Class III machines in Players World F must
be revoked.
- Section 12-21-2804(A) further provides: "No license may be issued for a machine in an establishment in
which a license has been revoked for a period of six months from the date of revocation." The clear meaning of this
language precludes the utilization of new licenses for machines to be placed in an establishment for a six month period after
that establishment has had a machine license revoked. Hence, as the machines in Players World F have been rendered
inoperative by their respective license revocations and no new machine licenses may be utilized at this business location for
six months, it logically follows that Players World F must cease operations for six months. The Department does not issue
machine licenses for use at specified locations, but rather to individuals who may utilize them at any licensed location in the
State. Consequently, section 12-21-2804(A) would be rendered meaningless if it were read not to require an establishment
whose licenses have been revoked to cease operations for six months. See Singletary v. South Carolina Dep't of Educ., 316
S.C. 153, 447 S.E.2d 231 (Ct. App. 1994), (citing State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994)) (legislative intent
must prevail if it can be reasonably discovered and language of a statute must be construed in the light of the intended
purpose of the statute).
- However, a monetary fine under § 12-21-2804(F) may be imposed only on the person who violates § 12-21-2804(A). When applying for a machine license, a licensee violates the statute if when he applies for a license, he knows it
will be used for the operation of more than five machines at a single place or premises. S.C. Code Ann. § 12-21-2804(F)
provides that a person who violates S.C. Code Ann. § 12-21-2804(A) is subject to a fine of up to $5,000. S.C. Code Ann. §
12-21-2804(F) (Supp. 1998).
- In this case, Respondent J. Steven Lipe, d/b/a Players World F, which is the retail license holder and
manager of Players World F, violated S.C. Code Ann. § 12-21-2804(F) (Supp. 1998). Consequently, Respondent J. Steven
Lipe, d/b/a Players World F is subject to a fine under S.C. Code Ann. § 12-21-2804(F) (Supp. 1998). There is no evidence,
however, that Respondent Quick Foods, Inc., d/b/a Gameexpress Amusements, Inc., which is the license holder, knew that
the Class III machines in Players World F would be used for the operation of more than five machines at a single place or
premises. Consequently, Respondent Quick Foods, Inc., d/b/a Gameexpress Amusements, Inc. is not subject to a fine under
S.C. Code Ann. § 12-21-2804(F) (Supp. 1998).
- Under the circumstances of this case, a reduction in the fine is warranted because the employee was in the
common area and within a few feet of the premises of Players World F. The violation occurred, and Respondent J. Steven
Lipe, d/b/a Players World F was the holder of the retail license. Consequently, I find that Respondent J. Steven Lipe, d/b/a
Players World F is subject to a $500 fine for a violation of § 12-21-2804(a).
- 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(a) (Supp. 1998), the Department shall revoke the licenses for the five Class III machines
located in Players World F.
IT IS FURTHER ORDERED that no Class III video game machine licenses shall be utilized in this business for a period
of six months from the date of revocation of the licenses.
IT IS FURTHER ORDERED that the Department shall impose a fine of $500 against Respondent J. Steven Lipe, d/b/a
Players World F.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
March 29, 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)). |