H. B. 2882
(By Mr. Speaker, (Mr. Thompson))
[By Request of the Executive]
[Introduced February 27, 2009; referred to the
Committee on Government Organization then Finance.]
A BILL to repeal §11-16-28 of the Code of West Virginia, 1931, as
amended; to repeal §19-23-6 and §19-23-30 of said code; to
repeal §29-5A-2 of said code; to repeal §29-22-26 of said
code; to repeal §60-2-2, §60-2-3, §60-2-7, §60-2-9, §60-2-11,
§60-2-12 and §60-2-13 of said code; to amend and reenact
§5F-1-3a of said code; to amend and reenact §5F-2-1 of said
code; to amend and reenact §6-7-2a of said code; to amend and
reenact §11-9-2 and §11-9-2a of said code; to amend said code
by adding thereto a new section, designated §11-9-2b; to amend
and reenact §11-16-3, §11-16-4 and §11-16-27 of said code; to
amend and reenact §11B-1-2 of said code; to amend and reenact
§19-23-1, §19-23-2, §19-23-3, §19-23-4, §19-23-5, §19-23-11,
§19-23-16, §19-23-17 and §19-23-28 of said code; to amend and
reenact §29-5A-1, §29-5A-3, §29-5A-5, §29-5A-14 and §29-5A-24 of said code; to amend and reenact §29-22-1, §29-22-2,
§29-22-3, §29-22-4, §29-22-5, §29-22-6, §29-22-7, §29-22-8,
§29-22-13 and §29-22-19 of said code; to amend said code by
adding thereto a new section, designated §29-22-8a; to amend
and reenact §29-22A-3, §29-22A-7 and §29-22A-10 of said code;
to amend and reenact §29-22B-306 and §29-22B-308 of said code;
to amend said code by adding thereto a new section, designated
§29-22B-335; to amend and reenact §29-22C-3 of said code; to
amend and reenact §29-25-2 of said code; to amend said code by
adding thereto two new sections designated §47-20-1a and
§47-20-1b; to amend and reenact §47-20-2 of said code; to
amend said code by adding thereto two new sections, designated
§47-21-1a and §47-21-1b; to amend and reenact §47-21-2 of said
code; to amend said code by adding thereto two new sections,
designated §47-23-1a and §47-23-1b; to amend and reenact
§47-23-2 of said code; to amend and reenact §60-1-4 and
§60-1-5 of said code; to amend and reenact §60-2-1 of said
code; to amend and reenact §60-3A-9 of said code; and to amend
said code by adding thereto one new section, designated
§60-3A-32; all relating to the transfer of authority over
racing, boxing, charitable bingo, charitable raffle,
charitable raffle boards, charitable games and lottery to the
State Gaming and Alcohol Control Agency and State Gaming and Alcohol Control Commission within the Department of Revenue;
establishing findings; renaming Lottery Commission as State
Gaming and Alcohol Control Commission; establishing commission
membership requirements; establishing that no member may have
a vested interest in commission-regulated entities; abolishing
the Racing Commission and the Athletic Commission and
transferring their respective powers and duties to State
Gaming and Alcohol Control Commission; transferring powers and
duties of Tax Commissioner involving charitable bingo and
raffles and charitable raffle boards and games to State Gaming
and Alcohol Control Commission; transferring employees from
the regulation of bingo, charitable raffle, and charitable
raffle boards and games to the State Gaming and Alcohol
Control Agency; specifying effective dates; creating the
position of the Director of the State Gaming and Alcohol
Control Agency; providing for the salary of the director and
review of the compensation of the director and the chair and
members of the State Gaming and Alcohol Control Commission;
providing that bingo, charitable raffle, and charitable raffle
boards and games fees be appropriated into a nonappropriated
special account established in the State Treasury to pay
salaries and other expenses of the State Gaming and Alcohol
Control Agency and that excess fees be transferred to the General Revenue Fund; defining terms; providing the transfer
of administration of the regulation of nonintoxicating beer to
the State Gaming and Alcohol Control Commission from the Tax
Commissioner; providing that the director appoint employees of
the State Gaming and Alcohol Control Agency to regulate
nonintoxicating beer; providing for a percentage of taxes
imposed on nonintoxicating beer be deposited for
administrative expenses of the State Gaming and Alcohol
Control Agency; providing that the Secretary of the Department
of Revenue maintain his or her principal office at the seat of
government and providing that offices and divisions of the
department may maintain offices elsewhere; providing for the
regulation of horse and dog racing by the State Gaming and
Alcohol Control Commission; abolishing the Racing Commission;
providing for an omnibus report to the Governor that includes
the divisions of the State Gaming and Alcohol Control Agency;
abolishing the position of Racing Secretary and other offices;
providing that the director employ certain racing employees;
providing for the transfer of employees from the Racing
Commission; providing for the distribution of revenues from
racing license taxes or pari-mutuel pools taxes; providing for
a procedure for the suspension or revocation of a racing
permit, including a hearing examiner; abolishing the State Athletic Commission; providing for the deposit of boxing,
sparring, and license promoter's license fees and providing
for their use by the State Gaming and Alcohol Control Agency;
providing that rules promulgated by the State Athletic
Commission remain in full force and effect; establishing
legislative purpose; providing for the continuation of
judicial rulings; providing that the State Gaming and Alcohol
Control Commission and the Director of the State Gaming and
Alcohol Control Agency has jurisdiction over horse and dog
racing, charitable bingo gaming and charitable raffle gaming,
the sport of boxing, and nonalcoholic beer and alcohol;
providing that the State Gaming and Alcohol Control Commission
may adopt emergency rules; providing that the Director of the
State Lottery Office shall continue as the Director of the
State Gaming and Alcohol Control Agency until a successor is
appointed; creating divisions within the State Gaming and
Alcohol Control Agency; providing that the Director may
authorize games; providing that certain law enforcement
agencies and the Attorney General shall provide information
regarding lottery to the Director; providing that the Director
may designate enforcement agents and authorizing agents to
investigate complaints; providing for the removal of racing
officials; providing for capital improvements at racetracks; establishing that the director, with approval, may sell
certain parcels of real estate; providing that the
Commissioner of Motor Vehicles shall issue Class A license
plates to the State Gaming and Alcohol Control Agency;
establishing the State Gaming and Alcohol Control Agency -
Administrative Account; prohibiting employees of the State
Gaming and Alcohol Control Agency from certain actions;
providing for an audit of accounts and transactions of the
State Gaming and Alcohol Control Agency; removing the
requirement that racetracks applying for a video lottery
license or license renewal have certain agreements with
certain representatives; providing that the rules promulgated
by the Tax Commissioner and licenses and permits issued shall
remain in effect; providing that an applicant for a retail
license for the sale of liquor is entitled to a hearing before
the State Gaming and Alcohol Control Commissioner or a hearing
examiner designated by the commission; and providing that
license fees shall be deposited in nonappropriated special
account to pay for salaries and other expenses; abolishing
limit of investigators for criminal investigation division of
the State Tax Division; providing that investigators for the
criminal investigation division of the State Tax Division have
all the lawful powers delegated to the West Virginia State Police.
Be it enacted by the Legislature of West Virginia:
That §11-16-28 of the Code of West Virginia, 1931, as amended;
be repealed; that §19-23-6 and §19-23-30 of said code be repealed;
that §29-5A-2 of said code be repealed; that §29-22-26 of said code
be repealed; that §60-2-2, §60-2-3, §60-2-7, §60-2-9, §60-2-11,
§60-2-12 and §60-2-13 of said code be repealed; that §5F-1-3a of
said code be amended and reenacted; that §5F-2-1 of said code be
amended and reenacted; that §6-7-2a of said code be amended and
reenacted; that §11-9-2 and §11-9-2a of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §11-9-2b; that §11-16-3, §11-16-4 and §11-16-27
of said code be amended and reenacted; that §11B-1-2 of said code
be amended and reenacted; that §19-23-1, §19-23-2, §19-23-3,
§19-23-4, §19-23-5, §19-23-11, §19-23-16, §19-23-17 and §19-23-28
of said code be amended and reenacted; that §29-5A-1, §29-5A-3,
§29-5A-5, §29-5A-14 and §29-5A-24 of said code be amended and
reenacted; that §29-22-1, §29-22-2, §29-22-3, §29-22-4, §29-22-5,
§29-22-6, §29-22-7, §29-22-8, §29-22-13 and §29-22-19 of said code
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §29-22-8a; that §29-22A-3,
§29-22A-7 and §29-22A-10 of said code be amended and reenacted;
that §29-22B-306 and §29-22B-308 of said code be amended and reenacted; that said code be amended by adding thereto a new
section, designated §29-22B-335; that §29-22C-3 of said code be
amended and reenacted; that §29-25-2 of said code be amended and
reenacted; that said code be amended by adding thereto two new
sections, designated §47-20-1a and §47-20-1b; that §47-20-2 of said
code be amended and reenacted; that said code be amended by adding
thereto two new sections, designated §47-21-1a and §47-21-1b; that
§47-21-2 of said code be amended and reenacted; that said code be
amended by adding thereto two new sections, designated §47-23-1a
and §47-23-1b; that §47-23-2 of said code be amended and reenacted;
that §60-1-4 and §60-1-5 of said code be amended and reenacted;
that §60-2-1 of said code be amended and reenacted; that §60-3A-9
of said code be amended and reenacted; and that said code be
amended by adding thereto one new section, designated §60-3A-32,
all to read as follows:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-3a. Executive Compensation Commission.
There is
hereby created continued an Executive Compensation
Commission composed of three members, one of whom shall be the
Secretary of Administration, one of whom shall be appointed by the
Governor from the names of two or more nominees submitted by the
President of the Senate, and one of whom shall be appointed by the Governor from the names of two or more nominees submitted by the
Speaker of the House of Delegates. The names of such nominees
shall be submitted to the Governor by not later than June 1, 2000,
and the appointment of such members shall be made by the Governor
by not later than July 1, 2000. The members appointed by the
Governor shall have had significant business management experience
at the time of their appointment and shall serve without
compensation other than reimbursement for their reasonable expenses
necessarily incurred in the performance of their commission duties.
For the regular session of the Legislature, 2001, and every four
years thereafter, the commission shall review the compensation for
cabinet secretaries and other appointed officers of this state,
including, but not limited to, the following: Commissioner,
Division of Highways; Commissioner, Bureau of Employment Programs;
Director, Division of Environmental Protection; Commissioner,
Bureau of Senior Services; Director of Tourism; Commissioner,
Division of Tax; Administrator, Division of Health; Commissioner,
Division of Corrections; Director, Division of Natural Resources;
Superintendent, State Police;
administrator, lottery division;
Director, State Gaming and Alcohol Control Agency; Director, Public
Employees Insurance Agency;
Administrator, Alcohol Beverage Control
Commission; Commissioner, Division of Motor Vehicles; Director,
Division of Personnel; Adjutant General;
Chairman, Chair, Health Care Authority; members, Health Care Authority; Director, Division
of Rehabilitation Services; Executive Director, Educational
Broadcasting Authority; Executive Secretary, Library Commission;
chairman Chair and members of the Public Service Commission;
Director of Emergency Services; Administrator, Division of Human
Services; Executive Director, Human Rights Commission; Director,
Division of Veterans Affairs; Director, Office of Miner's Health
Safety and Training; Commissioner, Division of Banking;
Commissioner, Division of Insurance; Commissioner, Division of
Culture and History; Commissioner, Division of Labor; Director,
prosecuting attorneys Institute; Director, Board of Risk and
Insurance Management; Commissioner, Oil and Gas Conservation
Commission; Director, Geological and Economic Survey; Executive
Director, Water Development Authority; Executive Director, Public
Defender Services; Director, State Rail Authority;
chairman Chair
and members of the Parole Board; members, Employment Security
Review Board;
members, workers' compensation appeal board;
chairman, Racing Commission; Chair and members, State Gaming and
Alcohol Control Commission; Executive Director, Women's Commission;
and Director, Hospital Finance Authority.
Following this review, but not later than the twenty-first day
of such regular session, the commission shall submit an executive
compensation report to the Legislature to include specific recommendations for adjusting the compensation for the officers
described in this section. The recommendation may be in the form
of a bill to be introduced in each house to amend this section to
incorporate the recommended adjustments.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARD.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five
of this code;
(2) Public Employees Insurance Agency and Public Employees
Insurance Agency Advisory Board provided in article sixteen,
chapter five of this code;
(3) Governor's Mansion Advisory Committee provided
for in
article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article
one-a, chapter twenty-nine of this code;
(5) West Virginia Public Employees Grievance Board provided
for in article three, chapter six-c of this code;
(6) Board of Risk and Insurance Management provided
for in
article twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three,
chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one,
chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter
twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article
two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article
ten-d, chapter five of this code; and
(12) Real Estate Division provided in article ten, chapter
five-a of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with
the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) Workforce West Virginia provided in chapter twenty-one-a
of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter
five-b of this code.
(c) The Economic Development Authority provided in article
fifteen, chapter thirty-one of this code is continued as an
independent agency within the executive branch.
(d) The Water Development Authority and Board provided in
article one, chapter twenty-two-c of this code is continued as an
independent agency within the executive branch.
(e) The following agencies and boards, including all of the
allied, advisory and affiliated entities, are transferred to the
Department of Environmental Protection for purposes of
administrative support and liaison with the Office of the Governor:
(1) Air Quality Board provided in article two, chapter
twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in
article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of
this code;
(2) Educational Broadcasting Authority provided in article
five, chapter ten of this code;
(3) Division of Culture and History provided in article one,
chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section
two, article ten-a, chapter eighteen of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven,
chapter five of this code;
(2) Division of Human Services provided in article two,
chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter
sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight of this code.
(h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Military Affairs and
Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter
fifteen of this code;
(4) West Virginia State Police provided in article two,
chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen
of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter
fifteen of this code;
(7) Division of Corrections provided in chapter twenty-five of
this code;
(8) Fire Commission provided in article three, chapter
twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided
in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided in article twelve,
chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a of this code.
(I) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2)
Racing Commission provided in article twenty-three,
chapter nineteen of this code State Gaming and Alcohol Control
Commission and State Gaming and Alcohol Control Agency;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) (3) Agency of Insurance Commissioner provided in article
two, chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) (4) Board of Banking and Financial Institutions provided
in article three, chapter thirty-one-a of this code;
(7) (5) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) (6) Division of Banking provided in article two, chapter thirty-one-a of this code;
(9) (7) The State Budget Office provided in article two,
chapter eleven-b of this code;
(10) (8) The Municipal Bond Commission provided in article
three, chapter thirteen of this code;
and
(11) (9) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code.
and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine of this code
(j) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority
provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two,
chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter
seventeen of this code.
(k) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(l) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications
of members of the boards are not affected by the enactment of this
chapter. All boards that are appellate bodies or are independent
decisionmakers
shall may not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(m) Any department previously transferred to and incorporated
in a department by prior enactment of this section means a division
of the appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created
in section two, article one of this chapter, the reference means a
division of the appropriate department and any reference to a division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(n) When an agency, board or commission is transferred under
a bureau or agency other than a department headed by a secretary
pursuant to this section, that transfer is solely for purposes of
administrative support and liaison with the office of the Governor,
a department secretary or a bureau. Nothing in this section
extends the powers of department secretaries under section two of
this article to any person other than a department secretary and
nothing limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment;
qualifications; powers and salaries of such officers.
(a) Each of the following appointive state officers named in
this subsection shall be appointed by the Governor, by and with the
advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the
term for which the Governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and is
hereby granted all of the powers and authority and shall perform
all of the functions and services
heretofore vested in and
performed by virtue of existing law respecting each office.
Prior to July 1, 2006, each such named appointive state
officer shall continue to receive the annual salaries they were
receiving as of the effective date of the enactment of this section
in 2006, and thereafter, notwithstanding any other provision of
this code to the contrary,
The annual salary of each named appointive state officer shall
be as follows:
Commissioner, Division of Highways, $92,500; Commissioner,
Division of Corrections, $80,000; Director, Division of Natural
Resources, $75,000; Superintendent, State Police, $85,000;
Commissioner, Division of Banking, $75,000; Commissioner, Division
of Culture and History, $65,000;
Commissioner, Alcohol Beverage
Control Commission, seventy-five thousand dollars; Commissioner,
Division of Motor Vehicles, $75,000; Chairman, Health Care
Authority, $80,000; members, Health Care Authority, $70,000;
Director, Human Rights Commission, $55,000; Commissioner, Division
of Labor, $70,000; Director, Division of Veterans' Affairs,
$65,000; Chairperson, Board of Parole, $55,000; members, Board of
Parole, $50,000; members, Employment Security Review Board,
$17,000; and Commissioner, Bureau of Employment Programs, $75,000. Secretaries of the departments shall be paid an annual salary as
follows: Health and Human Resources, $95,000; Transportation,
$95,000:
Provided, That if the same person is serving as both the
Secretary of Transportation and the Commissioner of Highways, he or
she shall be paid $120,000; Revenue, $95,000; Military Affairs and
Public Safety, $95,000; Administration, $95,000; Education and the
Arts, $95,000; Commerce, $95,000; and Environmental Protection,
$95,000:
Provided, however, That any increase in the salary of any
current appointive state officer named in this subsection pursuant
to the reenactment of this subsection during the regular session of
the Legislature in 2006, that exceeds $5,000 shall be paid to such
officer or his or her successor beginning July 1, 2006, in annual
increments of $5,000 per fiscal year, up to the maximum salary
provided in this subsection:
Provided further, That if the same
person is serving as both the Secretary of Transportation and the
Commissioner of Highways, then the annual increments of $5,000 per
fiscal year do not apply.
