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:
DOR vs. Greenville Lodge No. 858 BPOE

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
South Carolina Department of Revenue

Respondents:
Greenville Lodge No. 858 BPOE
295 Spartanburg Bee Bingo, and Ramon Ashy
 
DOCKET NUMBER:
03-ALJ-17-0348-CC

APPEARANCES:
Lynn M. Baker, Esquire, for the Petitioner

Heath P. Taylor, Esquire, for the Respondents
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court Footnote (ALC or Court) pursuant to S.C. Code Ann. §§12-60-30 and 12-60-460 (2000). The South Carolina Department of Revenue (Department) seeks a fine in the amount of $500.00 for violation of S.C. Code Ann. § 12-21-3990(A)(1) (2000 & Supp. 2002) (awarding bingo cards as prizes). A hearing was held before me on February 20, 2004 at the offices of the Court in Columbia, South Carolina.


STIPULATIONS OF FACT

At the hearing on this matter and pursuant to ALC Rule 25(C), the parties entered the following written stipulations of fact into the Record:

1.On May 3, 2003, Greenville Lodge No. 858 BPOE was doing business as 295 Spartanburg Bee Bingo located at 627 Southport Road, Roebuck, SC and was operating under bingo license number 80000601-6.

2.Ramon Ashy, Sr., of CMW Educational Services, Inc., was the promoter for Greenville Lodge No. 858 d/b/a 295 Spartanburg Bee Bingo and was operating under bingo promoter license number 80008398-6.

3.On May 3, 2003, undercover bingo players for the Department of Revenue, Susan Catt and Donna Crowley, conducted an undercover bingo inspection of the above organization.

4.That upon entry at approximately 6:00 PM, the undercover players did purchase a program pack, pay an admission fee and were given entry tickets numbered 258463 and 258462 and a yellow bingo program guide with “Spartanburg Bingo” written across the top.

5.That a regulatory violation of S.C. Code Section Ann. 12-21-3990(A)(1) issued on June 1, 2003 by the Department to CMW Educational Services, Inc. whose mailing address is P.O. Box 26256, Greenville, SC 29616 and to Greenville Lodge No. 858 BPOE whose mailing address is P.O. Box 25335 Greenville, SC 29616.

6.That a representative of the bingo promoter did sign for each of the regulatory violations and proposed assessment reports as well as attachment FS-31 entitled “Explanation of Regulatory Violation” served by William Riley.

7.That the Department did issue a Final Determination dated July 30, 2003 to Ramon J. Ashy and Greenville Lodge No. 858 BPOE sustaining the violations.


FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1.Notice of the time, date, place and subject matter of the hearing was given to the

Petitioner and the Respondents.

2.On a typical night, approximately seventy (70) to eighty (80) bingo games are played at a licensed bingo hall. Upon entering a bingo hall, a bingo player pays an entrance fee and then purchases bingo cards (paper) or the computer program the player initially wants to play. A “runner” in the hall also carries cash to and from the players, sells additional games and/or cards, and fields questions. The player normally plays the paper originally purchased until that paper is exhausted. The player may then summon a runner to purchase additional paper directly from the runner or may purchase paper at the counter. Players usually interact with the runners because it is more convenient for the player to deal with a runner while seated rather than potentially miss games when they leave the floor.

3. As set forth above in the Stipulations of Fact, undercover players Susan Catt and Donna Crowley entered the Greenville Lodge location at approximately 6:00 p.m. on May 3, 2003, and purchased computer program packs. Greenville Lodge customarily proffers a “flag game” that is played early in the evening (an “early bird game”) in which the winner receives the prize of playing free for the remainder of the night. On this particular night, the flag game was referred to as an “all night game” by the bingo caller, referencing the prize that would be awarded to the winner. The awarding of bingo cards as prizes is in direct contravention to S.C. Code Ann. § 12-21-3990(A)(1) (2000 & Supp. 2002). However, neither Ms. Catt nor Ms. Crowley witnessed the exchange between the winner and the runner in this instance. Therefore, no evidence was presented that the winning player did indeed receive free bingo cards as a prize for winning the flag game rather than cash.

4.Ramon Ashy, Sr., the promoter for Union Lodge, did not appear at the hearing in this case. However, his son Ramon Ashy, Jr., who is involved with the operation of his father’s business, set forth that after he was charged with violating Section 12-21-3990(A)(1) on October 1, 2002, Footnote he changed the manner in which the prizes were awarded for the flag games so as to remove any appearance of a violation, even though the customers are inconvenienced. It is unclear whether these changes were made before or after this incident.


CONCLUSIONS OF LAW

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

1.S.C. Code Ann. § 1-23-600 (1986 & Supp. 2002) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. §§12-60-30 and 12-60-460 (2000) grant the Court the authority to hear contested case hearings in matters arising under the Department of Revenue, and, more specifically, The Bingo Tax Act.

2.The Respondents are charged with violating S.C. Code Ann. § 12-21-3990(A)(1), entitled “Manner of Playing Bingo,” which sets forth:

(A) The game of bingo must be played in the following manner:

(1) Bingo is played by more than one player and a caller who is associated with the house. Each player must pay face value for each card to be played during the course of a game and may purchase the card for a specified number of games. All cards sold for a game must sell for face value and cards may not be given to players as prizes or for free. After the player has purchased a card or cards for a specified number of games, the house cannot require or accept an additional payment or consideration by the player in order to complete the specified number of games.

(emphasis added). In this case, the undercover bingo players did not specifically see or hear the transaction in question in which the Respondents awarded the flag game winner bingo cards in violation of this section. Consequently, there is no evidence that the player was actually given free bingo cards as a prize.

3.The Administrative Law Court has the authority to establish the imposition of a penalty for a violation. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm’n, 305 S.C. 209, 407 S.E. 2d 633 (1991). To that end, the Administrative Law Judge must consider relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be anything between the limits of complete remission on the one hand and a denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S. Mitigation p. 834-835 (1948). A legitimate as well as a significant consideration is whether the alleged mitigating factor demonstrates reasonable cause to reduce the penalty. Kroger Co. v. Department of Revenue, 673 N.E. 2d 710 (Ill. 1996).

In this case, the Department seeks a fine in the amount of $500.00 for violation of Section 12-21-3990(A)(1). See Revenue Procedure # 97-7. Since I do not conclude that the Respondents violated the provisions of Section 12-21-3990(A)(1), no sanctions are warranted for that offense.


ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that this charge against the Respondents is DISMISSED.

AND IT IS SO ORDERED.


___________________________

Ralph King Anderson, III

Administrative Law Judge


August 24, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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