*1 49 financial institu- or other notice to the bank further serve as Sims, Jr., appointed duly has been Esquire, Lana H. tion that by this Court. of the United Order, on office when served
Finally, Sims, that Lana H. Service, as notice shall serve Postal States and has Jr., by this Court duly appointed has been Esquire, authority mail and the receive authority respondent’s Mr. office. mail be delivered to Sims’ that respondent’s direct than longer of no period be for a This shall appointment for an is made to this Court request months unless nine extension. Toal, H. C.J. Jean
/s/ THE
FOR COURT
600 S.E.2d CO., INC., PREPAID PHONECARD LIGHT SUN Inc., Plaintiffs, Companies, and DTL v. Carolina Carolina and South of South
STATE Division, Defendants. Law Enforcement Inc., Company Us, of North R.L. Jordan Oil Phonecards R Plaintiffs, Inc., Carolina, Companies, DTL Inc. and v. Carolina Carolina South
State South Division, Defendants, Enforcement Law Inc., Us, Oil R and R.L. Jordan Whom Phonecards Of Carolina, Appellants, Company Inc. are of North Carolina Carolina and South And of South State Respondents. Law Enforcement Division No. 25840. Carolina. Supreme Court of South 4, 2004. Heard Feb. 6, July Decided Rehearing Aug. Denied *2 Matthew A. Henderson, Henderson and Joshua M. of Henderson, Vieth, Brandt & of Spartanburg, for appellants.
Assistant Attorney McMahon, General Elizabeth R. of Co- lumbia; Davidson, II, William H. Lindemann, and Andrew Davidson, Morrison, Lindemann, P.A., Columbia, for respondents. Brown, Stent,
W. Hogan W. Barden, Carl and David M. all Columbia, for Amicus Curiae. Justice MOORE:
We are asked to determine whether the trial court erred by finding certain long distance telephone cards and electronic phone card dispensers to be illegal gambling devices. We affirm. FACTS
PROCEDURAL respondents’ following action commenced Appellants State’s) (the pre-paid, of appellants’ seizure cards) dis- and electronic (phone telephone cards and the return sought Appellants pensers. Before the seizure. from resulting damages first held on a trial was damages, for the claim hearing legality claim to determine judgment declaratory held the The trial court dispensers.1 cards and devices. illegal gambling
FACTS “Lucky which are entitled dispensers, The Enter- Diamond Games Shamrock,” by were manufactured Inc. to Companies, DTL and leased and distributed prises the man- furnished materials promotional appellants. large print a header contain and distributor ufacturer page, this same Legally.” On Cash stating, “Pay Winners *3 sentence, Ef- “Audio and Visual the contains promotion the It’s Not!” Although Like a Machine It Look Slot fects Make of the phone the sale mentions information promotional The Phone Cards Hundreds of “Sell following way: in the cards Profits!” Reaping Big Every Day pre-printed are cards, game pieces, the including The dispenser. in a placed are before the manufacturer by 7,500 At- cards. containing on rolls printed cards are The the gives that piece a game card is tached to each The entire a cash prize. to win a chance customer back, reveals a toll- which, cover, pulled when contains a paper the activating number for number and pin free format.2 If in a 8-liner array symbols of nine as well as an order, in a certain arranged symbols contains game piece the prints The computer a prize. customer wins Seventy percent on the cards. winners randomly generates Court, appeals there- cases and magistrate court all By order of this phone card machines of the arising of the seizures from out action. of this stayed pending the conclusion were game only the included agreed if the card expert Appellants' card, would the card include the did not portion of card and gambling device. pull-tab, is a a which be from the paid prizes revenue cards is out and the rest is a hold A hold is the percentage.3 percentage profit net by received the sellers of the The dispensers cards. do not adjust received; however, to ensure the hold percentage is percentage predetermined amount of the hold based on the of the printing phone card rolls.
After the roll of printing, pre-printed phone cards are inside the placed dispenser dispenser cannot work without a of phone roll cards inside.4 Each card sells for $1 gives the customer two telephone minutes of service. The customer can use the by two minutes of time dialing a toll-free number entering PIN number. The customer can recharge put also the card and additional long distance time on the card at the rate of 14.9 cents minute. per
Appellants contend the purpose game piece is to promote the sale of the cards. The prizes paid winning customer either by by cashier the store or mail, but not dispenser itself. A customer does not need to purchase game card to obtain a free A piece. free game piece could be obtained from the operator of the mail. dispenser by Instructions on how to obtain a free game on the piece posted side of the machine and on the video screen of the machine.