(b) Each of the state officers named in this subsection shall
continue to be appointed in the manner prescribed in this code and,
prior to July 1, 2006, each of the state officers named in this
subsection shall continue to receive the annual salaries he or she
was receiving as of the effective date of the enactment of this
section in 2006, and shall thereafter, notwithstanding any other provision of this code to the contrary, be paid an annual salary as
follows:
Director, Board of Risk and Insurance Management, $80,000;
Director, Division of Rehabilitation Services, $70,000; Director,
Division of Personnel, $70,000; Executive Director, Educational
Broadcasting Authority, $75,000; Secretary, Library Commission,
$72,000; Director, Geological and Economic Survey, $75,000;
Executive Director, prosecuting attorneys Institute, $70,000;
Executive Director, Public Defender Services, $70,000;
Commissioner, Bureau of Senior Services, $75,000; Director, State
Rail Authority, $65,000; Executive Director, Women's Commission,
$45,000; Director, Hospital Finance Authority, $35,000;
member,
Racing Commission, twelve thousand dollars; Chairman, Public
Service Commission, $85,000; members, Public Service Commission,
$85,000; Director, Division of Forestry, $75,000; Director,
Division of Juvenile Services, $80,000; and Executive Director,
Regional Jail and Correctional Facility Authority, $80,000:
Provided, That any increase in the salary of any current appointive
state officer named in this subsection pursuant to the reenactment
of this subsection during the regular session of the Legislature in
2006 that exceeds $5,000 shall be paid to such officer or his or
her successor beginning July 1, 2006, in annual increments of
$5,000 per fiscal year, up to the maximum salary provided in this subsection.
(c) Each of the following appointive state officers named in
this subsection shall be appointed by the Governor, by and with the
advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the
term for which the Governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and
is
hereby granted all of the powers and authority and shall perform
all of the functions and services
heretofore vested in and
performed by virtue of existing law respecting each office.
Prior to July 1, 2006, each such named appointive state
officer shall continue to receive the annual salaries they were
receiving as of the effective date of the enactment of this section
in 2006, and thereafter, notwithstanding any other provision of
this code to the contrary, the annual salary of each named
appointive state officer shall be as follows:
Commissioner, State Tax Division, $92,500; Commissioner,
Insurance Commission, $92,500; Director,
Lottery Commission,
$92,500 State Gaming and Alcohol Control Agency, $120,000;
Director, Division of Homeland Security and Emergency Management,
$65,000; and Adjutant General, $92,500.
(d) No increase in the salary of any appointive state officer
pursuant to this section shall be paid until and unless the
appointive state officer has first filed with the State Auditor and
the Legislative Auditor a sworn statement, on a form to be
prescribed by the Attorney General, certifying that his or her
spending unit is in compliance with any general law providing for
a salary increase for his or her employees. The Attorney General
shall prepare and distribute the form to the affected spending
units.
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following
taxes imposed by this chapter:
(1) Inheritance and transfer taxes and estate taxes imposed by
article eleven of this chapter;
(2) Business registration tax imposed by article twelve of
this chapter;
(3) Minimum severance tax on coal imposed by article twelve-b
of this chapter;
(4) Corporate license tax imposed by article twelve-c of this
chapter;
(5) Business and occupation tax imposed by article thirteen of
this chapter;
(6) Severance and business privilege taxes imposed by article
thirteen-a of this chapter;
(7) Additional severance taxes imposed by article thirteen-v
of this chapter;
(8) Telecommunications tax imposed by article thirteen-b of
this chapter;
(9) Gasoline and special fuels excise tax imposed by article
fourteen of this chapter;
(10) Motor fuels excise tax imposed by article fourteen-c of
this chapter;
(11) Motor carrier road tax imposed by article fourteen-a of
this chapter;
(12) Interstate fuel tax agreement authorized by article
fourteen-b of this chapter;
(13) Consumers sales and service tax imposed by article
fifteen of this chapter;
(14) Use tax imposed by article fifteen-a of this chapter;
(15) Tobacco products excise taxes imposed by article
seventeen of this chapter;
(16) Soft drinks tax imposed by article nineteen of this
chapter;
(17) Personal income tax imposed by article twenty-one of this
chapter;
(18) Business franchise tax imposed by article twenty-three of
this chapter;
(19) Corporation net income tax imposed by article twenty-four
of this chapter; and
(20) Health care provider taxes imposed by article
twenty-seven of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter and to any other articles of this chapter when
application is expressly provided by the Legislature.
(c) The provisions of this article also apply to municipal
sales and use taxes imposed pursuant to article thirteen-c, chapter
eight of this code.
the charitable bingo fee imposed by sections
six and six-a, article twenty, chapter forty-seven of this code;
the charitable raffle fee imposed by section seven, article
twenty-one of said chapter; and the charitable raffle boards and
games fees imposed by section three, article twenty-three of said
chapter
(d)
Each and every provision The provisions of this article
applies apply to the articles of this chapter listed in subsections
(a), (b) and (c) of this section, with like effect, as if the provisions of this article were applicable only to the tax and were
set forth in extenso in this article.
§11-9-2a. Criminal investigation division established.
(a)
Criminal investigation division. -- A criminal
investigation division consisting of
no more than twelve
investigators, of which one investigator shall serve as division
director, plus necessary support staff, all of whom are exempt from
the classified service, is
hereby established continued in the
State Tax Division for the purpose of assuring compliance with laws
and rules pertaining to the taxes, fees or credits administered
under article ten of this chapter,
including, but not limited to,
the provisions of articles twenty, twenty-one and twenty-three,
chapter forty-seven of this code, but not including except for
income taxes imposed on individuals by article twenty-one of this
chapter.
(b)
Special audits division. -- A special audits division
consisting of
no more than eight tax examiners, plus necessary
support staff, all of whom are covered by the classified service,
is
hereby established continued in the auditing section of the
State Tax Division for purposes of assuring compliance with laws
and rules pertaining to taxes, fees or credits administered under
article ten of this chapter,
including, but not limited to, the
provisions of articles twenty, twenty-one and twenty-three, chapter forty-seven of this code, but not including except for income taxes
imposed on individuals by article twenty-one of this chapter.
(c) The Legislature
hereby finds that the enforcement of the
laws and rules pertaining to the taxes, fees or credits
administered under article ten of this chapter, as are applicable
to persons whose residence or principal place of business is
outside of the State of West Virginia, requires greater efforts and
investigation than required for resident persons,
subject thereto,
and does further find that there is a greater rate of noncompliance
with
said the laws and rules by nonresident persons. Therefore,
the criminal investigation division and the special audits division
created in subsections (a) and (b) of this section are
hereby
directed to expend a significant amount of their efforts to ensure
compliance with the laws and rules pertaining to taxes, fees or
credits administered under article ten of this chapter in
accordance with the authority provided in this section, by persons
whose residence or principal place of business is located outside
the State of West Virginia.
(d) Deposits of certain fees. -- Charitable bingo fees imposed
by article twenty, chapter forty-seven of this code; charitable
raffle fees imposed by article twenty-one of said chapter; and
charitable raffle boards and games fees imposed by article
twenty-three of said chapter in an amount not to exceed the amount appropriated by the Legislature in any fiscal year shall be
deposited in a special revenue account established in the Office of
the Treasurer. The special revenue account shall be used to
support compliance expenditures relating to the establishment,
operation, maintenance and support of the criminal investigation
division established in subsection (a) of this section and the
special audits division established in subsection (b) of this
section. The expenditures may include, but shall not be limited
to, employee compensation, equipment, office supplies and travel
expenses. On the last day of each fiscal year, unencumbered funds
in the special revenue account in excess of one hundred fifty
thousand dollars shall be transferred to the General Revenue Fund.
(e) (d) Investigators. -- Investigators employed in the
criminal investigation division shall have a background in
accounting or law enforcement or related fields pursuant to article
twenty-nine, chapter thirty of this code, or its equivalent. Any
investigator designated by the Tax Commissioner shall have all the
lawful powers delegated to members of the
division of public safety
West Virginia State Police except the power to carry firearms and
shall have the authority to enforce the provisions of this article
and the criminal provisions of any other article of this code to
which this article applies, in any county or municipality of this
state. The Tax Commissioner shall establish additional standards as he or she considers applicable or necessary. Any
employee
investigator shall, before entering upon the discharge of his or
her duties, execute a bond with security in the sum of $3,500,
payable to the State of West Virginia, conditioned for the faithful
performance of the
employee's investigator's duties and the bond
shall be approved as to form by the Attorney General and shall be
filed with the Secretary of State for preservation in that office.
The
division of public safety West Virginia State Police, any
county sheriff or deputy sheriff and any municipal police officer
upon request by the Tax Commissioner is
hereby authorized to assist
the Tax Commissioner in enforcing the provisions of this article
and any criminal penalty provision of any article of this code to
which this article applies.
(f) (e) Class A license plates. -- Notwithstanding the
provisions of article three, chapter seventeen-a of this code, upon
application by the Tax Commissioner and payment of fees, the
Commissioner of Motor Vehicles shall issue a maximum of
twenty
twelve Class A license plates to be used on state owned or leased
vehicles assigned to investigators employed in the criminal
investigation division.
(g) (f) Reports. -- On July 1 of each year,
beginning in the
year one thousand nine hundred ninety-four, the Tax Commissioner
shall present a written report to the joint committee on government operations on the division's compliance with the provisions of this
section, including, but not limited to, activities of the divisions
created by this section and disbursement of funding.
§11-9-2b. Transfer of the Tax Commissioner's duties with respect
to charitable bingo, charitable raffle and the
wholesale tax on charitable raffle boards and games
to the State Gaming and Alcohol Control Agency; fees
to support State Gaming and Alcohol Control Agency.
(a) Authority transferred. -- Effective July 1, 2009, the Tax
Commissioner's authority and regulation of charitable bingo games
and charitable raffle games, and the administration of the
wholesale fee on charitable raffle boards and games, are
transferred to the Director of the State Gaming and Alcohol Control
Agency as created by section six, article twenty-two, chapter
twenty-nine.
(b) Employees transferred. -- Effective July 1, 2009, persons
employed by the Tax Commissioner under this article who are engaged
in the regulation of charitable bingo games and charitable raffle
games, and the administration of the wholesale fee on charitable
raffleboards and games, are transferred to the State Gaming and
Alcohol Control Agency as created by section seven, article
twenty-two, chapter twenty-nine.
(c) Deposits of certain fees. -- Charitable bingo fees imposed by article twenty, chapter forty-seven of this code, charitable
raffle fees imposed by article twenty-one of said chapter and
charitable raffle boards and games fees imposed by article
twenty-three of said chapter shall be deposited in the
nonappropriated special account established in the State Treasury
by section eight-a, article twenty-two, chapter twenty-nine of this
code. The fees deposited in the nonappropriated special account
shall be used by the State Gaming and Alcohol Control Agency to pay
salaries and other expenses. The expenditures may include, but may
not be limited to, employee compensation, equipment, computer
software, office supplies, rent and travel expenses. On the last
day of each fiscal year, unencumbered and undesignated funds from
deposits of charitable bingo fees imposed by article twenty,
chapter forty-seven of this code, charitable raffle fees imposed by
article twenty-one of said chapter, and charitable raffle boards
and games fees imposed by article twenty-three of said chapter that
remain in the nonappropriated special account in excess of $250,000
shall be transferred to the General Revenue Fund.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-3. Definitions.
For the purpose of this article, except where the context
clearly requires differently:
(1) "Brewer" or "manufacturer" means any person, firm, association, partnership or corporation manufacturing, brewing,
mixing, concocting, blending, bottling or otherwise producing or
importing or transshipping from a foreign country nonintoxicating
beer for sale at wholesale to any licensed distributor.
(2) "Brewpub" shall mean a place of manufacture of
nonintoxicating beer owned by a resident brewer, subject to federal
regulations and guidelines, a portion of which premises are
designated for retail sales.
(3) "Commissioner"
or "commission" means the
West Virginia
Alcohol Beverage Control Commissioner State Gaming and Alcohol
Control Commission created by section four, article twenty-two,
chapter twenty-nine of this code.
(4) "Distributor" means any person jobbing or distributing
nonintoxicating beer to retailers at wholesale and whose warehouse
and chief place of business shall be within this state.
(5) "Director" means the Director of the State Gaming and
Alcohol Control Agency created by section six, article twenty-two,
chapter twenty-nine of this code.
(5) (6) "Nonintoxicating beer" means all cereal malt beverages
or products of the brewing industry commonly referred to as beer,
lager beer, ale and all other mixtures and preparations produced by
the brewing industry, including malt coolers and containing at
least one half of one percent alcohol by volume, but not more than four and two-tenths percent of alcohol by weight, or six percent by
volume, whichever is greater, all of which are hereby declared to
be nonintoxicating, and the word "liquor" as used in chapter sixty
of this code shall not be construed to include or embrace
nonintoxicating beer nor any of the beverages, products, mixtures
or preparations included within this definition.
(6) (7) "Original container" means the container used by the
brewer at the place of manufacturing, bottling, or otherwise
producing nonintoxicating beer for sale at wholesale.
(7) (8) "Person" means and includes an individual, firm,
partnership, limited partnership, association or corporation.
(8) (9) "Resident brewer" shall mean any person, firm,
association, partnership, or corporation whose principal place of
business is within the state.
(9) (10) "Retailer" means any person selling, serving, or
otherwise dispensing nonintoxicating beer and all products
regulated by this article, including, but not limited to, any malt
cooler, at his established and licensed place of business.
(11) "Tax Commissioner" means the Tax Commissioner of the
State of West Virginia or the commissioner's designee.
§11-16-4. Responsibility of State Gaming and Alcohol Control
Commission; administrators, employees and agents;
administration and enforcement expenses.
(a)
Effective July 1, 2009, the
Alcohol Beverage Control
Commissioner State Gaming and Alcohol Control Commission described
under the provisions of article two, chapter sixty created by
section four, article twenty-two, chapter twenty-nine of this code
shall have sole responsibility for the administration of this
article, except for those responsibilities expressly vested in the
Tax Commissioner under sections thirteen, fourteen and fifteen of
this article
and for those responsibilities delegated to and
reserved for the Director of the State Gaming and Alcohol Control
Agency created by section six, article twenty-two, chapter
twenty-nine of this code.
All acts heretofore performed by the nonintoxicating beer
commissioner under previous proceedings of this article are hereby
again ratified and confirmed, and the commissioner shall succeed to
the same position previously maintained by the nonintoxicating beer
commissioner in all proceedings and official acts instituted and
perfected under the provisions of this article prior to the
effective date of this section.
(b) The
commissioner director shall appoint an adequate number
of competent persons to serve as administrators, employees and
agents of the
commissioner State Gaming and Alcohol Control Agency
for the purpose of keeping all necessary accounts and records required under the provisions of this article; investigating the
books, accounts, records and other papers of retailers,
distributors and brewers; investigating applicants for license and
the places of business of retailers, distributors and brewers;
procuring evidence with respect to violations of the provisions of
this article, and particularly for use at hearings held by the
commissioner commission and on proceedings instituted in court for
the purpose of revoking or suspending licenses hereunder; and such
administrators, employees and agents shall perform such other
duties as the
commissioner director may
direct require. Such
administrators, employees and agents shall have the right to enter
any licensed premises in the state in the performance of their
duties at any hour of the day or night when beer is being sold or
consumed on such licensed premises. Refusal by any licensee or by
any employee of a licensee to permit such administrators, employees
or agents to enter the licensed premises shall be an additional
cause for revocation or suspension of the license of such licensee
by the
commissioner director. The compensation of such
administrators, employees and agents shall be fixed by the
commissioner: Provided, That the commissioner may employ up to
eleven special investigators who shall be nonclassified exempt
employees of the division director.
(c) Services rendered the state by clerks, sheriffs,
commissioners in chancery and special commissioners, designated by
the court, and court reporters and stenographers performing
services for said
commissioner director and fees of witnesses
summoned on behalf of the state in proceedings to revoke or suspend
retailer's licenses shall be treated as part of the expenses of
administration and enforcement, and such officers and said other
persons shall be paid the same fees and charges as would be
chargeable for like services performed for an individual; and the
compensation of such clerks, sheriffs and other persons shall be
paid out of the amount allocated for the expense of administration
enforcement, after the amount of such fees and other charges shall
be certified by the court to the Auditor.
§11-16-27. Revenue collected and paid to State Treasurer; expense
of administration.
Taxes imposed and collected under the provisions of this
article shall be paid to the State Treasurer in the manner provided
by law, and the taxes imposed by sections nine and thirteen of this
article shall be credited to the state fund, general revenue:
The
expenses of administration and enforcement shall be paid out of the
taxes collected under sections nine and thirteen of this article,
but shall not exceed fifteen percent of the amount so collected.
Provided, That fifteen percent of the taxes collected under sections nine and thirteen of this article shall be deposited in
the State Treasury in the nonappropriated special account created
by section eight-a, article twenty-two, chapter twenty-nine of this
code and used for the administrative expenses of the State Gaming
and Alcohol Control Agency.
