||Lovee M. Watts, Staff Attorney
|| Seizure and Destruction of Unlawful Gambling Devices (Video Poker)
|DATE:||February 2, 2006|
S.C. Code Ann. §§ 12-21-2710 and 2712 outline the types of machines and devices that are prohibited by state law and the seizure and destruction of these machines. The S.C. Supreme Court through recent case law has provided further guidance as to what constitutes an unlawful gambling device and addresses an owner’s right to adequate due process in the forfeiture of a machine. When faced with a case pursuant to the above mentioned statutes, please follow the following guidelines:
1. Any law enforcement officer/agency can seize unlawful gambling devices pursuant to S.C. Code Ann. §12-21-2712. However, these actions are typically initiated by S.C. Law Enforcement Division (SLED). Upon seizure of the machine(s), the law enforcement officer must take the machine(s) before any magistrate in the county where the machine(s) were seized.
2. The Magistrate must immediately examine the machine(s) and if satisfied that it is in violation of S.C. Code §12-21-2710 or any other law of this State, shall direct that the machine(s) be destroyed. S.C. Code §12-21-2710 provides:
It is unlawful for any person to keep on his premises or operate or permit to be kept on his premises or operated within this State any vending or slot machine, or any video game machine with a free play feature operated by a slot in which is deposited a coin or thing of value, or other device operated by a slot in which is deposited a coin or thing of value for the play of poker, blackjack, keno, lotto, bingo, or craps, or any machine or device licensed pursuant to Section 12-21-2720 and used for gambling or any punch board, pull board, or other device pertaining to games of chance of whatever name or kind, including those machines, boards, or other devices that display different pictures, words, or symbols, at different plays or different numbers, whether in words or figures or, which deposit tokens or coins at regular intervals or in varying numbers to the player or in the machine, but the provisions of this section do not extend to coin-operated nonpayout pin tables, in-line pin games, or to automatic weighing, measuring, musical, and vending machines which are constructed as to give a certain uniform and fair return in value for each coin deposited and in which there is no element of chance.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for a period of not more than one year, or both.
In determining whether a gaming device is illegal, it is also important to note that possessing/storing gambling machines is illegal even if they are not operational. The magistrate must examine all machines regardless of whether they have previously been declared legal or illegal. See Allendale County Sheriffs Office, et al. v. Two Chess Challenge II, 361 S.C. 581, 606 S.E.2d 471 (2004).
3. S.C. Code Ann. §12-21-2712 states:
Any machine, board, or other device prohibited by Section 12-21-2710 must be seized by any law enforcement officer and at once taken before any magistrate of the county in which the machine, board, or device is seized who shall immediately examine it, and if satisfied that it is in violation of Section 12-21-2710 or any other law of this State, direct that it be immediately destroyed.
Upon examination of the machines, if you find that the machines are not illegal gambling devices, you must complete form SCCA 691, Order of Release. This order requires law enforcement to release the seized machines to the owner. Law Enforcement can appeal the court’s decision as outlined by the Rules of Civil Procedure.
However, if you find the machines are illegal gambling devices, you must complete Form SCCA 690, Order of Destruction/Notice of Post Seizure Hearing (see attached). This order states that the machine(s) are in violation of S.C. Code §12-21-2710 thereby ordering destruction of the machine(s) pursuant to S.C. code §12-21-2712. The order gives the Defendant (owner) notice that they are entitled to request a post seizure hearing within fifteen (15) days from the date of receipt of the order. The Defendant is not entitled to a pre-seizure hearing. The order must be served on both parties by the court pursuant to Rule 6 of the Magistrate Court Rules and Rule 4 of the Rules of Civil Procedure. When the Defendant requests a post seizure hearing, all parties must be given notice of the date, time and location of the hearing.
After a post seizure hearing is conducted, Form SCCA 692, Post Seizure Hearing Order (see attached), must be completed. This order is the court’s final finding concerning the legality of the machines based on the examination of the machines and the evidence presented at the post seizure hearing.
As noted above, S.C. Code Ann. §12-21-2710 exempts from its provision legal vending machines which give a uniform and fair return in value for each coin deposited and in which there is no element of chance. An allegedly illegal video gaming machine is deemed an unlawful gambling device at the moment of seizure; therefore, the machine is “contraband per se” because it is illegal to possess and not susceptible of ownership. The owner of an item deemed contraband per se does not enjoy a constitutional right to a jury trial. Therefore, there is no right to a jury trial at the post seizure hearing. See Mims Amusement Company v. SLED, 366 S.C. 141, 621 S.E.2d 344 (2005).
4. The post seizure hearing is a civil hearing; therefore, either party can appeal the decision to the Circuit Court in the county where the judgment was rendered within 30 days from the judgment. While the case is going through the appellate process, if destruction of the machine(s) was ordered, then the destruction is stayed.
5. The court can award monies associated with illegal gaming devices to the State Law Enforcement Division (SLED). SLED is authorized to retain, expend, and carry forward all monies associated with illegal gaming devices seized by the Division, once the orders of destruction and awarding of these monies have been ordered from the court. No similar provision exists for the award of these monies to other seizing law enforcement agencies. The language awarding these monies is located on Form SCCA 690, Order of Destruction/Notice of Post Seizure Hearing.
In addition to the two cases cited above, it is recommended that you also read the following two cases pertaining to the seizure and destruction of gaming machines: The State v. 192 Coin-Operated Video Game Machines, 525 S.E.2d 872 (2000) and Westside Quik Shop, Inc., et. al. v. Robert M. Stewart, et al., 534 S.E.2d 270 (2000).
The forms will be made available on our website at www.sccourts.org. If you have any questions concerning this process, please contact this office.