The dispensers housed within a standard slot machine cabinet. contained several fea- tures in a gambling machine as to a opposed (1) simply dispenses machine that a product: that, contain a video screen that has a theme in if chooses, the user so the user can see reels turn as if the machine;5 winner is chosen if the machine dispens- (Sun Light Prepaid Company's Light) promotion 3. Sun Phonecard was *4 $9,744,000 $4,178,000 predicted prizes to result in in and in net revenue. Louden, design building 4. Donald who in was involved the and machines, phone purchased testified the cards could be from a clerk dispensed by and did not have to be the machines. play determining 5. The machine does not a in role the winner because winning already pre-selected phone the have cards been on the card simply rolls. The machine phone reads the bar code on the back of the displays image card and that on the video screen. The customer can
53 whereas played, celebration music is game piece, a winning es (3) loser; the machine if the is a game piece no music plays the freezes the operation has a lock-out feature which money prize level of pre-determined machine when (4) meters, reached; two hard one is an the machine contains into the money going the amount of in-meter records machine, and records the and the other is labelled “WON” (5) machine, machines; value of the issued prizes $1, $5, $10, $20, $50, bills, it does although accepts $100 returning change; not have a mechanism for linked, a device. gambling machines could be feature of a Further, to run promotion was set although sweepstakes months, on the cards long phone for only phone was valid for six months from the time the first testimony appel- card number was used. There was pin manufacturer, lants, keep any not distributor did time used or what numbers had been pin records of the Also, contained more than one sold via the cards. some stores purchase to the lease and dispenser. According Us, compa- R and another Light, Phonecards Sun agreements, case, in were under contract to sell ny not involved (117,360,000) in the year million 360 thousand population The South Carolina state of South Carolina. seizures, about three only the time of the was early conducted to marketing study A had not been people. million there would be such a demand for high determine whether company from which Finally, cards. intra- provide could not purchased legally distance service was because it had not been state service South Carolina licensed to do so.
ISSUE cards and by finding Did the trial court err devices? illegal
DISCUSSION The trial court found the Ann. 12-21-2710 under S.C.Code
(2000), provides: which game piece determine if have a
either look at the or the monitor to winning game piece. *5 any person keep premises It is unlawful for to on his or or to be on his or operate permit kept premises operated board, ... ... or other device pull within State kind, or pertaining games to chance whatever name of of machines, boards, or other including those devices words, display pictures, symbols, different at different numbers, or, or different whether in words or plays figures which tokens or coins at intervals or in deposit regular machine, or in varying player numbers to the the but the this section do not extend to ... provisions give machines which are constructed as to a certain uni- deposited return in value each coin and form fair for in which there is no element chance. added). (Emphasis
Appellants argue phone dispensers legal the card under § 12-21-2710 they because are the same as traditional vend- ing machines and a uniform return for provide every dollar inserted, i.e. a card. phone They argue only when a machine and its determine be a components who will winner the machine does violate 12-21-2710.
While it is true the the customer the dispenser always gives return, attached, same i.e. a card with a phone game piece that the not itself determine whether a dispenser does custom- won, er the still an dispenser has contains element of chance. rolls, a printing phone computer randomly When the which game piece phone determines attached to which will be a winner. The card roll is then inside the placed As testified dispenser. designer dispensers to of the an appellants’ expert, integral rolls are machine, and, them, of the without part will not Therefore, work. card rolls the element of chance in the and cause the cards dispens- ers to violate 12-21-2710. an
Although integral cards are of the component if dispensers, cards would be opposed being issued over the counter as to in the placed found, § As the trial court dispensers. 12-21-2710 declares device illegal any pull pertaining games board other chance. The card itself contains an element of chance and is a known type gambling pull-tab. Appel- device as a lants’ that if the card not expert stated did include the sweepstakes included the only but device. Given the card would be portion, cards, of the phone portion characteristics Accordingly, surplusage game piece. cards is mere *6 themselves phone determined the cards properly trial court devices. illegal gambling Furthermore, correctly phone the trial court determined machines and not traditional card are like slot dispensers a gambling-themed machines. The have vending dispensers screen, celebration music when a customer is play video winner, which freezes the of operation have a lock-out feature prize money machine when a level of is pre-determined reached, prizes contain a meter that records the value of the out, None of features is change. and do not these paid give exempted machine that is vending a traditional § 12-21-2710. from found the cards
Accordingly, properly the trial court devices to dispensers illegal gambling pursuant and to be § 12-21-2710.6 found further the trial court should have
Appellants
argue
and
cards
to S.C.Code
dispensers
legal pursuant
However,
§Ann.
61-4-580
(Supp.2003).7
§
Appellants argue
dispensers
if the
are found
under
12—
21-2710,
vending
dispense
Carolina that
then all
machines in South
game
candy
promotional sweepstakes
pieces likewise
or snacks with
statute,
equal protection rights
their
would be
violate the
otherwise
However,
given
argument
without merit
violated.
is
illegal gambling
vending machines are
dispensers are
devices and
similarly
equal
situated such that an
not. The two machines are not
Whaley
County Zoning
protection
may
v. Dorchester
claim
arise. See
(1999)
protection
(equal
Appeals,
Bd.