CHAPTER 11B. DEPARTMENT OF REVENUE.
ARTICLE 1. DEPARTMENT OF REVENUE.
§11B-1-2. Location of offices; agencies, boards, commissions,
divisions and offices comprising the department of
finance and revenue.
(a)
The cabinet secretary of the department shall maintain his
or her principal office at the seat of government and shall keep
there the secretary's public records, books and papers. Agencies,
boards, commissions, divisions and other offices of the department
may maintain offices at the seat of government or elsewhere
depending on factors not limited to available capitol space, the
mission of the agency, board, commission, division or office, and
convenience to the public.
(a) (b) There shall be in the Department of Revenue the
following agencies, boards, commissions, divisions and offices,
including all of the allied, advisory, affiliated or related
entities which are incorporated in and shall be administered as
part of the Department of Revenue:
(1) The Alcohol Beverage Control Commissioner provided for in
article sixteen, chapter eleven of this code and article one,
chapter sixty of this code;
(2) (1) The Division of Banking provided
for in article two,
chapter thirty-one-a of this code;
(3) (2) The board of banking and financial institutions
provided
for in article three, chapter thirty-one-a of this code;
(4) (3) The state budget office
heretofore known as the budget
section of the Finance Division, Department of Administration,
previously provided for in article two, chapter five-a of this code
and now provided
for in article two of this chapter;
(5) (4) The agency of Insurance Commissioner provided
for in
article two, chapter thirty-three of this code;
(6) (5) The lending and credit rate board provided
for in
chapter forty-seven-a of this code;
(7) (6) The Lottery Commission and the position of lottery
director The Gaming and Alcohol Control Commission and the Director
of the State Gaming and Alcohol Control Agency provided
for in
article twenty-two, chapter twenty-nine of this code;
(8) (7) The Municipal Bond Commission provided
for in article
three, chapter thirteen of this code;
(9) (8) The office of tax appeals provided
for in article
ten-a, chapter eleven of this code;
and
(10) The state athletic commission provided for in article
five-a, chapter twenty-nine of this code;
(11) (9) The Tax Division provided
for in article one, chapter
eleven of this code.
and
(12) The West Virginia Racing Commission provided for in
article twenty-three, chapter nineteen of this code
(c) The department shall also include any other agency, board,
commission, division, office or unit subsequently incorporated in
the department by the Legislature.
CHAPTER 19. AGRICULTURE.
ARTICLE 23. HORSE AND DOG RACING.
§19-23-1. License required for horse and dog racing and pari-
mutual wagering in connection therewith; exception.
(a) No
racing association
shall may hold or conduct any horse
or dog race meeting at which horse or dog racing is permitted for
any purse unless
such the racing association possesses a license
therefor from the
West Virginia Racing Commission State Gaming and
Alcohol Control Commission and complies with the provisions of this
article and all
reasonable rules
and regulations of
such racing the
commission.
(b)
Notwithstanding the provisions of subsection (a) of this
section, The provisions of this article
shall may not be construed
to prevent
in any way the use
without a license of any grounds, enclosure or racetrack owned and controlled by any
racing
association for any local, county or state fair, horse show or
agriculture or livestock exposition, even though horse or dog
racing
be there is conducted, if the pari-mutuel system of wagering
upon the results of
such horse or dog racing the race is neither
permitted nor conducted with the knowledge or acquiescence of the
racing association.
conducting such horse or dog racing
§19-23-2. Permits required for horse and dog racetrack positions;
residency requirements for employees of licensees.
(a)
No person not required to be licensed under the provisions
of section one of this article shall participate in or have
anything to do with All persons with positions related to horse or
dog racing for a purse or a horse or dog race meeting at any
licensee's horse or dog racetrack, place or enclosure, where the
pari-mutuel system of wagering upon the results of such horse or
dog racing is permitted or conducted
shall have a permit.
(b) These persons include but are not limited to as a horse
owner, dog owner, jockey, apprentice jockey, exercise boy, kennel
keeper, trainer, groom, plater, stable foreman, valet,
veterinarian, agent, clerk of the scales, starter, assistant
starter, timer, judge or pari-mutuel employee, or in any other
capacity specified in
reasonable the rules
and regulations of the
Racing Commission.
unless such person possesses a permit therefor from the West Virginia Racing Commission and complies with the
provisions of this article and all reasonable rules and regulations
of such Racing Commission
(b) (c) At least eighty percent of the
individuals persons
employed by a licensee at any horse or dog race meeting must be
citizens and residents of this state
and must have been such
citizens and residents for at least one year. For the purpose of
this subsection, "citizens and residents of this state"
shall be
construed to mean means individuals who maintain a permanent place
of residence in this state.
and have been bona fide residents and
citizens of this state for a period of one year immediately prior
to the filing of their applications for employment The provisions
of this subsection
shall do not apply to
individuals persons
engaged in the construction of a horse or dog racetrack or in the
equipping of same, nor to racing officials designated by the Racing
Commission or racing officials designated by the executive
officials of a licensee.
§19-23-3. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(24) (a) "Accredited thoroughbred horse" means a thoroughbred
horse that is:
(a) (1) Foaled in West Virginia;
(b) (2) Sired by an accredited West Virginia sire; or
(c) (3) As a yearling, finished twelve consecutive months of
verifiable residence in the state, except for thirty days' grace:
(A) For the horse to be shipped to and from horse sales where
the horse is officially entered in the sales catalogue of a
recognized thoroughbred sales company; or
(B) For obtaining veterinary services, documented by
veterinary reports;
(25) (b) "Accredited West Virginia sire"
is means a sire that
is permanently domiciled in West Virginia, stands a full season in
West Virginia and is registered with West Virginia Thoroughbred
Breeders Association;
(8) (c) "Applicant" means any racing association making
application for a license,
under the provisions of this article or
any person making application for a permit,
under the provisions of
this article, or any person making application for a construction
permit under the provisions of this article;
as the case may be
(26) (d) "Breeder of an accredited West Virginia horse"
is
means the owner of the foal at the time it was born in West
Virginia;
(23) (e) "Code" means the Code of West Virginia, 1931, as
heretofore and hereinafter amended;
(11) (f) "Construction permit" means the construction permit required by the provisions of section eighteen of this article;
(14) (g) "Construction permit holder" means any person holding
a construction permit required by the provisions of section
eighteen of this article and issued under the provisions of this
article;
(h) "Director" means the Director of the State Gaming and
Alcohol Control Agency created by section six, article twenty-two,
chapter twenty-nine of this code.
(5) (I) "Dog racing" means any type of dog racing, including,
but not limited to, greyhound racing;
(31) (j) "Fund" means the West Virginia Thoroughbred
Development Fund established in section thirteen-b of this article;
(3) (k) "Harness racing" means horse racing in which the
horses participating
therein are harnessed to a sulky, carriage or
other vehicle and
shall may not include any form of horse racing in
which the horses are mounted by jockeys;
(15) (l) "Hold or conduct" includes "assist, aid or abet in
holding or conducting";
(4) "Horse race meeting" means the whole period of time for
which a license is required by the provisions of section one of
this article;
(1) (m) "Horse racing" means any type of horse racing,
including, but not limited to, thoroughbred racing and harness racing;
(21) (n) "Legitimate breakage"
is means the percentage left
over in the division of a pool;
(9) (o) "License" means the license required by the provisions
of section one of this article;
(12) (p) "Licensee" means any racing association holding a
license required by the provisions of section one of this article
and issued under the provisions of this article;
(28) (q) The "owner of an accredited West Virginia sire"
is
means the owner of record at the time the offspring is conceived;
(29) (r) The "owner of an accredited West Virginia horse"
means the owner at the time the horse earned designated purses to
qualify for restricted purse supplements provided in section
thirteen-b of this article;
(18) (s) "Pari-mutuel" means a mutuel or collective pool that
can be divided among those who have contributed their wagers to one
central agency, the odds to be
reckoned calculated in accordance to
the collective amounts wagered upon each contestant running in a
horse or dog race upon which the pool is made, but the total to be
divided among the first three contestants on the basis of the
number of wagers on these;
(19) (t) "Pari-mutuel clerk" means any employee of a licensed
racing association who is responsible for the collection of wagers, the distribution of moneys for winning pari-mutuel tickets,
verification of the validity of pari-mutuel tickets and accounting
for pari-mutuel funds;
(10) (u) "Permit" means the permit required by the provisions
of section two of this article;
(13) (v) "Permit holder" means any person holding a permit
required by the provisions of section two of this article and
issued under the provisions of this article;
(20) (w) "Pool" means a combination of interests in a joint
wagering enterprise or a stake in such enterprise;
(6) (x) "Purse" means any purse, stake or award for which a
horse or dog race is run;
(7) (y) "Racing association" or "person" means any individual,
partnership, firm, association, corporation or other entity or
organization of whatever character or description;
(16) (z) "Racing commission,"
"Gaming and Alcohol Control
Commission," or "commission" means the
West Virginia Racing State
Gaming and Alcohol Control Commission established in section four,
article twenty-two, chapter twenty-nine of this code;
(27) (aa) "Raiser of an accredited West Virginia horse"
is
means the owner of the yearling at the time it finished twelve
consecutive months of verifiable residence in the state. During
the period, the raiser will be granted one month of grace for his or her horse to be shipped to and from thoroughbred sales where the
horse is officially entered in the sales catalogue of a recognized
thoroughbred sales company. In the event the yearling was born in
another state and transported to this state, this definition does
not apply after December 31, 2007, to any pari-mutuel racing
facility located in Jefferson County; nor shall it apply after
December 31, 2012, and thereafter to any pari-mutuel racing
facility located in Hancock County. Prior to the horse being
shipped out of the state for sales, the raiser must notify the
Racing Commission of his or her intentions;
(bb) "Race meeting" means the whole period of time for which
a license is required by the provisions of section one of this
article;
(30) (cc) "Registered greyhound owner" means an owner of a
greyhound that is registered with the National Greyhound
Association;
(32) (dd) "Regular purse" means both regular purses and stakes
purses.
(ee) "State Gaming and Alcohol Control Agency" means the
agency established in article twenty-two, chapter twenty-nine of
this code;
(17) (ff) "Stewards" means the steward or stewards
representing the Racing Commission, the steward or stewards representing a licensee and any other steward or stewards, whose
duty it is to supervise any horse or dog race meeting;
all as may
be provided by reasonable rules of the Racing Commission, and the
reasonable rules shall specify the number of stewards to be
appointed, the method and manner of their appointment and their
powers, authority and duties
(22) (gg) "To the dime" means that wagers shall be figured and
paid to the dime; and
(2) (hh) "Thoroughbred racing" means flat or running type
horse racing in which each horse
participating therein is a
thoroughbred and is mounted by a jockey.
§19-23-4. West Virginia Racing Commission abolished; functions
transferred to the State Gaming and Alcohol Control
Commission; annual report; transfer of funds.
(a) The "West Virginia Racing Commission,"
is continued in
existence as a public corporation and, as such, may contract and be
contracted with, plead and be impleaded, sue and be sued and have
and use a common seal is hereby abolished effective July 1, 2009.
On and after that date, the State Gaming and Alcohol Control
Commission created by section four, article twenty-two, chapter
twenty-nine of this code shall on and after that date have sole
responsibility for the administration of this article, except for
those responsibilities delegated to or reserved for the Director of the State Gaming and Alcohol Control Agency created by section six,
article twenty-two, chapter twenty-nine of this code.
(b) The Racing Commission shall consist of three members, not
more than two of whom shall belong to the same political party, to
be appointed by the Governor by and with the advice and consent of
the Senate. The term of office for the members of the Racing
Commission is four years, and until their successors have been
appointed and have qualified, and members of the Racing Commission
may serve any number of successive terms. The members of the
Racing Commission in office on the effective date of the amendment
and reenactment of this section in two thousand one shall, unless
removed by the Governor after the effective date of this article,
continue to serve until their terms expire and until their
successors have been appointed and have qualified. Any vacancy in
the office of a member of the Racing Commission shall be filled by
appointment by the Governor for the unexpired term of the member
whose office shall be vacant. No person is eligible for
appointment to or to serve upon the Racing Commission:
(1) Unless he or she is an actual and bona fide resident of
this state, shall have resided in this state for a period of at
least five years next preceding his or her appointment, shall be a
qualified voter of this state and be not less than twenty-five
years of age;
(2) Who directly or indirectly, or in any capacity, owns or
has any interest, in any manner whatever, in any racetrack where
horse or dog race meetings may be held, including, but not limited
to, an interest as owner, lessor, lessee, stockholder or employee;
(3) While serving as a member of the Legislature or as an
elective officer of this state; or
(4) Who has been or shall be convicted of an offense which,
under the law of this state or any other state or of the United
States of America, constitutes a felony, or is a violation of
article four, chapter sixty-one of this code.
(c) Each member of the Racing Commission shall be reimbursed
for all reasonable and necessary expenses actually incurred in the
performance of his or her duties as a member of the Racing
Commission.
(d) The Racing Commission shall have its principal office at
the seat of government, and shall meet annually at its principal
office in the month of January, and at any other times and places
designated by its chairman. At the annual meeting the Racing
Commission shall elect from its membership a chairman and any other
officers that are desired. Other meetings of the Racing Commission
may be called by the chairman on such notice to the other members
prescribed by the Racing Commission.
(e) A majority of the members of the Racing Commission
constitute a quorum for the transaction of its business or the
exercise of any of its powers and authority. No person not a bona
fide member of the Racing Commission shall vote upon or participate
in the deliberations of the Racing Commission on any matter which
may come before it. All Racing Commission records, except as
otherwise provided by law, shall be open to public inspection
during regular office hours.
(f) (b) As soon as possible after the close of each calendar
year, the Racing Commission shall submit to the Governor a report
of the
racing transactions of the Racing Commission during the
preceding calendar year.
At the discretion of the commission, this
report may be submitted in an omnibus report that includes other
divisions and aspects of the State Gaming and Alcohol Control
Agency.
(c) All special accounts and funds in this article that were
previously created and maintained in a banking institution of the
Racing Commission's choice shall be required to be reestablished in
the State Treasury by July 1, 2010.
(d) All special accounts and funds in this article that
contain the phrase "Racing Commission" in their names are hereby
deemed to be special accounts and funds administered by the State
Gaming and Alcohol Control Commission, and when easily achievable, the names should be changed to so reflect.
§19-23-5. Racing secretary and other personnel offices abolished
July 1, 2009; administrative functions and personnel
placed under the supervision of the Director of the
State Gaming and Alcohol Control Agency.
(a)
The Racing Commission shall appoint a racing secretary to
represent the Racing Commission and such racing secretary shall
possess such powers and authority and perform such duties as the
Racing Commission may direct or prescribe. The racing secretary
shall preserve at the Racing Commission's principal office all
books, maps, records, documents and other papers of the Racing
Commission. The racing secretary shall, in addition to all other
duties imposed upon him by the Racing Commission, serve in a
liaison capacity between licensees and the Racing Commission. The
Racing Commission may also employ, direct and define the duties of
an assistant racing secretary and such stenographers, clerks and
other office personnel as it may deem necessary to carry out the
duties imposed upon it under the provisions of this article.
The
statutory offices of racing secretary, assistant racing secretary,
chief clerk, director of security, director of audits and chief
chemist are abolished effective July 1, 2009.
On and after that
date, any reference in this code to the racing secretary shall be
construed as meaning the Director of the State Gaming and Alcohol Control Agency created by section six, article twenty-two, chapter
twenty-nine of this code.
(b) In addition to the employees referred to above, The Racing
Commission director shall employ, direct and define the duties of
a chief clerk, director of security, director of audit, chief
chemist, stewards to represent the Racing Commission, supervisors
of the pari-mutuel wagering, conducted under the provisions of this
article, veterinarians, inspectors, accountants, guards and all
other employees deemed by the Racing Commission and the director to
be essential in connection with any horse or dog race. meeting
The director of audit shall be a certified public accountant or
experienced public accountant
(c) No individual shall knowingly be employed or be continued
in employment by the Racing Commission in any capacity whatever:
(1) Who directly or indirectly, or in any capacity, owns or
has any interest, in any manner whatever, in any racetrack where
horse or dog race meetings may be held, including, but not limited
to, an interest as owner, lessor, lessee, stockholder or employee;
(2) Who at the time is or has been within one year prior
thereto a member of the Legislature or an elective officer of this
state, unless he is experienced and qualified as a racing official;
or
(3) Who has been or shall be convicted of an offense which,
under the law of this state or any other state or of the United
States of America, constitutes a felony, or is a violation of
article four, chapter sixty-one of this code. Any steward employed
by the Racing Commission or by a licensee shall be a person of
integrity, and experienced and qualified for such position by the
generally accepted practices and customs of horse or dog racing in
the United States.
(d) (c) The racing secretary and all other employees of the
Racing Commission Persons employed under this article shall serve
at the will and pleasure of the Racing Commission director. The
racing secretary and the other employees referred to in this
section as employees of the Racing Commission Such persons shall
receive such compensation as may be fixed by the Racing Commission
director within the limit of available funds, and shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of their official duties.
(e) All compensation and reimbursement for expenses of the
members of the Racing Commission, the racing secretary and all
other employees of the Racing Commission shall be paid from the
funds in the hands of the state Treasurer collected under the
provisions of this article and shall be itemized in the budget in
the same manner as all other departments of state government, but no reimbursement for expenses incurred shall be paid unless an
itemized account thereof, under oath, be first filed with the state
Auditor.
