ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court
(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. § 12-21-4000(15) (2000 & Supp. 2002) (promotion prize outside bingo to exceed $100.00). 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 October 31, 2002, Transitions, Inc., was doing business as 291 Bingo (listed in
the caption as Pops Pleasantburg Bingo) located at 28 Liberty Lane, Greenville, S.C., and was
operating under bingo license number 80000188-7.
2.Ramon Ashy, Jr., of Ashy International, Inc. was the promoter for Transitions, Inc.,
d/b/a Pops Pleasantburg Bingo and was operating under bingo promoter license number 80008354.
3.On October 31, 2002, undercover bingo player Connie Bucknam conducted an
undercover bingo inspection of the above organization.
4.That upon entry at approximately 6:30 PM, the undercover player did purchase a
program pack and was given entry fee ticket number 186864 and a bingo program guide with
“Pleasantburg Bingo” written across the top.
5.That during the session, a Halloween costume contest was held at 28 Liberty Lane.
6.That bingo players did participate in the Halloween costume contest and monetary
prizes were awarded.
7.That the bingo program guide did advertise a $1000.00 Halloween contest
compliments of the Sub Center.
8.That the bingo program guide was mailed out to regular bingo players in advance of
the session to advertise the upcoming games.
9.That the bingo license states the physical address of the bingo at issue is 28 Liberty
Lane, Greenville, SC.
10.That the retail license for the Sub Center states the physical address of the Sub Center
as 28 Liberty Lane, Greenville, SC.
11.That the Sub Center or canteen is located at 28 Liberty Lane, Greenville, SC.
12.That the retail sales license lists the trade name of the canteen as Pleasantburg Bingo
Snack Bar with a mailing address of PO Box 26256, Greenville, SC 29615-1256.
13.That the retail sales license lists Pop Enterprises, Inc., as owner of the Pleasantburg
Bingo Snack Bar and the business location at 28 Liberty Lane, Greenville, SC.
14.That Ramon Ashy, Jr., is the Vice President of Pop Enterprises, Inc., owning 25% of
the corporation.
15.That Ramon Ashy, Sr., is President of Pop Enterprises, Inc., owning 75% of the
corporation.
16.That Ramon Ashy, Sr., is the father of Ramon Ashy, Jr.
17.That a regulatory violation of S.C. Code Section Ann. 12-21-4000(15) was issued on
December 11, 2002 to Ashy International whose mailing address is P.O. Box 26256, Greenville, SC
29616 and to Transitions, Inc., whose mailing address is P.O. Box 1783, Greenville, SC 29602.
18.That on December 11, 2002, Mark Rayford, the manager of 291 Bingo (listed in the
caption as Pops Pleasantburg Bingo) did sign for the regulatory violations and proposed assessment
reports as well as attachment FS-31 entitled “Explanation of Regulatory Violation” served by Mike
Catt and David Sons.
19.That the Department did issue a Final Determination dated June 11, 2003 to Ramon
J. Ashy and Transitions, Inc., sustaining the violation.
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 Respondent.
2. Early during the evening of October 31, 2002, the Sub Center held a Halloween
costume contest with approximately ten to fifteen participants. The bingo players voted on the best
costumes. The contest was advertised as having a total payout of $1,000.00. Respondent Ramon
Ashy, Jr., as the promoter of the bingo games at this location, contributed $100.00 toward the prize
with the Sub Center contributing the other $900.00. The contest was announced as being sponsored
by the Sub Center and the Sub Center paid out the prize money to the winners.
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 ALC to
hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. §§12-60-30 and 12-60-460 (2000) grant the ALC 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.§ 12-21-4000(15). That
section provides that:
(15) The house may hold promotions of special events during a session offering
players prizes other than from the play of bingo not to exceed one hundred dollars in
cash or merchandise for each session. This amount is not to be paid out of the bingo
account and is not included in total payouts for a session. There is no additional
charge to players to participate in a special promotion. The promotion must not be
a form of gambling or a game of chance.
In this case, the promoter contributed $100.00 to the Halloween costume prize, in compliance with
the language of the statute. Furthermore, the Department’s witnesses conceded that the Sub Center
was in control of the contest and that the contest was announced as being offered by the Sub Center.
Furthermore, the participants did not have to pay additional monies to enter the contest once they
paid the tax fee to play bingo. Also, because the contest was judged by the other bingo players in
the hall, it was not “a form of gambling or a game of chance.”
Although the lines may appear to be blurred between the ownership of the building, which
controls the Sub Center, and the bingo promoter in this case, the Department of Revenue’s witnesses
testified that it is not unusual for other businesses to be housed within a bingo hall. However, those
other businesses must be separate and distinct from the bingo game operation and full disclosure
must be made to the Department of Revenue. Also, the Sub Center was required to have its own
business license. Therefore, I conclude that the Sub Center was in control of the Halloween costume
contest on the night of October 31, 2002, and not the Respondents.
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).
In this case, the Department seeks a fine in the amount of $500.00 for violation of Section
12-21-4000(15). See Revenue Procedure # 97-7. Since I do not conclude that the Respondents
violated the provisions of Section 12-21-4000(15), 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 26, 2004
Columbia, South Carolina |