337 S.C.
dispensers requirements 61-4-580 be- are not a game pieces legitimate promotion cause sweepstakes. Accordingly, the trial court did not err find failing legal cards pursuant §to 61-4-580.8
CONCLUSION find trial court did not We err the two-minute finding emergency long-distance phone the electronic illegal gambling be devices under 12-21- AFFIRMED.
TOAL, C.J., and Acting Justice ALEXANDER S. MACAULAY, concur.
PLEICONES, J., Acting Justice DANIEL F. PIEPER dissenting separate opinions.
Justice PLEICONES:
I with the agree majority question that the machines in are gambling § devices that violate Ann. S.C.Code 12-21-2710 permit authorizing may a No holder of the sale of beer or wine ...
knowingly
following
upon
prem-
commit
of the
acts
the licensed
permit:
ises covered
holder's
gambling
games
permit
except game
or
promotions
of chance
contests,
chance,
including
games
sweepstakes
or
in which the
prize
of chance and
comply
elements
are
and which
with the
following:
(a)
game promotion
is conducted or offered in connection with
sale, promotion,
product
or advertisement of a consumer
or
service,
image
supplier
or to enhance the brand or
of a
of consumer
services;
products or
fee,
(b)
purchase payment, entry
proof
purchase
no
or
is re-
quired
entering
game promotion
receiving
as a condition of
or
a
prize; and
(c)
advertising
game promotion clearly
all materials
disclose
purchase
payment
necessary
that
provide
no
or
is
to enter and
details
participation.
the free
on
method of
§
Given the
under
12—21—
2710,
unnecessary
argument
appellants'
it is
to address
that the trial
by finding
dispensers illegal
§
court erred
under S.C.Code Ann. 12-
(2000).
22-1040
found
(2000),
exception
hold
meet
but would
61-4-580(3)
I
Accordingly,
(Supp.2003).
§
Ann.
S.C.Code
circuit court’s order.
would reverse the
1929,
that
a
dispensed package
held a machine
In
this Court
dispensed,
and in addition
deposited,
for each nickel
of mints
tokens,
intervals,
was an
between
and 20 brass
at random
12-21-
§to
predecessor
device under the
gambling
unlawful
(1929).
Heise,
In
v.
Having device, the next issue is here is a piece gambling scheme As- The General permitted whether it is under 61-4-580. with the chances “in connection sembly legalized games has sale, or good of a consumer promotion or advertisement for the sale ...” if conducted on licensed premises 61-4-580(3). majority concludes that the or wine. beer this statute machines are without dispensing or promotion not a game pieces legitimate because “the cards are a While I sweepstakes.” agree investment, the statute limits pro- foolish I do not believe good to those where the consumer sweepstakes motions or subject of the is deemed promotion product As neither the “legitimate” “good court to be deal.” issue, I can is an legitimacy promotion wisdom nor the exemption machines and cards the deny find no basis to these provided by the statute. years as the device statute has been amended over This evolved, technology structure has remained intact. but the essential in 1929 read: The version in effect *8 premises operate any person keep on his or
It shall be unlawful for State, kept premises operated or within this permit to be on his kind, weigh- any except automatic machine of whatever name or slot con- ing, measuring, machines which are so musical and each give and fair return in value for structed as to a certain uniform therein, deposited no element of chance. coin and in which there is subject Any person violate this section shall be whomsoever who shall dollars, imprisonment a fine not more than one hundred County wherein the offense is commit- upon public works of the thirty days. period ted for a of not more than 196(1922). § 2 S.C.Code I would reverse court, the decision of the circuit and hold these devices are within § the ambit of 61-4-580(3), thus are legal placed when premises.10 licensed
Acting Justice PIEPER:
I concur with Justice opinion Pleicones’ toas the interpreta- tion § of S.C.Code 12-21-2710 and strict § construction of 61- However, since the record is not clear and since the 4-580. trial court declined to § address I would first re- 4-580, 61— mand for a hearing to determine whether the appellants held a permit and allowed the placement of these machines upon licensed premises in accordance with 61—4-580. If the trial court finds upon remand that the permit and licensed premis- met, es requirements have I been would reverse and hold that the devises are legal pursuant §to 61-4-580(3).
v. COMPANY, INC., DARBY Respondent. ELECTRIC
No. 25839. Supreme Court of South Carolina. 8, April
Heard 2004. July Decided It is unclear from the appellants record whether are licensed premises meaning within the of 61-4-580.