(d) Effective July 1, 2009, all persons employed by the Racing
Commission are transferred to the State Gaming and Alcohol Control
Agency as created by section seven, article twenty-two, chapter
twenty-nine.
§19-23-11. Revenues from horse racing and dog racing to be paid
into a special account to fund commission expenses.
All revenues collected pursuant to the provisions of this
article as license taxes or pari-mutuel pools taxes on horse racing
and dog racing
and money retained by the commission as reasonable
security for the costs of a hearing pursuant to subsection-c,
section sixteen of this article
shall be paid by the Racing
Commission to the State Treasurer who shall deposit the revenues in
a the nonappropriated special account to be denominated by him or
her created in section eight-a, article twenty-two, chapter
twenty-nine of this code. The revenues in the special account
shall first be available to the commission to pay salaries and
other budgeted expenses for the commission, not to exceed the
amounts appropriated for such purposes in the budget bill for each
fiscal year State Gaming and Alcohol Control Agency. Revenues in
excess of the budgeted expenses of the commission On the last day of each fiscal year, unencumbered and undesignated funds from the
deposits required by this section that remain in the
nonappropriated special account in the excess of $250,000 shall be
accumulated and transferred to the General Revenue Fund. The
Racing Commission shall remit all collected racing revenues to the
State Treasurer at least one time during each thirty-day period of
each racing season, and a final remittance as to any particular
horse race or dog race meeting shall be made within thirty days
from and after the close of each horse race or dog race meeting.
§19-23-16. Entry of order suspending or revoking license or
permit; service of order; contents; hearing;
decision to be in writing.
(a) Whenever the Racing Commission shall deny director denies
an application for a license or a permit or shall suspend or
revoke, suspends or revokes a license or a permit, it he or she
shall make and enter an order to that effect and serve a copy
thereof on the applicant, licensee or permit holder, as the case
may be, in any manner in which a summons may be served in a civil
action or by certified mail, return receipt requested. Such order
shall state the grounds for the action taken, and, in the case of
an order of suspension or revocation, shall state the effective
date of such suspension or revocation.
(b) Whenever a majority of the stewards at any horse or dog race meeting shall suspend or revoke a permit, such suspension or
revocation shall be effective immediately. The stewards shall, as
soon as thereafter practicable, make and enter an order to that
effect and serve a copy thereof on the permit holder, in any manner
in which a summons may be served in a civil action or by certified
mail, return receipt requested. Such order shall state the grounds
for the action taken.
(c) Any person adversely affected by any such order shall be
entitled to a hearing thereon if, within twenty ten days after
service of a copy thereof if served in any manner in which a
summons may be served as aforesaid or within twenty ten days after
receipt of a copy thereof if served by certified mail as aforesaid,
such person files with the Racing Commission a written demand for
such hearing. A demand for hearing shall operate automatically to
stay or suspend the execution of any order suspending or revoking
a license, but a demand for hearing shall not operate to stay or
suspend the execution of any order suspending or revoking a permit.
Upon the request of the person demanding the hearing, the
commission may stay or suspend the execution of any order
suspending or revoking a license or a permit. The Racing
Commission may require the person demanding such hearing to give
reasonable security for the costs thereof and if such person does
not substantially prevail at such hearing such costs shall be assessed against such person and may be collected by an action at
law or other proper remedy.
(d) Upon receipt of a written demand for such hearing, the
Racing Commission shall set a time and place therefor not less than
ten and not more than thirty days thereafter. Any scheduled
hearing may be continued by the Racing Commission upon its own
motion or for good cause shown by the person demanding the hearing.
(e) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with and following
such hearing, with like effect as if the provisions of said article
five were set forth in this subsection.
(f) Any such hearing shall be conducted by a quorum of the
Racing Commission or by a hearing examiner appointed by the
commission. For the purpose of conducting any such hearing, the
director, any member of the Racing Commission or the hearing
examiner shall have the power and authority to issue subpoenas and
subpoenas duces tecum as provided for in section six of this
article. Any such subpoenas and subpoenas duces tecum shall be
issued and served within the time, for the fees and shall be
enforced, as specified in section one, article five of said chapter
twenty-nine-a, and all of the said section one provisions dealing
with subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing
hereunder.
(g) At any such hearing the person who demanded the same may
represent such person's own interests or be represented by an
attorney-at-law admitted to practice before any circuit court of
this state. Upon request by the Racing Commission, it shall be
represented at any such hearing by the Attorney General or his
assistants without additional compensation. The Racing Commission,
with the written approval of the Attorney General, may employ
special counsel to represent the Racing Commission at any such
hearing.
(h) After any such hearing and consideration of all of the
testimony, evidence and record in the case, or after receiving the
proposed findings of fact and conclusions of law from a hearing
examiner appointed by the commission, the Racing Commission shall
render its decision in writing. The written decision of the Racing
Commission shall be accompanied by findings of fact and conclusions
of law as specified in section three, article five, chapter
twenty-nine-a of this code, and a copy of such decision and
accompanying findings and conclusions shall be served by certified
mail, return receipt requested, upon the person demanding such
hearing, and his or her attorney of record, if any.
(I) The decision of the Racing Commission shall be final unless reversed, vacated or modified upon judicial review thereof
in accordance with the provisions of section seventeen of this
article.
§19-23-17. Judicial review; appeal to Supreme Court of Appeals;
legal representation for Racing Commission.
Any person adversely affected by a decision of the Racing
Commission rendered after a hearing held in accordance with the
provisions of section sixteen of this article shall be entitled to
judicial review thereof. All of the pertinent provisions of
section four, article five, chapter twenty-nine-a of this code
shall apply to and govern such judicial review with like effect as
if the provisions of said section four were set forth in this
section, except that execution of a decision of suspension or
revocation of a license shall be stayed or suspended pending a
final judicial determination, and except that execution of a
decision of suspension or revocation of a permit shall not be
stayed or suspended pending a final judicial determination.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the Supreme Court of
Appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
Legal counsel and services for the Racing Commission in all
appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his
assistants. and in any circuit court by the prosecuting attorney
of the county as well, all without additional compensation The
Racing Commission, with the written approval of the Attorney
General, may employ special counsel to represent the Racing
Commission at any such appeal proceedings.
§19-23-28. Effect of article on existing rules
, licenses and
permits.
All rules and regulations promulgated by the Racing Commission
and in effect on the effective date of this article section shall
remain in full force and effect until superseded, or except as
amended or repealed, in accordance with the provisions of this
article.
Any license or permit issued by the Racing Commission under
the former provisions of article twenty-three of this chapter,
which has not expired and which has not been suspended or revoked
prior to the effective date of this article section, shall be
governed by the provisions of this article and shall remain valid
until the expiration thereof, unless such license or permit is
sooner suspended or revoked in accordance with the provisions of
this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 5A. STATE ATHLETIC COMMISSION.
§29-5A-1. Commission abolished.
The State boxing commission, heretofore created, is hereby
continued and renamed the state Athletic Commission The commission
shall consist of five persons appointed by the Governor, by and
with the consent of the Senate, no more than three of whom shall
belong to the same political party and no two of whom shall be
residents of the same county at the same time. The members shall
serve without pay. The present members and terms of the members of
the state boxing commission shall continue as the state athletic
commission. At the expiration of the term of each member, his or
her successor shall be appointed by the Governor for a term of four
years. In the event of a vacancy in said board, said vacancy shall
likewise be filled by appointment by the Governor and the Governor
shall likewise have the power to remove any commissioner at his or
her pleasure. Any three members of the commission shall constitute
a quorum for the exercise of the power or authority conferred upon
it. The members of the commission shall at the first meeting after
their appointment elect one of their number chairman of the
commission, and another of their number secretary of the
commission, shall adopt a seal for the commission, and shall make
such rules for the administration of their office, not inconsistent
herewith, as they may deem expedient; and they may hereafter amend
or abrogate such rules. The concurrence of at least three commissioners shall be necessary to render a choice or decision of
the commission. The State Athletic Commission is abolished
effective July 1, 2009. On and after that date, the State Gaming
and Alcohol Control Commission created by section four, article
twenty-two, chapter twenty-nine of this code shall have sole
responsibility for the administration of this article, except for
those responsibilities delegated to and reserved for the Director
of the State Gaming and Alcohol Control Agency created under
section six, article twenty-two, chapter twenty-nine of this code.
§29-5A-3. Commission to have sole control of boxing, etc.,
matches; licenses; municipality not to tax boxing,
sparring or exhibition clubs.
(a) The commission has
sole direction, management and control
of the jurisdiction over all amateur, professional and
semiprofessional boxing, sparring matches and exhibitions, or any
form, thereof, to be conducted
held or given within the state by
any club, individual, corporation or association.
As used in this article, the term "boxing" includes any
fighting event that includes or permits the striking of an opponent
with a closed fist, even if wrestling moves, elements of martial
arts, or striking an opponent with the feet are also permitted.
(b) No boxing, sparring or exhibition may be conducted
held or
given within the state except pursuant to the commission's authority and held in accordance with this article. The commission
may
in its discretion, issue and
at its pleasure, revoke the
license to conduct, hold or give boxing or sparring matches or
exhibitions to any club, corporation, association or individual.
Every license is subject to rules the commission may prescribe.
Every application for a license shall be on a blank form provided
by the commission.
(c) No promoter's license may be granted to any club,
corporation, association or individual, unless the signer of the
application is a bona fide resident of the State of West Virginia.
Upon application of the promoter's license, the promoter shall pay
a state license fee of $125 for one year. The fee shall be in the
form of a certified check or money order and shall be
issued to the
treasurer of the State of West Virginia paid to the order of the
commission to be deposited in
the General Fund a nonappropriated
special account established in the State Treasury by section
eight-a, article twenty-two, chapter twenty-nine of this code. The
fees deposited in the nonappropriated special account shall be used
by the State Gaming and Alcohol Control Agency to pay salaries and
other expenditures. On the last day of each fiscal year,
unencumbered and undesignated funds from the deposits of racing
fees imposed by this article that remain in the nonappropriated
special account in the excess of $250,000 shall be transferred to the General Revenue Fund. If the license is not granted, the
treasurer director shall refund the full amount.
(d) Nonprofit chartered and charitable organizations are
exempt from this license fee for all amateur events. No municipal
corporation may impose any license tax on boxing, sparring or
exhibition clubs, notwithstanding the provisions of any section of
the code respecting municipal taxes and licenses. The granting of
a license to a club by the commission, or the holding of a license
by a club, individual, corporation or association, does not prevent
the commission from canceling or revoking the license to conduct an
event, as provided in this section.
(b) (e) In exercising its jurisdiction over professional,
semiprofessional and amateur boxing, sparring matches and
exhibitions, The commission shall follow the current United States
boxing authority rules and requirements to enable the proper
sanctioning of all participants, referees, judges and matches or
exhibitions conducted under the rules described in subdivision (1),
subsection (c), section twenty-four of this article and shall
cooperate fully with the boxing authority in order that the
sanctioning be extended to state boxers. For full contact boxing
events and other boxing events that follow nontraditional rules,
the commission may impose any limitations or restrictions
reasonably necessary to guarantee the safety of the participants and the fair and honest conducting of the matches or exhibitions
and may refuse to license any event that poses an unreasonable
degree of risk to the participants.
§29-5A-5. Definitions.
On or before December thirty-one of each year, the secretary
of the commission shall present to the Governor projected expenses
for the following year. Such projections shall include all
expenses of the commission and its official headquarters.
Necessary expenses incurred by the commission shall be submitted on
a standard expense form to the treasurer of the State of West
Virginia to be paid from the General Fund. Such expenses shall not
exceed five thousand five hundred dollars per year.
The following terms shall be defined as follows:
(a) "Commission," "athletic commission" or "state athletic
commission," as used in this article, shall, on July 1, 2009, mean
the State Gaming and Alcohol Control Commission created by section
four, article twenty-two of this chapter.
(b) "Boxing" means any fighting event that includes or permits
the striking of an opponent with a closed fist, even if wrestling
moves, elements of martial arts, or striking an opponent with the
feet are also permitted.
§29-5A-14. Suspension, revocation, etc., of license.
The commission
shall have the additional authority and power to may suspend, revoke or place on probation
the license of any
licensee,
licensed under this chapter who in the discretion of the
commission:
(a) Is guilty of failure to obey any lawful order of the
commission, the secretary or any inspector;
thereof
(b) Is guilty of gross immorality;
(c) Is unfit or incompetent by reason of negligence;
(d) Is guilty of violating any provision of this
chapter
article or rules
and regulations of the commission;
(e) Has committed fraud or deceit in securing a license for
himself or another;
(f) Has been convicted of a felony or misdemeanor involving
moral turpitude in any jurisdiction within one year preceding the
suspension or revocation and such conviction not previously
reported to the commission by said licensee;
(g) Is an habitual drunkard or addicted to the use of
narcotics;
(h) Is or has become mentally incompetent;
(I) Is or has been guilty of unprofessional or unethical
conduct, or such conduct as to require a suspension or revocation
of license in the interest of the public;
(j) Has failed to furnish the proper party a copy of any
contract or statement required by this chapter or the rules
and regulations promulgated
hereunder pursuant to this section, or has
breached such a contract;
(k) Has loaned or permitted another person to use his
or her
license, or has borrowed or used the license of another;
(l) Has failed to maintain in force the bond required by this
chapter article;
(m) Has by act or omission conducted himself
or herself in a
manner which would tend to be detrimental to the best interests of
boxing generally, or to the public interest and general welfare;
(n) Has been disciplined in any manner by the
boxing Gaming
and Alcohol Control Commission or similar
agency or body of any
jurisdiction;
(o) Has failed to pay a fine or forfeiture imposed by this
chapter;
(p) Has,
in any jurisdiction, either within or without this
state, by any act, threat, statement or otherwise, restrained,
hindered, interfered with or prevented another promoter, club,
association or booking agent, or has attempted,
either within or
without this state, in any such manner to restrain, hinder,
interfere with or prevent another promoter, club, association or
booking agent from presenting any boxing match or exhibition;
within or without the State of West Virginia or
(q) Has, either within or without this state, engaged, directly or indirectly, in restraints or monopolies or taken any
action tending to create or establish restraints or monopolies or
conspired with others to restrain any person or persons from
participating or competing in any boxing match or exhibition for
any promoter, club, association or booking agent.
§29-5A-24. Rules
and regulations governing contestants. and
matches
(a) The commission shall promulgate its rules in compliance
with the provisions of article three of chapter twenty-nine-a of
this code.
(b) The commission shall promulgate such rules as it
determines to be necessary to regulate professional and
semiprofessional boxers, and professional and semiprofessional
boxing matches and exhibitions. For full contact boxing and other
boxing events that follow nontraditional rules, rules guaranteeing
the safety of the participants and the fair and honest conducting
of the matches or exhibitions are authorized.
(c) The commission shall promulgate separate rules for amateur
boxers and amateur boxing, sparring matches and exhibitions as
follows:
(1) Rules which comply with the requirements of the rules of
the current United States Amateur Boxing Authority to the extent
that any boxer complying with them will be eligible to participate in any state, national or international boxing match sanctioned by
the current United States Amateur Boxing Authority or the
International Amateur Boxing Association.
(2) Rules which may differ from the rules of the current
United States Amateur Boxing Authority but which adequately
guarantee the safety of the participants and the fair and honest
conducting of the matches or exhibitions. As a part of these
rules, the commission shall include a requirement that all boxers
participating in matches or exhibitions conducted under these rules
be informed prior to such participation that such participation
will disqualify them from participating in state, national or
international matches and exhibitions sanctioned by the current
United States Amateur Boxing Authority or the International Amateur
Boxing Association.
(d) All rules promulgated by the State Athletic Commission and
in effect July 1, 2009, shall remain in full force and effect until
suspended or except as amended or repealed, in accordance with the
provisions of this article.
ARTICLE 22. STATE GAMING ACT.
§29-22-1. Short title.
This article shall be known and may be cited as the "State
Lottery Gaming Act."
§29-22-2. Legislative purpose, continuation of judicial rulings.
(a) The Legislature finds and declares that the purpose of
This article is to establish and implement a state-operated lottery
under the supervision of the state Lottery Commission and the
director of the state lottery office who shall be appointed by the
Governor and hold broad authority to administer the system in a
manner which will provide the state with a highly efficient
operation The purpose of this article is to establish that the
State Gaming and Alcohol Control Commission and the Director of the
State Gaming and Alcohol Control Agency are responsible for
administering and regulating nonintoxicating beer under the
provisions of article sixteen, chapter eleven of this code, the
sport of boxing under the provisions of article five-a, chapter
twenty-nine of this code, alcohol control under the provisions of
chapter sixty of this code, and all legal gaming activities,
including, but not limited to, horse and dog racing activities
under the provisions of article twenty-three, chapter nineteen of
this code, state-owned lotteries under the provisions of this
article; racetrack video lottery under the provisions of article
twenty-two-a of this chapter, limited video lottery games under the
provisions of article twenty-two-b of this chapter, lottery
racetrack table games under the provisions of article twenty-two-c
of this chapter, one limited gaming facility under the provisions
of article twenty-five, chapter twenty-nine of this chapter and charitable gaming under the provisions of articles twenty,
twenty-one and twenty-three, chapter forty-seven of this code.
