HIS WAY HOMES v. Miss. Gaming Com'n

733 So. 2d 764, 1999 Miss. LEXIS 79, 1999 WL 74782
CourtMississippi Supreme Court
DecidedFebruary 18, 1999
Docket98-CC-00690-SCT
StatusPublished
Cited by28 cases

This text of 733 So. 2d 764 (HIS WAY HOMES v. Miss. Gaming Com'n) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HIS WAY HOMES v. Miss. Gaming Com'n, 733 So. 2d 764, 1999 Miss. LEXIS 79, 1999 WL 74782 (Mich. 1999).

Opinion

733 So.2d 764 (1999)

HIS WAY HOMES, INC.
v.
MISSISSIPPI GAMING COMMISSION.

No. 98-CC-00690-SCT.

Supreme Court of Mississippi.

February 18, 1999.

*765 Tommy Eugene Furby, Jackson, Attorney for Appellant.

Office of the Attorney General by Joan Myers, Attorney for Appellee.

EN BANC.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

Statement of the Facts

¶ 1. Appellant His Way Homes, Inc. ("HWH") is a charitable organization licensed by the Mississippi Gaming Commission ("MGC") to conduct bingo games under Mississippi's Charitable Bingo Law, Miss.Code Ann. §§ 97-33-50 et seq. (Rev. 1994 & Supp.1998). Under the statute, "bingo" is not limited to the traditional oral bingo games, but also includes video bingo as well as "pull-tabs," when they are made available as a companion game to bingo and played on the premises of a licensed charitable bingo organization. Miss.Code Ann § 97-33-53(a) (1994). In addition to conducting traditional bingo, HWH maintains ten video pull-tab and bingo machines which are offered for play.

¶ 2. HWH offers video pull-tab and bingo machines for play as many as 35 to 40 hours per week beyond their regular session hours of play. On September 10, 1996, an enforcement agent of MGC found that HWH was paying additional compensation to workers involved in the extended hours operation of these video machines. MGC had previously discovered HWH's practice in 1995, and warned the Executive Director of HWH that such additional compensation violated the statute in MGC's opinion. Nevertheless, HWH continued paying the additional compensation.

¶ 3. MGC then filed a Disciplinary Complaint against HWH charging a violation the statute. The Complaint alleged that HWH paid compensation for the previous two-week period for persons involved in the holding, operating or conducting of licensed games of chance, as follows:

*766
Date               Compensation
June 4, 1996        $7,437.50
June 18, 1996       $7,731.00
July 2, 1996        $7,738.75
July 16, 1996       $7,721.00
July 31, 1996       $7,752.75
Aug. 12, 1996       $7,708.15
Aug. 27, 1996       $7,833.50
Sept. 10, 1996      $7,676.25
Sept. 26, 1996      $7,468.50

By paying these amounts, the Complaint alleged that HWH had exceeded the maximum compensation allowed under Miss. Code Ann. § 97-33-69(3).

¶ 4. The Complaint alleged that since Section 97-33-69(3) provides that a charitable bingo licensee "may pay as compensation for all persons involved in the holding, operating or conducting of any licensed game or games of chance, an amount not to exceed Four Hundred Dollars ($400.00) per session," and since Section 97-33-67(1)(a) provides that "[n]o licensee shall hold, operate or conduct any bingo game ... more often that eight (8) sessions in any one (1) week," then it followed by simple multiplication ($400 × 16) that the maximum allowable compensation for any two-week period would be $6,400.00. For each two week pay period listed, HWH had exceeded the maximum amount.

¶ 5. HWH did not dispute that it paid the amounts alleged in MGC's Disciplinary Complaint. However, HWH did deny that it violated the statute, because it interprets the statute as not prohibiting such compensation.

Procedural History

¶ 6. On October 25, 1996, MGC filed its Disciplinary Complaint against HWH alleging, among other things, that HWH had violated the $400.00 per session compensation limitation of Miss.Code Ann. § 97-33-69(3) (Supp.1998). A hearing was held on the Disciplinary Complaint on February 3, 1997, and the Hearing Examiner rendered his decision on April 30, 1997, finding that HWH had violated Miss.Code Ann. § 97-33-69(3) and levied a fine of $1,000 against HWH for that violation.

¶ 7. HWH appealed the decision of the Hearing Examiner to MGC on May 19, 1997. MGC sustained the ruling of the Hearing Examiner at its June 26, 1997 regular monthly meeting. Having exhausted its administrative remedies, on July 25, 1997, HWH then filed a Petition for Writ of Certiorari in the Circuit Court of Hinds County, Mississippi, First Judicial District, seeking judicial review of the adverse decision. The Writ of Certiorari was issued over MGC's Motion to Dismiss the Petition on January 27, 1998. The Circuit Court rendered its Opinion and Order on March 6, 1998 affirming the decision of the MGC.

¶ 8. Aggrieved, HWH now appeals the decision of the Circuit Court to this Court and raises the following contentions on appeal:

I. THE FOUR HUNDRED DOLLAR ($400.00) SESSION PAY LIMITATION DOES NOT INCLUDE COMPENSATION PAID TO WORKERS CONDUCTING OUT-OF-SESSION PLAY PURSUANT TO MISS. CODE ANN. § 97-33-67(1)(A) (SUPP.1998).
II. HWH CLEARLY DID NOT PAY MORE THAN FOUR HUNDRED DOLLARS ($400.00) IN ANY SESSION AND THEREFORE DID NOT VIOLATE MISS. CODE ANN. § 97-33-69(3) (SUPP.1998).

STANDARD OF REVIEW

¶ 9. The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party. Sprouse v. Mississippi Employment Security Comm., 639 So.2d 901, 902 (Miss. 1994); Mississippi Comm. on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So.2d 1211, 1215 (Miss.1993); Melody Manor Convalescent Center v. Mississippi State Department of Health, 546 So.2d 972, 974 (Miss.1989). *767 There is a rebuttable presumption in favor of the agency's decisions; the burden of proving to the contrary is on the challenging party. Sprouse, 639 So.2d at 902; Chickasaw County, 621 So.2d at 1216.

¶ 10. Appellate review of an agency decision is limited to the record and the agency's findings. Chickasaw County, 621 So.2d at 1216; Mississippi Employment Security Commission v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). The reviewing court cannot substitute its judgment for that of the agency or reweigh the facts of the case. Sprouse, 639 So.2d at 902; Chickasaw County, 621 So.2d at 1216; Mississippi Public Service Commission v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992). Chancery and circuit courts are held to the same standard as this Court when reviewing agency decisions. Chickasaw County, 621 So.2d at 1215. When this Court finds that the lower court has exceeded its authority in overturning an agency decision, we will reverse and reinstate the agency's decision. Chickasaw County, 621 So.2d at 1215; Merchants Truck Line, 598 So.2d at 782.

¶ 11. Unless the agency's interpretation is repugnant to the plain meaning of the statute thereof, the court is to defer to the agency's interpretation. Mississippi State Tax Comm'n v. Lady Forest Farms, Inc., 701 So.2d 294, 296 (Miss. 1997). See also Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 16 (Miss.1995); Tower Loan of Mississippi v. Mississippi State Tax Comm'n, 662 So.2d 1077 (Miss. 1995); Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So.2d 1287, 1289 (Miss. 1987).

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Bluebook (online)
733 So. 2d 764, 1999 Miss. LEXIS 79, 1999 WL 74782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/his-way-homes-v-miss-gaming-comn-miss-1999.