(b) Unless otherwise superseded in this code, judicial rulings
made in regards to article sixteen, chapter eleven, article
twenty-three, chapter nineteen, article five-a, chapter
twenty-nine, article twenty-two, chapter twenty-nine, article
twenty-two-a, chapter twenty-nine, article twenty-two-b, chapter
twenty-nine, article twenty-two-c, chapter twenty-nine, article
twenty-five, chapter twenty-nine, articles twenty-twenty-one and
twenty three, chapter forty-seven, and chapter sixty of this code
shall be held as valid precedent for the State Gaming and Alcohol
Control Commission and the State Gaming and Alcohol Control Agency.
§29-22-3. Definitions.
As used in this article, and unless the context requires
otherwise:
(a)
"Agency" means the State Gaming and Alcohol Control Agency
created in section six of this article.
(b) "Director" means the individual appointed by the Governor
to provide management and administration necessary to direct the
state lottery office State Gaming and Alcohol Control Agency.
(c) "Lottery" means the public gaming systems or games
established and operated by the
state lottery office State Gaming
and Alcohol Control Agency.
(d) "Lottery tickets" or "tickets" means tickets or other
tangible evidence of participation used in lottery games or gaming
systems.
(e) "State
lottery Gaming and Alcohol Control Commission" or
"commission" means the State
lottery Gaming and Alcohol Control
Commission created by this article.
§29-22-4. State Gaming and Alcohol Control Commission created;
composition; qualifications; appointment; terms of
office; chairman's removal; vacancies; compensation
and expenses; quorum, oath and bond.
(a)
There is hereby created a The State Lottery Commission
is
abolished. Effective July 1, 2009, the State Gaming and Alcohol
Control Commission is created and which shall consist of
seven nine
members, all residents and citizens of the state
and none of whom
have a vested interest in anything regulated by the commission:
(1) One
member who shall be a lawyer;
(2) One
member who shall be a certified public accountant;
(3) One
member who shall be a computer expert;
(4) One
member who shall have not less than five years
experience in law enforcement;
and
(5) One member who shall have not less than five years
experience in agriculture or veterinary medicine;
(6) One
member who shall be qualified by experience and training in the field of marketing;
and
(7) The two Three remaining members
shall be representative
representing of the public at large.
(b) The Governor shall appoint the commission members on July
1, 2009, and stagger the terms.
(c) The commission shall carry on a continuous study and
investigation of
the lottery gaming, horse and dog racing, boxing
activities, nonintoxicating beer and alcohol control throughout the
state and advise and assist the director.
of the state lottery
(d) The commission members shall be appointed by the Governor,
by and with the advice and consent of the Senate.
no later than
the first day of July, one thousand nine hundred eighty-five
The terms of members first appointed expire as designated by
the Governor at the time of appointment:
One Two at the end of one
year; two at the end of two years;
one two at the end of three
years; two at the end of four years; and one at the end of five
years.
(e) Upon the effective date of this section, as vacancies
occur, appointments to fill vacancies shall be made so that at
least two Three members
are shall be appointed from each
congressional district.
existing as of the first day of January,
one thousand nine hundred ninety-three
(f) No more than
four five members of
such the commission shall belong to the same political party.
(g) Members serve overlapping terms of five years and are
eligible for successive appointments to the commission. After the
initial appointments by the Governor, each member shall be
appointed for a term of five years and may not serve more than
three consecutive terms. Any member who has served three
consecutive full terms may not be reappointed for at least one year
after completion of his or her third full term. A member may
continue to serve until his or her successor has been appointed and
qualified.
(h) On July 1 of each year, the commission shall select a
chairman from its membership.
(I) The Governor may remove any commission member for cause,
notwithstanding the provisions of section four, article six,
chapter six of this code. Vacancies shall be filled in the same
manner as the original appointment but only for the remainder of
the term. No person convicted of a felony or crime involving moral
turpitude shall be eligible for appointment nor appointed as a
commissioner.
(b) (j) The
board State Gaming and Alcohol Control Agency
shall pay each member the same compensation as is paid to members
of the Legislature for their interim duties as recommended by the
Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of
official duties and shall reimburse each member for actual and
necessary expenses incurred in the discharge of official duties:
Provided, That the per mile rate to be reimbursed shall be the same
rate as authorized for members of the Legislature. All such
payments shall be made from the
State Lottery Fund nonappropriated
special account created in section eight-a of this article.
(c) (k) At least one meeting per month shall be held by the
commission. Additional meetings may be held at the call of the
chairman, director or majority of the commission members.
(d) (l) A majority of the members constitutes a quorum for the
transaction of business, and all actions require a majority vote of
the members present.
(e) (m) Before entering upon the discharge of the duties as
commissioner, each commissioner shall take and subscribe to the
oath of office prescribed in section five, article IV of the
Constitution of West Virginia and shall enter into a bond in the
penal sum of $100,000 with a corporate surety authorized to engage
in business in this state, conditioned upon the faithful discharge
and performance of the duties of the office. The executed oath and
bond shall be filed in the office of the Secretary of State.
§29-22-5. Powers and Duties of the State Gaming and Alcohol
Control Commission; emergency rules.
(a) The commission shall:
have the authority to
(1) Promulgate rules in accordance with chapter twenty-nine-a
of this code;
Provided, That those rules promulgated by the
commission that are necessary to begin the lottery games selected
shall be exempted from the provisions of chapter twenty-nine-a of
this code in order that the selected games may commence as soon as
possible
(2) Establish rules for conducting lottery games, a manner of
selecting the winning tickets and manner of payment of prizes to
the holders of winning tickets;
(3) Select the type and number of public gaming systems or
games, to be played in accordance with the provisions of this
article;
(4) Contract, if deemed desirable, with the educational
broadcasting authority to provide services through its microwave
interconnection system to make available to public broadcasting
stations servicing this state, and, at no charge, for rebroadcast
to commercial broadcasting stations within this state, any public
gaming system or games drawing;
(5) Enter into interstate and international lottery agreements
with other states in foreign countries or any combination of one or
more state and one or more foreign countries;
(6) Adopt an official seal;
(7) Maintain a principal office, and, if necessary, regional
suboffices at locations properly designated or provided;
(8) Prescribe a schedule of fees and charges;
(9) Sue and be sued;
(10) Lease, rent, acquire, purchase, own, hold, construct,
equip, maintain, operate, sell, encumber and assign rights of any
property, real or personal, consistent with the objectives of the
commission as set forth in this article;
(11) Designate one of the deputy directors to serve as acting
director during the absence of the director;
(12) Hold hearings on any matter of concern to the commission
relating to the lottery,
racing, charitable gaming, boxing, or
alcohol control, subpoena witnesses, administer oaths, take
testimony, require the production of evidence and documentary
evidence and designate hearing examiners and employees to so act;
and
(13) To make and enter into all agreements and do all acts
necessary or incidental to the performance of its duties and the
exercise of its powers under this article.
(b) Departments, boards, commissions or other agencies of this
state shall provide assistance to the
state lottery office State
Gaming and Alcohol Control Agency upon the request of the director.
(c) Upon the request of the deputy director for the security and licensing division in conjunction with the director, the
Attorney General, department of public safety and all other
law-enforcement agencies shall furnish to the director and the
deputy director such information as may tend to assure the
security, honesty, fairness and integrity in the operation and
administration of the lottery as they may have in their possession,
including, but not limited to, manual or computerized information
and data. The director is to designate such employees of the
security and licensing division as may be necessary to act as
enforcement agents. Such agents are authorized to investigate
complaints made to the commission or the state lottery office
concerning possible violation of the provisions of this article and
determine whether to recommend criminal prosecution. If it is
determined that action is necessary, an agent, after approval of
the director, is to make such recommendation to the prosecuting
attorney in the county wherein the violation occurred or to any
appropriate law- enforcement agency.
(c) As stated in article twenty-three, chapter nineteen of
this code, the commission and the director shall have full
jurisdiction over and shall supervise all horse race meetings, all
dog race meetings and all persons involved in the holding or
conducting of horse or dog race meetings, and, in this regard, the
commission shall have plenary power and authority to:
(1) Promulgate legislative rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code to:
(A) Regulate horse and dog meets and races; and
(B) Describe the kinds of legal combination wagers which may
be placed in connection with the pari-mutuel system of wagering;
(2) Fix the annual fee to be paid to the commission for the
registration of colors and assumed names;
(3) Approve the minimum purse to be offered during horse or
dog race meetings;
(4) Approve a minimum and a maximum number of horse races or
dog races to be held on any racing day;
(5) Prescribe a form and fix the annual fee to be paid to the
commission for any permit;
(6) Authorize stewards, starters and other racing officials to
impose reasonable fines or other sanctions upon any person
connected with or involved in any horse or dog racing or any horse
or dog race meeting; and to authorize stewards to rule off the
grounds of any horse or dog racetrack any tout, bookmaker or other
undesirable individual determined inimical to the best interests of
horse and dog racing or the pari-mutuel system of wagering in
connection therewith;
(7) Acquire, establish, maintain and operate, or to provide by
contract for the maintenance and operation of, a testing laboratory and related facilities, for the purpose of conducting saliva, urine
and other tests on the horse or dog or horses or dogs run or to be
run in any horse or dog race meeting, and to purchase all equipment
and supplies considered necessary or desirable in connection with
the acquisition, establishment, maintenance and operation of any
testing laboratory and related facilities and all such tests; and
(8) Keep accurate and complete records of its proceedings and
to certify the same as may be appropriate.
(d) The commission and the director shall have authority over
charitable bingo gaming and charitable raffle gaming as stated in
articles twenty, twenty-one and twenty-three, chapter forty-seven
of this code.
(e) The commission and the director shall authority over the
sport of boxing as stated in article five-a of this chapter.
(f) As stated in article sixteen, chapter eleven and chapter
sixty of this code, the commission and the director shall have full
jurisdiction over nonintoxicating beer and alcohol control, and, in
this regard, the commission shall have plenary power and authority
to exercise any power that may be necessary or proper for the
orderly conduct of the agency and the effective discharge of the
duties of the director.
(g) Notwithstanding any other provision of this code, the
commission may adopt by emergency rule annual licensing periods for all licenses that fall under its jurisdiction that it finds to be
necessary to increase the efficiency and accuracy of its licensing
process.
(h) The commission is authorized to promulgate emergency
rules, prior to September 1, 2009, to incorporate the revisions of
the State Gaming Act.
§29-22-6. Director; appointment; qualifications; oath and bond;
salary.
(a) There is
hereby created the position of the
lottery
Director
of the State Gaming and Alcohol Control Agency whose
duties include the management and administration of the
state
lottery office State Gaming and Alcohol Control Agency. The
director shall be qualified by training and experience to direct
the operations
and regulatory oversight of the
lottery agency, and
shall be appointed
within ninety days of the effective date of this
article, by the Governor and shall serve at the will and pleasure
of the Governor. No person
shall may be appointed as director who
has been convicted of a felony or crime involving moral turpitude.
(b)
On July 1, 2009, the person appointed to be the Director
of the State Lottery Office shall continue in office as the
Director of the State Gaming and Alcohol Control Agency until a
successor is appointed and qualified.
(b) (c) The director serves on a full-time basis and may not be engaged in any other profession or occupation.
(c) (d) The director:
(1) Shall have a good reputation, particularly as a person of
honesty and integrity, and shall favorably pass a thorough
background investigation prior to appointment;
(2)
The director shall May not hold
any other political office
in the government of the state either by election or appointment
while serving as director;
(3)
The director Shall be a citizen of the United States and
must become a resident of the state within ninety days of
appointment;
and
(4) The director Shall receive an annual salary as provided
for by the Governor; and
(5) (4) The director and his or her executive secretary are
ineligible for civil service coverage as provided in section four,
article six, chapter twenty-nine of this code.
(d) (e) Before entering upon the discharge of the duties as
director, the director shall take and subscribe to the oath of
office prescribed in section 5, article IV of the Constitution of
West Virginia and shall enter into a bond in the penal sum of
$100,000 with a corporate surety authorized to engage in business
in this state, conditioned upon the faithful discharge and
performance of the duties of the office. The executed oath and bond shall be filed in the office of the Secretary of State.
§29-22-7. Divisions of the State Gaming and Alcohol Control
Agency.
(a) There shall be established within the
state lottery office
State Gaming and Alcohol Control Agency: an security and licensing
a racetrack division, division, a personnel, data processing,
accounting and administration division and a marketing, education
and information division a lottery division, an alcohol control
division and other divisions as the commission may authorize.
(b) Each division shall be
under the supervision of supervised
by a deputy director who shall administer and coordinate the
operation of authorized activities in the respective division.
Each deputy director shall have had three years management
experience in areas pertinent to his prospective responsibilities
and an additional three years of experience in the same field.
§29-22-8. Director; powers and duties; deputy directors; hiring
of staff; civil service coverage.
(a) The director
shall have the authority to may:
(1) Appoint,
with the approval of the commission, a deputy
director for each of the divisions established in this article
and
other divisions that the commission may authorize. The deputy
directors shall serve at the will and pleasure of the director at
an annual salary established by the
director and approved by the commission. Deputy directors
shall are not
be eligible for civil
service coverage as provided in section four, article six, chapter
twenty-nine of this code;
(2) Appoint an assistant director, a managing general counsel,
a chief financial officer, a person to oversee licensing and a
person to oversee enforcement. All persons hired under this
subdivision shall serve at the will and pleasure of the director at
an annual salary established by the director and approved by the
commission. The persons hired under this subdivision are not
eligible for civil service coverage as provided in section four,
article six, chapter twenty-nine of this code;
(2) (3) The director shall Hire
pursuant to the approval of
the commission, such professional, clerical, technical and
administrative personnel as may be necessary to carry out the
provisions of this article
as well as article sixteen, chapter
eleven of this code, article twenty three, chapter nineteen of this
code, articles five-a, twenty-two-a, twenty two-b, twenty-two-c and
twenty five of this chapter, articles twenty, twenty-one and
twenty-three, chapter forty-seven of this code, and chapter sixty
of this code.
(A) No person
shall may be employed by the
lottery agency who
has been convicted of a felony or other crime involving moral
turpitude. Each person employed by the
commission agency shall execute an authorization to allow an investigation of that person's
background; and
(B) Notwithstanding any provisions of this article, article
sixteen, chapter eleven of this code, article twenty three, chapter
nineteen of this code, articles five-a, twenty-two-a, twenty two-b,
twenty-two-c and twenty five of this chapter, articles twenty,
twenty-one and twenty-three, chapter forty-seven or chapter sixty
of this code to the contrary, the director may assign all employees
of the agency based upon the needs of the agency and the
availability of funds; and
(3) (4) Designate the number and types of locations at which
lottery tickets may be sold
or authorized games may be played.
(b) Upon the request of the director, the Attorney General,
the Department of Military Affairs and Public Safety, the West
Virginia State Police and all other law-enforcement agencies shall
furnish to the director such information necessary to assure the
security, honesty, fairness and integrity in the operation and
administration of the lottery as they may have in their possession,
including, but not limited to, manual or computerized information
and data. The director shall designate such employees as may be
necessary to act as enforcement agents. Agents are authorized to
investigate complaints made to the commission or the agency
concerning possible violations of the provisions of this article and determine whether to recommend criminal prosecution. An agent,
after receiving the approval of the director, shall make a
recommendation that an action is necessary to the prosecuting
attorney in the county wherein the violation occurred or to any
appropriate law enforcement agency.
(b) (c) Effective the first day of July, one thousand nine
hundred eighty-six, All employees of the
commission agency, except
as otherwise provided
herein in this article, in section two-b,
article nine, chapter eleven of this code, in section five, article
twenty-three, chapter nineteen of this code and in articles twenty,
twenty-one and twenty-three, chapter forty-seven of this code,
shall be in the classified service under the provisions of article
six, chapter twenty-nine of this code.
(c) The director shall, pursuant to the approval of the
commission, prepare and submit the annual proposed appropriations
for the commission to the Governor.
(d) As stated in article twenty-three, chapter nineteen of
this code, the commission and the director shall have full
jurisdiction over and shall supervise all horse race meetings, all
dog race meetings and all persons involved in the holding or
conducting of horse or dog race meetings and the director shall
have the authority to:
(1) Register colors and assumed names;
(2) Regulate the minimum purse to be offered during horse or
dog race meetings;
(3) Propose for commission approval a minimum and a maximum
number of horse races or dog races to be held on any racing day;
(4) Hold up, in any disputed horse or dog race, the payment of
any purse, pending a final determination of the results;
(5) Investigate applicants and determine the eligibility of
the applicants for a license or permit or construction permit;
(6) Enter the office, horse racetrack, dog racetrack, kennel,
facilities and other places of business of any licensee to
determine whether such facilities and businesses are complying with
the provisions of this article and its rules. For this purpose,
the director and the representatives and employees of the State
Gaming and Alcohol Control Agency may visit, investigate and have
free access to any such office, horse racetrack, dog racetrack,
kennel, facilities and other places of business;
(7) Investigate alleged violations of the provisions of
article twenty-three, chapter nineteen of this code, its reasonable
rules, orders and final decisions and to take appropriate
disciplinary action against any licensee or permit holder or
construction permit holder for the violation thereof or institute
appropriate legal action for enforcement thereof or take such
disciplinary action and institute such legal action;
(8) Require at any time the removal of any racing official or
racing employee of any licensee, for the violation of any provision
of article twenty-three, chapter nineteen of this code, any rule of
the commission or for any fraudulent practice; and
(9) Provide breeders' awards, purse supplements and moneys for
capital improvements at racetracks in compliance with section
thirteen-b, article twenty-three, chapter nineteen of this code.
(e) As stated in article sixteen, chapter eleven and chapter
sixty of this code, the commission and the director shall have full
jurisdiction over nonintoxicating beer and alcohol control. The
director shall have the authority to:
(1) Sign and execute any contract or agreement authorized by
chapter sixty of this code;
(2) With the approval of the commission, the Governor and the
Board of Public Works, sell, in part or in whole, the real estate
containing 12.168 acres and a warehouse situated on River Road in
the Hub Industrial Park, Nitro, Putnam County, for a sale price of
at least the appraised fair market value and upon terms the
director determines to be in the best interest of the State of West
Virginia;
(3) Keep a complete and accurate record of all proceedings,
record and file all bonds and contracts taken or entered into and
assume responsibility for the custody and preservation of all papers and documents pertaining to the commission and the agency;
and
(4) Invoke any legal or equitable remedies for the enforcement
of the orders of the director or the provisions of chapter sixty of
this code.
(f) Notwithstanding the provisions of article three, chapter
seventeen-a of this code, upon application by the Director of the
State Gaming and Alcohol Control Agency and payment of fees, the
Commissioner of Motor Vehicles shall issue a maximum of eight Class
A license plates to be used on state owned or leased vehicles
assigned to employees of the State Gaming and Alcohol Control
Agency. This authorization is in addition to the sixteen Class A
license plates authorized under section twenty-three, article
three, chapter seventeen-a of this code.
§29-22-8a. Special account for administration of the State Gaming
and Alcohol Control Agency.
(a) There is created in the State Treasury a nonappropriated
special account to be named the "State Gaming and Alcohol Control
Agency - Administrative Account." The director shall transfer
administrative allowances from the following sources into the
account:
(1) The administrative allowance in subsection (c), section
two-b, article nine, chapter eleven of this code;
(2) The administrative allowance in section twenty-seven,
article sixteen, chapter eleven of this code;
(3) The administrative allowance in section eleven, article
twenty-three, chapter nineteen of this code;
(4) The administrative allowance in subsection (a), section
three, article five-a, chapter twenty-nine of this code;
(5) The administrative allowance in subsection (d), section
eighteen, article twenty-two, chapter twenty-nine of this code;
(6) The administrative allowance in subsection (b), section
ten, article twenty-two-a, chapter twenty-nine of this code;
(7) The administrative allowance in subdivision (1),
subsection (a), section fourteen hundred eight, article
twenty-two-b, chapter twenty-nine of this code;
(8) The administrative allowance in subsection (d), section
twenty-seven, article twenty-two-c, chapter twenty-nine of this
code;
(9) The administrative allowance in subsection (b), section
twenty-two, article twenty-five, chapter twenty-nine of this code;
and
(10) The administrative allowance in section thirty-two,
article three-a, chapter sixty of this code.
(b) Notwithstanding any requirement or limitation within any
of the sections of this code stated in subdivisions one through ten, subdivision (a) of this section, the director shall expend
money from collections from the account created by subsection (a)
of this section for the expenses of the State Gaming and Alcohol
Control Agency.
(c) At the close of each fiscal year, any unencumbered and
undesignated balance in the account shall be returned as surplus to
the various funds from which the account received transfers.
§29-22-13. Prohibited acts; conflict of interest; prohibited
gifts and gratuities.
(1) The commissioners, the director, the deputy directors and
the employees of the
lottery State Gaming and Alcohol Control
Agency may not, directly or indirectly, individually, or as a
member of a partnership or as a shareholder of a corporation have
an interest in dealing in a lottery.
(2) A member of the commission, the director, and an employee
of the
lottery State Gaming and Alcohol Control Agency or a member
of their immediate families may not ask for, offer to accept, or
receive any gift, gratuity or other thing of value from any person,
corporation, association or firm contracting or seeking to contract
with the state to supply gaming equipment or materials for use in
the operation of a lottery or from an applicant for
a any license
or permit to sell lottery tickets in the lottery granted by the
State Gaming and Alcohol Control Agency or from
a any licensee
or permittee under the State Gaming and Alcohol Control Agency's
jurisdiction.
(3) A person, corporation, association or firm contracting or
seeking to contract with the state to supply gaming equipment or
materials for use in the operation of a lottery, an applicant for
a any license
or permit to sell tickets in the lottery granted by
the State Gaming and Alcohol Control Agency or
a any licensee
or
permittee under the State Gaming and Alcohol Control Agency's
jurisdiction may not offer a member of the commission, an employee
of the
lottery State Gaming and Alcohol Control Agency, or a member
of their immediate families any gift, gratuity or other thing of
value.
(4) For the purposes of this section, "thing of value" shall
have the same meaning as it does in section three, article one,
chapter six-b of this code.
§29-22-19. Post audit of accounts and transactions of office.
Before July 1, 2001, and at least every two fiscal years
thereafter, the Legislative Auditor shall conduct a post audit of
all accounts and transactions of the
state lottery office State
Gaming and Alcohol Control Agency. The cost of the audit shall be
paid out of the State
lottery Gaming Fund moneys designated for
payment of operating expenses. The commission shall have an annual
audit performed by an independent certified public accountant, and the audits may be accepted by the Legislative Auditor in lieu of
performance of its post audit.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-3. Definitions.
As used in this article:
(a) "Applicant" means any person applying for any video
lottery license or permit.
(b) "Associated equipment" means any hardware located on a
licensed racetrack's premises which is connected to the video
lottery system for the purpose of performing communication,
validation or other functions, but not including the video lottery
terminals or the communication facilities of a regulated public
utility.
(c) "Background investigation" means a security, criminal and
credit investigation of a person, as defined in this section, who
has applied for a video lottery license or permit, or who has been
granted a video lottery license or permit.
(d) "Central computer," "central control computer" or "central
site system" means any central site computer provided to and
controlled by the commission to which video lottery terminals
communicate for purposes of information retrieval and terminal
activation and to disable programs.
(e) "Commission" or "State Lottery Commission" means the
West
Virginia Lottery Commission State Gaming and Alcohol Control
Commission created by
section four, article twenty-two of this
chapter.
(f) "Control" means the authority to direct the management and
policies of an applicant or a license or permit holder.
(g) "Costs" means the expenses incurred by the commission in
the testing and examination of video lottery terminals and the
performance of background investigations and other related
activities which are charged to and collected from applicants or
license or permit holders.
(h) "Director" means the individual appointed by the Governor
to provide management and administration necessary to direct the
state lottery office State Gaming and Alcohol Control Agency.
(I) "Disable" or "terminal disable" means the process of
executing a shutdown command from the central control computer
which causes video lottery terminals to cease functioning.
(j) "Display" means the visual presentation of video lottery
game features on a video lottery terminal in the form of video
images, actual symbols or both.
(k) "EPROM" and "erasable programmable read-only memory chips"
means the electronic storage medium on which the operation software
for all games playable on a video lottery terminal resides and which can also be in the form of CD-ROM, flash RAM or other new
technology medium that the commission may from time to time approve
for use in video lottery terminals. All electronic storage media
are considered to be the property of the State of West Virginia.
(l) "Floor attendant" means a person, employed by a licensed
racetrack, who holds a permit issued by the commission and who
corrects paper jams and bill jams in video lottery terminals and
also provides courtesy services for video lottery players.
(m) "Gross terminal income" means the total amount of cash,
vouchers or tokens inserted into the video lottery terminals
operated by a licensee, minus the total value of coins and tokens
won by a player and game credits which are cleared from the video
lottery terminals in exchange for winning redemption tickets.
(n) "License" or "video lottery license" means authorization
granted by the commission to a racetrack which is licensed by the
West Virginia Racing Commission to conduct thoroughbred or
greyhound racing meetings pursuant to article twenty-three, chapter
nineteen of this code permitting the racetrack to operate video
lottery terminals authorized by the commission.
(o) "Lottery" means the public gaming systems or games
established and operated by the
state Lottery Commission.
(p) "Lottery office" means the division of lottery within
State Gaming and Alcohol Control Agency.
(p) (q) "Manufacturer" means any person holding a permit
granted by the commission to engage in the business of designing,
building, constructing, assembling or manufacturing video lottery
terminals, the electronic computer components of the video lottery
terminals, the random number generator of the video lottery
terminals, or the cabinet in which it is housed, and whose product
is intended for sale, lease or other assignment to a licensed
racetrack in West Virginia, and who contracts directly with the
licensee for the sale, lease or other assignment to a licensed
racetrack in West Virginia.
(q) (r) "Net terminal income" means gross terminal income
minus an amount deducted by the commission to reimburse the
commission for its actual costs of administering racetrack video
lottery at the licensed racetrack. No deduction for any or all
costs and expenses of a licensee related to the operation of video
lottery games shall be deducted from gross terminal income.
(r) (s) "Noncash prize" means merchandise which a video
lottery player may be given the option to receive in lieu of cash
in exchange for a winning redemption ticket and which shall be
assigned a redemption value equal to the actual cost of the
merchandise to the licensed racetrack.
(s) (t) "Own" means any beneficial or proprietary interest in
any property or business of an applicant or licensed racetrack.
(t) (u) "Pari-mutuel racing facility," "licensed racetrack,"
"racetrack" or "track" means a facility where horse or dog race
meetings are held and the pari-mutuel system of wagering is
authorized pursuant to the provisions of article twenty-three,
chapter nineteen of this code:
Provided, That, for the purposes of
this article, "pari-mutuel racing facility," "licensed racetrack,"
"racetrack" or "track" includes only a facility which was licensed
prior to January 1, 1994, to hold horse or dog race meetings, and
which conducts not less than two hundred twenty live racing dates
for each horse or dog race meeting or such other number of live
racing dates as may be approved by the Racing Commission in
accordance with the provisions of section twelve-b, article
twenty-three, chapter nineteen of this code.
(u) (v) "Permit" means authorization granted by the commission
to a person to function as either a video lottery manufacturer,
service technician or validation manager.
(v) (w) "Person" means any natural person, corporation,
association, partnership, limited partnership, or other entity,
regardless of its form, structure or nature.
(w) (x) "Player" means a person who plays a video lottery game
on a video lottery terminal at a racetrack licensed by the
commission to conduct video lottery games.
(y) "Racing commission" and "West Virginia Racing Commission" mean the State Gaming and Alcohol Control Commission.
(x) (z) "Service technician" means a person, employed by a
licensed racetrack, who holds a permit issued by the commission and
who performs service, maintenance and repair on licensed video
lottery terminals in this state.
(y) (aa) "Video lottery game" means a commission approved,
owned and controlled electronically simulated game of chance which
is displayed on a video lottery terminal and which:
(1) Is connected to the commission's central control computer
by an on-line or dial-up communication system;
(2) Is initiated by a player's insertion of
coins, currency
cash, vouchers or tokens into a video lottery terminal, which
causes game play credits to be displayed on the video lottery
terminal and, with respect to which, each game play credit entitles
a player to choose one or more symbols or numbers or to cause the
video lottery terminal to randomly select symbols or numbers;
(3) Allows the player to win additional game play credits,
coins or tokens based upon game rules which establish the random
selection of winning combinations of symbols or numbers or both and
the number of free play credits, coins or tokens to be awarded for
each winning combination of symbols or numbers or both;
(4) Is based upon computer-generated random selection of
winning combinations based totally or predominantly on chance;
(5) In the case of a video lottery game which allows the
player an option to select replacement symbols or numbers or
additional symbols or numbers after the game is initiated and in
the course of play, either: (A) Signals the player, prior to any
optional selection by the player of randomly generated replacement
symbols or numbers, as to which symbols or numbers should be
retained by the player to present the best chance, based upon
probabilities, that the player may select a winning combination;
(B) signals the player, prior to any optional selection by the
player of randomly generated additional symbols or numbers, as to
whether such additional selection presents the best chance, based
upon probabilities, that the player may select a winning
combination; or (C) randomly generates additional or replacement
symbols and numbers for the player after automatically selecting
the symbols and numbers which should be retained to present the
best chance, based upon probabilities, for a winning combination,
so that in any event, the player is not permitted to benefit from
any personal skill, based upon a knowledge of probabilities, before
deciding which optional numbers or symbols to choose in the course
of video lottery game play;
(6) Allows a player at any time to simultaneously clear all
game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the
video lottery terminal; and
(7) Does not use the following game themes commonly associated
with casino gambling: Roulette, dice, or baccarat card games:
Provided, That games having a display with symbols which appear to
roll on drums to simulate a classic casino slot machine, game
themes of other card games and keno may be used.
(z) (bb) "Validation manager" means a person who holds a
permit issued by the commission and who performs video lottery
ticket redemption services.
(aa) (cc) "Video lottery" means a lottery which allows a game
to be played utilizing an electronic computer and an interactive
computer terminal device, equipped with a video screen and keys, a
keyboard or other equipment allowing input by an individual player,
into which the player inserts coins, currency, vouchers or tokens
as consideration in order for play to be available, and through
which terminal device the player may receive free games, coins,
tokens or credit that can be redeemed for cash, annuitized payments
over time, a noncash prize or nothing, as may be determined wholly
or predominantly by chance. "Video lottery" does not include a
lottery game which merely utilizes an electronic computer and a
video screen to operate a lottery game and communicate the results
of the game, such as the game "Travel," and which does not utilize an interactive electronic terminal device allowing input by an
individual player.
(bb) (dd) "Video lottery terminal" means a commission-approved
interactive electronic terminal device which is connected with the
commission's central computer system, and which is used for the
purpose of playing video lottery games authorized by the
commission. A video lottery terminal may simulate the play of one
or more video lottery games.
(cc) (ee) "Wager" means a sum of money or thing of value
risked on an uncertain occurrence.
§29-22A-7. License and permit qualifications; individual
qualifications; applicant required to furnish
information; waiver of liability; oath or
affirmation; duty to provide accurate and material
information.
(a) No video lottery license or permit may be granted unless
the commission has determined that the applicant satisfies all of
the following qualifications:
(1) An applicant for a video lottery license must hold a valid
racing license granted by the
West Virginia racing State Gaming and
Alcohol Control Commission under provisions of article
twenty-three, chapter nineteen of this code.
(2) An applicant must be a person of good character and integrity.
(3) An applicant must be a person whose background, including
criminal record, reputation and associations, does not pose a
threat to the security and integrity of the lottery or to the
public interest of the state. All new applicants for licenses and
permits issued by the commission shall furnish fingerprints for a
national criminal records check by the criminal identification
bureau of the West Virginia State Police and the Federal Bureau of
Investigation. The fingerprints shall be furnished by all persons
required to be named in the application and shall be accompanied by
a signed authorization for the release of information by the
criminal investigation bureau and the Federal Bureau of
Investigation. The commission may require any applicant seeking
the renewal of a license or permit to furnish fingerprints for a
national criminal records check by the criminal identification
bureau of the West Virginia State Police and the Federal Bureau of
Investigation. A person who has been convicted of any violation of
article twenty-two of this chapter or of this article or of any
crime related to theft, bribery, gambling or involving moral
turpitude is not eligible for any license or permit. The
commission shall revoke the license or permit of any person who is
convicted of any such crime after a license or permit is granted.
(4) An applicant must be a person who demonstrates the business ability and experience necessary to establish, operate and
maintain the business for which a video lottery license or permit
application is made.
(5) An applicant must be a person who has secured adequate
financing for the business for which a video lottery license or
permit application is made. The commission shall determine whether
financing is from a source which meets the qualifications of this
section and is adequate to support the successful performance of
the duties and responsibilities of the licensed racetrack or permit
holder. An applicant for a video lottery license shall disclose
all financing or refinancing arrangements for the purchase, lease
or other acquisition of video lottery terminals and associated
equipment in the degree of detail requested by the commission. A
licensed racetrack shall request commission approval of any change
in financing or lease arrangements at least thirty days before the
effective date of the change.
(6) A racetrack applying for a video lottery license or a
license renewal must present to the commission evidence of the
existence of an agreement, regarding the proceeds from video
lottery terminals, between the applicant and the representative of
a majority of the horse owners and trainers, the representative of
a majority of the pari-mutuel clerks and the representative of a
majority of the breeders or the representative of a majority of the kennel owners for the applicable racetrack who hold permits
required by section two, article twenty-three, chapter nineteen of
this code.
(7) (6) A racetrack applying for a video lottery license or a
license renewal must file with the commission a copy of any current
or proposed agreement between the applicant and any manufacturer
for the sale, lease or other assignment to the racetrack of video
lottery terminals, the electronic computer components of the
terminals, the random number generator of the terminals, or the
cabinet in which it is housed. Once filed with the commission, the
agreement is a public document subject to the provisions of article
one, chapter twenty-nine-b of this code.
(b) No video lottery license or permit may be granted to an
applicant until the commission determines that each person who has
control of the applicant meets all applicable qualifications of
subsection (a) of this section. The following persons are
considered to have control of an applicant:
(1) Each person associated with a corporate applicant,
including any corporate holding company, parent company or
subsidiary company of the applicant, but not including a bank or
other licensed lending institution which holds a mortgage or other
lien acquired in the ordinary course of business, who has the
ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation.
(2) Each person associated with a noncorporate applicant who
directly or indirectly holds any beneficial or proprietary interest
in the applicant or who the commission determines to have the
ability to control the applicant.
(3) Key personnel of an applicant, including any executive,
employee or agent, having the power to exercise significant
influence over decisions concerning any part of the applicant's
business operation.
(c) Applicants must furnish all information, including
financial data and documents, certifications, consents, waivers,
individual history forms and other materials requested by the
commission for purposes of determining qualifications for a license
or permit. No video lottery license or permit may be granted to an
applicant who fails to provide information and documentation
requested by the commission. The burden of proving qualification
for any video lottery license or permit is on the applicant.
(d) Each applicant bears all risks of adverse public notice,
embarrassment, criticism, damages or financial loss which may
result from any disclosure or publication of any material or
information obtained by the commission pursuant to action on an
application. The applicant shall, as a part of its application,
expressly waive any and all claims against the commission, the State of West Virginia and the employees of either for damages as
a result of any background investigation, disclosure or publication
relating to an application for a video lottery license or permit.
(e) All application, registration and disclosure forms and
other documents submitted to the commission by or on behalf of the
applicant for purposes of determining qualification for a video
lottery license or permit shall be sworn to or affirmed before an
officer qualified to administer oaths.
(f) An applicant who knowingly fails to reveal any fact
material to qualification or who knowingly submits false or
misleading material information is ineligible for a video lottery
license or permit.
§29-22A-10. Accounting and reporting; commission to provide
communications protocol data; distribution of net
terminal income; remittance through electronic
transfer of funds; establishment of accounts and
nonpayment penalties; commission control of
accounting for net terminal income; settlement of
accounts; manual reporting and payment may be
required; request for reports; examination of
accounts and records.
(a) The commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall be
remitted to the commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the commission. Licensed racetracks
must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the commission, the commission shall
deduct an amount sufficient to reimburse the commission for its
actual costs and expenses incurred in administering racetrack video
lottery at the licensed racetrack, and the resulting amount after
the deduction is the net terminal income. The amount deducted for
administrative costs and expenses of the commission may not exceed
four percent of gross terminal income:
Provided, That any amounts
deducted by the commission for its actual costs and expenses that
exceeds its actual costs and expenses shall be deposited into the
State Lottery Fund. For the fiscal years ending June 30
two thousand six, two thousand seven, 2008, 2009, 2010 and 2011, the
term "actual costs and expenses" shall include transfers of no more
than $20 million in any year to the Revenue Center Construction
Fund created by
subsection (l), section eighteen, article
twenty-two of this chapter for the purpose of constructing a state
office building. For all fiscal years beginning on or after July
1, 2001, the commission
shall may not receive an amount of gross
terminal income in excess of the amount of gross terminal income
received during the fiscal year ending June 30, 2001, but four
percent of any amount of gross terminal income received in excess
of the amount of gross terminal income received during the fiscal
year ending June 30, 2001, shall be deposited into the fund
established in section eighteen-a, article twenty-two of this
chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after July 1,
2001, any amount of net terminal income received in excess of the
amount of net terminal income received during the fiscal year
ending June 30, 2001, shall be divided as set out in section ten-b
of this article. The licensed racetrack's share is in lieu of all
lottery agent commissions and is considered to cover all costs and
expenses required to be expended by the licensed racetrack in
connection with video lottery operations. The division shall be made as follows:
(1) The commission shall receive thirty percent of net
terminal income, which shall be paid into the State Lottery Fund as
provided in section ten-a of this article;
(2)
Until the first day of July, two thousand five, fourteen
Seven percent of net terminal income at a licensed racetrack shall
be deposited in the special fund established by the licensee, and
used for payment of regular purses in addition to other amounts
provided
for in article twenty-three, chapter nineteen of this
code;
on and after the first day of July, two thousand five, the
rate shall be seven percent of net terminal income
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income
: Provided,
That:
(A) Beginning July 1, 1999, and thereafter, any amount in
excess of the two percent received during the fiscal year 1999 by
a county in which a racetrack is located that has participated in
the West Virginia Thoroughbred Development Fund since on or before
January 1, 1999, shall be divided as follows:
(I) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, said fifty percent to be divided among the municipalities on a per capita basis as determined by the
most recent decennial United States census of population; and
(B) Beginning July 1, 1999, and thereafter, any amount in
excess of the two percent received during the fiscal year 1999 by
a county in which a racetrack other than a racetrack described in
paragraph (A) of this proviso is located and where the racetrack
has been located in a municipality within the county since on or
before January 1, 1999, shall be divided, if applicable, as
follows:
(I) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any other county other than a county
described in paragraph (A) or (B) of this proviso;
(4) One percent of net terminal income shall be paid for and
on behalf of all employees of the licensed racing association by
making a deposit into a special fund to be established by the
Racing Commission to be used for payment into the pension plan for
all employees of the licensed racing association;
(5) The West Virginia Thoroughbred Development Fund created
under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund
created under section ten of said article shall receive
an equal
share of a total of not less than one and one-half percent of the
net terminal income;
(6) The
West Virginia Racing Commission shall
receive deposit
one percent of the net terminal income
which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-six and one-half percent of
net terminal income;
(8) (A) The tourism promotion fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income
: Provided, That for the
fiscal year beginning July 1, 2003, the tourism commission shall
transfer from the tourism promotion fund $5 million of the three
percent of the net terminal income described in this section and
section ten-b of this article into the fund administered by the
West Virginia economic development authority pursuant to section
seven, article fifteen, chapter thirty-one of this code, $5 million
into the Capitol Renovation and Improvement Fund administered by
the Department of Administration pursuant to section six, article
four, chapter five-a of this code and $5 million into the Tax
Reduction and Federal Funding Increased Compliance Fund;
and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
June 30, 2004, this three percent of net terminal income and the
three percent of net terminal income described in
paragraph (B),
subdivision (8), subsection (a), section ten-b of this article
shall be distributed as provided in this paragraph as follows:
(I) 1.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the tourism promotion fund created under
section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Development Office Promotion Fund
created under section three-b, article two, chapter five-b of this
code;
(iii) 0.5 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Research Challenge Fund created under
section
ten twelve, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to
section six, article four, chapter five-a of this code; and
(v) 0.0625 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the 2004 Capitol Complex Parking Garage
Fund administered by the Department of Administration pursuant to
section five-a, article four, chapter five-a of this code;
(9) (A) On and after July 1, 2005, seven percent of net
terminal income shall be deposited into the Workers' Compensation
Debt Reduction Fund created in section five, article two-d, chapter
twenty-three of this code
: Provided, That in any fiscal year when
the amount of money generated by this subdivision totals $11
million, all subsequent distributions under this subdivision shall
be deposited in the special fund established by the licensee and
used for the payment of regular purses in addition to the other
amounts provided
for in article twenty-three, chapter nineteen of
this code;
(B) The deposit of the seven percent of net terminal income
into the Worker's Compensation Debt Reduction Fund pursuant to this
subdivision shall expire and not be imposed with respect to these
funds and shall be deposited in the special fund established by the
licensee and used for payment of regular purses in addition to the
other amounts provided
for in article twenty-three, chapter nineteen of this code, on and after the first day of the month
following the month in which the Governor certifies to the
Legislature that:
(I) The revenue bonds issued pursuant to article two-d,
chapter twenty-three of this code, have been retired or payment of
the debt service provided for; and
(ii) That an independent certified actuary has determined that
the unfunded liability of the old fund, as defined in chapter
twenty-three of this code, has been paid or provided
for in its
entirety; and
(10) The remaining one percent of net terminal income shall be
deposited as follows:
(A) For the fiscal year beginning on the first day of July,
two thousand three, the veterans memorial program shall receive one
percent of the net terminal income until sufficient moneys have
been received to complete the veterans memorial on the grounds of
the state Capitol complex in Charleston, West Virginia. The moneys
shall be deposited in the State Treasury in the Division of Culture
and History special fund created under section three, article
one-I, chapter twenty-nine of this code: Provided, That only after
sufficient moneys have been deposited in the fund to complete the
veterans memorial and to pay in full the annual bonded indebtedness
on the veterans memorial, not more than twenty thousand dollars of the one percent of net terminal income provided for in this
subdivision shall be deposited into a special revenue fund in the
State Treasury, to be known as the "John F. 'Jack' Bennett Fund".
The moneys in this fund shall be expended by the division of
Veterans Affairs to provide for the placement of markers for the
graves of veterans in perpetual cemeteries in this state. The
division of Veterans Affairs shall promulgate legislative rules
pursuant to the provisions of article three, chapter twenty-nine-a
of this code specifying the manner in which the funds are spent,
determine the ability of the surviving spouse to pay for the
placement of the marker and setting forth the standards to be used
to determine the priority in which the veterans grave markers will
be placed in the event that there are not sufficient funds to
complete the placement of veterans grave markers in any one year,
or at all. Upon payment in full of the bonded indebtedness on the
veterans memorial, one hundred thousand dollars of the one percent
of net terminal income provided for in this subdivision shall be
deposited in the special fund in the Division of Culture and
History created under section three, article one-I, chapter
twenty-nine of this code and be expended by the Division of Culture
and History to establish a West Virginia veterans memorial archives
within the cultural center to serve as a repository for the
documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol
grounds: Provided, however, That five hundred thousand dollars of
the one percent of net terminal income shall be deposited in the
State Treasury in a special fund of the Department of
Administration, created under section five, article four, chapter
five-a of this code, to be used for construction and maintenance of
a parking garage on the State Capitol complex; and the remainder of
the one percent of net terminal income shall be deposited in equal
amounts in the capitol dome and improvements fund created under
section two, article four, chapter five-a of this code and cultural
facilities and capitol resources matching grant program fund
created under section three, article one of this chapter.
(B) For each fiscal year beginning after June 30, 2004:
(I) (A) $500,000 of the one percent of net terminal income
shall be deposited in the State Treasury in a special fund of the
Department of Administration, created under section five, article
four, chapter five-a of this code, to be used for construction and
maintenance of a parking garage on the State Capitol complex; and
(ii) (B) The remainder of the one percent of net terminal
income and all of the one percent of net terminal income described
in paragraph (B), subdivision
(9) (10), subsection (a), section
ten-b of this article twenty-two-a shall be distributed as follows:
The net terminal income shall be deposited in equal amounts into the Capitol Dome and Capitol Improvements Fund created under
section two, article four, chapter five-a of this code and the
Cultural Facilities and Capitol Resources Matching Grant Program
Fund created under section three, article one, chapter twenty-nine
of this code until a total of $1.5 million is deposited into the
Cultural Facilities and Capitol Resources Matching Grant Program
Fund; thereafter, the remainder shall be deposited into the Capitol
Dome and Capitol Improvements Fund.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from its
operation of video lottery machines, to be electronically
transferred by the commission on dates established by the
commission. Upon a licensed racetrack's failure to maintain this
balance, the commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is
made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax delinquency
under chapter eleven of this code. The interest shall begin to
accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery terminals. Each licensed
racetrack shall report to the commission any discrepancies between
the commission's statement and each terminal's mechanical and
electronic meter readings. The licensed racetrack is solely
responsible for resolving income discrepancies between actual money
collected and the amount shown on the accounting meters or on the
commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the commission
the maintenance log which includes current mechanical meter
readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter
readings and the commission's records cannot be reconciled, final
disposition of the matter shall be determined by the commission.
Any accounting discrepancies which cannot be otherwise resolved
shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the commission
notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal to
the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which
are cleared from the video lottery terminal in exchange for winning
redemption tickets, and remit the amount as generated from its
terminals during the reporting period. The remittance shall be
sealed in a properly addressed and stamped envelope and deposited
in the United States mail no later than noon on the day when the
payment would otherwise be completed through electronic funds
transfer.
(h) Licensed racetracks may, upon request, receive additional
reports of play transactions for their respective video lottery
terminals and other marketing information not considered
confidential by the commission. The commission may charge a
reasonable fee for the cost of producing and mailing any report
other than the billing statements.
(I) The commission has the right to examine all accounts, bank
accounts, financial statements and records in a licensed
racetrack's possession, under its control or in which it has an
interest and the licensed racetrack shall authorize all third
parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
commission.
ARTICLE 22B. LIMITED VIDEO LOTTERY.
§29-22B-306. Commission or State Lottery Commission defined.
"Commission" or "State Lottery Commission" means the
West
Virginia lottery State Gaming and Alcohol Control Commission
created by
section four, article twenty-two of this chapter.
§29-22B-308. Director defined.
"Director" means the individual appointed by the Governor to
provide management and administration necessary to direct the
state
lottery office State Gaming and Alcohol Control Agency.
§29-22B-335. West Virginia Racing Commission defined.
"West Virginia Racing Commission" and "Racing Commission" as
used in this article mean the State Gaming and Alcohol Control
Commission.
ARTICLE 22C. WEST VIRGINIA LOTTERY RACETRACK TABLE GAMES ACT.
§29-22C-3. Definitions.
(a)
Applicability of definitions. -- For the purposes of this
article, the words or terms defined in this section, and any
variation of those words or terms required by the context, have the
meanings ascribed to them in this section. These definitions are
applicable unless a different meaning clearly appears from the
context in which the word or term is used.
(b)
Terms defined. --
(1) "Adjusted gross receipts" means gross receipts from West
Virginia Lottery table games less winnings paid to patrons wagering
on the racetrack's table games.
(2) "Applicant" means any person who on his or her own behalf,
or on behalf of another, has applied for permission to engage in
any act or activity that is regulated under the provision of this
article for which a license is required by this article or rule of
the commission.
(3) "Application" means any written request for permission to
engage in any act or activity that is regulated under the
provisions of this article submitted in the form prescribed by the
commission.
(4) "Background investigation" means a security, criminal and
credit investigation of an applicant who has applied for the
issuance or renewal of a license pursuant to this article, or a
licensee who holds a current license.
(5) "Commission" or "State Lottery Commission" means the
West
Virginia Lottery State Gaming and Alcohol Control Commission
created by
section four, article twenty-two of this chapter.
(6) "Complimentary" means a service or item provided at no
cost or at a reduced price.
(7) "Compensation" means any money, thing of value, or
financial benefit conferred or received by a person in return for
services rendered, or to be rendered, whether by that person or
another.
(8) "Contested case" means a proceeding before the commission, or a hearing examiner designated by the commission to hear the
contested case, in which the legal rights, duties, interests or
privileges of specific persons are required by law or
Constitutional right to be determined after a commission hearing,
but does not include cases in which the commission issues a
license, permit or certificate after an examination to test the
knowledge or ability of the applicant where the controversy
concerns whether the examination was fair or whether the applicant
passed the examination and does not include rule making.
(9) "Control" means the authority directly or indirectly to
direct the management and policies of an applicant for a license
issued under this article or the holder of a license issued under
this article.
(10) "Designated gaming area" means one or more specific floor
areas of a licensed racetrack within which the commission has
authorized operation of racetrack video lottery terminals or table
games, or the operation of both racetrack video lottery terminals
and West Virginia Lottery table games.
(11) "Director" means the Director of the
West Virginia State
Lottery Commission State Gaming and Alcohol Control Agency
appointed pursuant to section six, article twenty-two of this
chapter.
(12) "Disciplinary action" is an action by the commission suspending or revoking a license, fining, excluding, reprimanding
or otherwise penalizing a person for violating this article or
rules promulgated by the commission.
(13) "Financial interest" or "financially interested" means
any interest in investments, awarding of contracts, grants, loans,
purchases, leases, sales or similar matters under consideration for
consummation by the commission. A member, employee or agent of the
commission will be considered to have a financial interest in a
matter under consideration if any of the following circumstances
exist:
(A) He or she owns one percent or more of any class of
outstanding securities that are issued by a party to the matter
under consideration by the commission; or
(B) He or she is employed by an independent contractor for a
party to the matter under consideration or consummated by the
commission.
(14) "Gaming equipment" means gaming tables, cards, dice,
chips, shufflers, drop boxes or any other mechanical, electronic or
other device, mechanism or equipment or related supplies used or
consumed in the operation of any West Virginia Lottery table game
at a licensed racetrack.
(15) "Gross receipts" means the total of all sums including
valid or invalid checks, currency, tokens, coupons (excluding match play coupons), vouchers or instruments of monetary value whether
collected or uncollected, received by a racetrack with table games
from table gaming operations at a race track, including all entry
fees assessed for tournaments or other contests.
(16) "Indirect ownership" means an interest a person owns in
an entity or in property solely as a result of application of
constructive ownership rules without regard to any direct ownership
interest (or other beneficial interest) in the entity or property.
"Indirect ownership" shall be determined under the same rules
applicable to determining whether a gain or loss between related
parties is recognized for federal income tax purposes.
(17) "Licensed racetrack" means a thoroughbred horse or
greyhound dog racing facility licensed under both article
twenty-two-a of this chapter and article twenty-three, chapter
nineteen of this code.
(18) "License" means any license applied for or issued by the
commission under this article, including, but not limited to:
(A) A license to act as agent of the commission in operating
West Virginia Lottery table games at a licensed racetrack;
(B) A license to supply a racetrack licensed under this
article to operate table games with table gaming equipment or
services necessary for the operation of table games;
(C) A license to be employed at a racetrack licensed under
this article to operate West Virginia Lottery table games when the
employee works in a designated gaming area that has table games or
performs duties in furtherance of or associated with the operation
of table games at the licensed racetrack; or
(D) A license to provide management services under a contract
to a racetrack licensed under this article to operate table games.
(19) "Licensee" means any person who is licensed under any
provision of this article.
(20) "Lottery" means the public gaming systems or games
regulated, controlled, owned and operated by the State
Lottery
Gaming and Alcohol Control Commission in the manner provided by
general law, as provided in this article and in articles
twenty-two, twenty-two-a, twenty- two-b and twenty-five of this
chapter.
(21) "Member" means a commission member appointed to the
West
Virginia Lottery Commission State Gaming and Alcohol Control
Commission under article twenty-two of this chapter.
(22) "National criminal history background check system" means
the criminal history record system maintained by the Federal Bureau
of Investigation based on fingerprint identification or any other
method of positive identification.
(23) "Own" means any beneficial or proprietary interest in any
real or personal property, including intellectual property, and
also includes, but is not limited to, any direct or indirect
beneficial or proprietary interest in any business of an applicant
or licensee.
(24) "Person" means any natural person, and any corporation,
association, partnership, limited liability company, limited
liability partnership, trust or other entity, regardless of its
form, structure or nature other than a government agency or
instrumentality.
(25) "Player" or "Patron" means a person who plays a racetrack
video lottery game or a West Virginia Lottery table game at a
racetrack licensed under this article to have table games.
(26) "Player's account" means a financial record established
by a licensed racetrack for an individual racetrack patron to which
the racetrack may credit winnings and other amounts due to the
racetrack patron and from which the patron may withdraw moneys due
to the patron for purchase of tokens, chips or electronic media or
other purposes.
(27) "Racetrack table games license" means authorization
granted under this article by the commission to a racetrack that is
already licensed under article twenty-two-a of this chapter to
operate racetrack video lottery terminals and holds a valid racing license granted by the
West Virginia Racing commission pursuant to
the provision of article twenty-three, chapter nineteen of this
code, which permits the racetrack as an agent of the commission for
the limited purpose of operation of West Virginia Lottery table
games in one or more designated gaming areas in one or more
buildings owned by the licensed racetrack on the grounds where live
pari-mutuel racing is conducted by the licensee.
(28) "Racetrack Table Games Fund" means the special fund in
the State Treasury created in section twenty-seven of this article.
(29) "Significant influence" means the capacity of a person to
affect substantially (but not control) either, or both, of the
financial and operating policies of another person.
(30) "Supplier" means a person who the commission has
identified under legislative rules of the commission as requiring
a license to provide a racetrack table games licensee with goods or
services to be used in connection with operation of table games.
(31) "Wager" means a sum of money or thing of value risked on
an uncertain occurrence.
(32) "West Virginia Lottery table game" means any game played
with cards, dice or any mechanical, electromechanical or electronic
device or machine for money, credit or any representative of value,
including, but not limited to, baccarat, blackjack, poker, craps,
roulette, wheel of fortune or any variation of these games similar in design or operation and expressly authorized by rule of the
commission, including multiplayer electronic table games, machines
and devices, but excluding video lottery, punchboards, faro,
numbers tickets, push cards, jar tickets, pull tabs or similar
games.
(33) "Winnings" means the total cash value of all property or
sums including currency, tokens, or instruments of monetary value
paid to players as a direct result of wagers placed on West
Virginia Lottery table games.
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-2. Definitions.
(a) "Applicant" means any person or entity applying for a
license.
(b) "Adjusted gross receipts" means the gross receipts of a
gaming facility from authorized games of chance less winnings paid
to wagerers in the games.
(c) "Authorized game of chance" includes baccarat, twenty-one
or blackjack, poker, craps, roulette, wheel of fortune, video
lottery games and any other Monte Carlo style table game expressly
authorized by rule of the commission, but expressly excludes
punchboards, faro, keno, numbers tickets, push cards, jar tickets,
pull tabs or similar games.
(d) "Controlling interest" means:
(1) For a partnership, an interest as a general or limited
partner holding more than fifty percent interest in the entity;
(2) For a corporation, an interest of more than fifty percent
of the stock in the corporation; and
(3) For any other entity, an ownership interest of more than
fifty percent in the entity.
(e) "Controlling person" means, with respect to another
person, any person directly or indirectly owning or holding a
controlling interest in that other person.
(f) "Commission" means the
state Lottery Commission State
Gaming and Alcohol Control Agency created in section four, article
twenty-two of this chapter.
(g) "Director" means the Director of the
state Lottery
Commission State Gaming and Alcohol Control Agency.
(h) "Gaming devices and supplies" means gaming tables for all
authorized games of chance, roulette wheels, wheels of fortune,
video lottery terminals, cards, dice, chips, tokens, markers or any
other mechanical, electronic or other device, mechanism or
equipment or related supplies utilized in the operation of an
authorized game of chance.
(I) "Gaming facility" means a designated area on the premises
of an historic resort hotel in which authorized games of chance are
conducted by a gaming licensee.
(j) "Gaming licensee" means the licensed operator of a gaming
facility.
(k) "Gross receipts" means the total amount of money exchanged
for the purchase of chips, tokens or electronic cards by patrons of
a gaming facility reduced by gross terminal income to the extent
gross terminal income is included in the amount of money exchanged.
(l) "Gross terminal income" has the same meaning ascribed to
the term as set forth in article twenty-two-a of this chapter.
(m) "Historic resort hotel" means a resort hotel registered
with the United States Department of the Interior as a national
historic landmark in its national registry of historic places
having not fewer than five hundred guest rooms under common
ownership and having substantial recreational guest amenities in
addition to the gaming facility.
(n) "License" means a license issued by the commission,
including:
(1) A license to operate a gaming facility;
(2) A license to supply gaming devices and supplies to a
gaming facility; or
(3) A license to be employed in connection with the operation
of a gaming facility.
(o) "Licensed gaming facility employee" means any individual
licensed to be employed by a gaming licensee in connection with the
operation of a gaming facility.
(p) "Licensed gaming facility supplier" means a person who is
licensed by the commission to engage in the business of supplying
gaming devices and gaming supplies to a gaming facility.
(q) "Licensee" means a gaming licensee, a licensed gaming
facility supplier or a licensed gaming facility employee.
(r) "Person" means any natural person, corporation,
association, partnership, limited partnership, limited liability
company or other entity, regardless of its form, structure or
nature.
(s) "State Gaming Fund" means the special fund in the State
Treasury created in section twenty-two of this article.
(t) "Video lottery games" and "video lottery terminals" have
the same meaning ascribed the terms in article twenty-two-a of this
chapter.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 20. CHARITABLE BINGO.
§47-20-1a. Powers and duties transferred to State Gaming and
Alcohol Control Commission.
Effective July 1, 2009, the powers and duties of the Tax
Commissioner under this article, including, but not limited to, the Tax Commissioner's authority to investigate and audit for
compliance with this article are transferred to the State Gaming
and Alcohol Control Commission created in article twenty-two,
chapter twenty-nine of this code, and, as delegated by the
commission, to the Director of the State Gaming and Alcohol Control
Agency.
§47-20-1b. Effect of transfer on existing rules, licenses and
permits.
(a) All rules promulgated by the Tax Commissioner and in
effect July 1, 2009, shall remain in effect until superseded, or
except as amended or repealed, in accordance with the provisions of
this article.
(b) Any license or permit issued by the Tax Commissioner under
the provisions of this article prior to July 1, 2009, which has not
expired and which had not been suspended or revoked prior to July
1, 2009, shall remain valid until the expiration and may be renewed
thereof, unless such license or permit is sooner suspended or
revoked in accordance with the provisions of this article.
§47-20-2. Definitions.
For purposes of this article, unless specified otherwise:
(a) "Bingo" means the game wherein participants pay
consideration for the use of one or more cards bearing several rows
of numbers in which no two cards played in any one game contain the same sequence or pattern. When the game commences, numbers are
selected by chance, one by one, and announced. The players cover
or mark those numbers announced as they appear on the card or cards
which they are using. The player who first announces that he or
she has covered a predetermined sequence or pattern which had been
preannounced for that game is, upon verification that he or she has
covered the predetermined sequence or pattern, declared the winner
of that game.
(b) "Bingo occasion" or "occasion" means a single gathering or
session at which a series of one or more successive bingo games is
conducted by a single licensee.
(c) "Charitable or public service activity or endeavor" means
any bona fide activity or endeavor which directly benefits a number
of people by:
(1) Assisting them to establish themselves in life as
contributing members of society through education or religion; or
(2) Relieving them from disease, distress, suffering,
constraint, or the effects of poverty;
(3) Increasing their comprehension of and devotion to the
principles upon which this nation was founded and to the principles
of good citizenship;
(4) Making them aware of or educating them about issues of
public concern so long as the activity or endeavor is not aimed at influencing legislation or supporting or participating in the
campaign of any candidate for public office;
(5) By lessening the burdens borne by government or
voluntarily supporting, augmenting or supplementing services which
government would normally render to the people;
(6) Providing or supporting nonprofit community activities for
youth, senior citizens or the disabled; or
(7) Providing or supporting nonprofit cultural or artistic
activities.
(d) "Charitable or public service organization" means a bona
fide, not for profit, tax-exempt, benevolent, educational,
philanthropic, humane, patriotic, civic, religious, fraternal, or
eleemosynary incorporated or unincorporated association or
organization; or a volunteer fire department, rescue unit or other
similar volunteer community service organization or association;
but does not include any nonprofit association or organization,
whether incorporated or not, which is organized primarily for the
purposes of influencing legislation or supporting or promoting the
campaign of any candidate for public office.
An organization or association is tax-exempt if it is, and has
received from the Internal Revenue Service a determination letter
that is currently in effect stating that the organization is,
exempt from federal income taxation under subsection 501(a) and described in subsection 501(c)(3), 501(c)(4), 501(c)(8),
501(c)(10), 501(c)(19) or 501(d) of the Internal Revenue Code.
(e) "Commissioner,"
"Tax Commissioner" or "commission" means
the state Tax Commissioner mean the Director of the State Gaming
and Alcohol Control Agency.
(f) "Concession" means any stand, booth, cart, counter or
other facility, whether stationary or movable, where beverages,
both alcoholic and nonalcoholic, food, snacks, cigarettes or other
tobacco products, newspapers, souvenirs or any other items are sold
to patrons by an individual operating the facility.
Notwithstanding anything contained in subdivision (2), subsection
(a), section twelve, article seven, chapter sixty of this code to
the contrary, "concession" includes beverages which are regulated
by and are subject to the provisions of chapter sixty of this code
:
Provided, That in no case may the sale or the consumption of
alcoholic beverages or nonintoxicating beer be permitted in any
area where bingo is conducted.
(g) "Conduct" means to direct the actual playing of a bingo
game by activities including, but not limited to, handing out bingo
cards, collecting fees, drawing the numbers, announcing the
numbers, posting the numbers, verifying winners and awarding
prizes.
(h) "Expend net proceeds for charitable or public service
purposes" means to devote the net proceeds of a bingo occasion or
occasions to a qualified recipient organization or as otherwise
provided by this article and approved by the commissioner pursuant
to section fifteen of this article.
(I) "Gross proceeds" means all moneys collected or received
from the conduct of bingo at all bingo occasions held by a licensee
during a license period; this term shall not be considered to
include any moneys collected or received from the sale of
concessions at bingo occasions.
(j) "Joint bingo occasion" means a single gathering or session
at which a series of one or more successive bingo games is
conducted by two or more licensees.
(k) "Licensee" means any organization or association granted
an annual, limited occasion or state fair bingo license pursuant to
the provisions of this article.
(l) "Net proceeds" means all moneys collected or received from
all the conduct of bingo at bingo occasions held by a licensee
during a license period after payment of expenses authorized by
sections ten, thirteen, fifteen and twenty-two of this article;
this term shall not be considered to include moneys collected or
received from the sale of concessions at bingo occasions.
(m) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership or
other nongovernmental entity or institution.
(n) "Patron" means any individual who attends a bingo occasion
other than an individual who is participating in the conduct of the
occasion or in the operation of any concession, whether or not the
individual is charged an entrance fee or plays any bingo games.
(o) "Qualified recipient organization" means any bona fide,
not for profit, tax-exempt, as defined in subdivision (d) of this
section, incorporated or unincorporated association or organization
which is organized and functions exclusively to directly benefit a
number of people as provided in subparagraphs (1) through (7),
subdivision (c) of this section. "Qualified recipient
organization" includes without limitation any licensee which is
organized and functions exclusively as provided in this
subdivision.
(p) "Venue" means the location in which bingo occasions are
held.
ARTICLE 21. CHARITABLE RAFFLES.
§47-21-1a. Powers and duties transferred to State Gaming and
Alcohol Control Commission.
Effective July 1, 2009, the powers and duties of the Tax
Commissioner under this article, including, but not limited to, the Tax Commissioner's authority to investigate and audit for
compliance with this article are transferred to the State Gaming
and Alcohol Control Commission created in article twenty-two,
chapter twenty-nine of this code, and, as delegated by the
commission, to the Director of the State Gaming and Alcohol Control
Agency.
§47-21-1b. Effect of transfer on existing rules, licenses and
permits.
(a) All rules promulgated by the Tax Commissioner and in
effect on the effective date of section one-a of this article shall
remain in full force and effect until superseded, or except as
amended or repealed, in accordance with the provisions of this
article.
(b) Any license or permit issued by the Tax Commissioner under
the provisions of this article prior to July 1, 2009, which has not
expired and which had not been suspended or revoked prior to July
1, 2009, shall remain valid until the expiration thereof, unless
such license or permit is sooner suspended or revoked in accordance
with the provisions of this article.
§47-21-2. Definitions.
For purposes of this article, unless specified otherwise:
(a) "Charitable or public service activity or endeavor" means
any bona fide activity or endeavor which directly benefits a number of people by:
(1) Contributing to educational or religious purposes; or
(2) Relieving them from disease, distress, suffering,
constraint or the effects of poverty; or
(3) Increasing their comprehension of and devotion to the
principles upon which this nation was founded and to the principles
of good citizenship; or
(4) Making them aware of or educating them about issues of
public concern so long as the activity or endeavor is not aimed at
supporting or participating in the campaign of any candidate for
public office; or
(5) By lessening the burdens borne by government or
voluntarily supporting, augmenting or supplementing services which
government would normally render to the people; or
(6) Providing or supporting nonprofit community activities for
youth, senior citizens or the disabled; or
(7) Providing or supporting nonprofit cultural or artistic
activities; or
(8) Providing or supporting any political party executive
committee.
(b) "Charitable or public service organization" means a bona
fide, not for profit, tax-exempt, benevolent, educational,
philanthropic, humane, patriotic, civic, religious, fraternal or eleemosynary incorporated or unincorporated association or
organization; or a volunteer fire department, rescue unit or other
similar volunteer community service organization or association;
but does not include any nonprofit association or organization,
whether incorporated or not, which is organized primarily for the
purposes of influencing legislation or supporting or promoting the
campaign of any single candidate for public office.
(c) "Commissioner"
or "Tax Commissioner" means the state Tax
Commissioner mean the Director of the State Gaming and Alcohol
Control Agency.
(d) "Concession" means any stand, booth, cart, counter or
other facility, whether stationary or movable, where beverages,
both alcoholic and nonalcoholic, food, snacks, cigarettes or other
tobacco products, newspapers, souvenirs or any other items are sold
to patrons by an individual operating the facility.
Notwithstanding anything contained in subdivision (2), subsection
(a), section twelve, article seven, chapter sixty of this code to
the contrary, "concession" includes beverages which are regulated
by and shall be subject to the provisions of chapter sixty of this
code.
(e) "Conduct" means to direct the actual holding of a raffle
by activities including, but not limited to, handing out tickets,
collecting money, drawing the winning numbers or names, announcing the winning numbers or names, posting the winning numbers or names,
verifying winners and awarding prizes.
(f) "Expend net proceeds for charitable or public service
purposes" means to devote the net proceeds of a raffle occasion or
occasions to a qualified recipient organization or as otherwise
provided by this article and approved by the commissioner pursuant
to section fifteen of this article.
(g) "Gross proceeds" means all moneys collected or received
from the conduct of a raffle or raffles at all raffle occasions
held by a licensee during a license period; this term shall not be
deemed to include any moneys collected or received from the sale of
concessions at raffle occasions.
(h) "Joint raffle occasion" means a single gathering or
session at which a series of one or more successive raffles is
conducted by two or more licensees.
(I) "Licensee" means any organization or association granted
an annual or limited occasion license pursuant to the provisions of
this article.
(j) "Net proceeds" means all moneys collected or received from
the conduct of raffle or raffles at occasions held by a licensee
during a license period after payment of the raffle expenses
authorized by sections eleven, thirteen and fifteen of this article; this term shall not be deemed to include moneys collected
or received from the sale of concessions at raffle occasions.
(k) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership or
other nongovernmental entity or institution.
(l) "Patron" means any individual who attends a raffle
occasion other than an individual who is participating in the
conduct of the occasion or in the operation of any concession,
whether or not the individual is charged an entrance fee or
participates in any raffle.
(m) "Qualified recipient organization" means any bona fide,
not for profit, tax-exempt, as defined in subdivision (p) of this
section, incorporated or unincorporated association or organization
which is organized and functions exclusively to directly benefit a
number of people as provided in subparagraphs (1) through (7),
subdivision (a) of this section. "Qualified recipient
organization" includes, without limitation, any licensee which is
organized and functions exclusively as provided in this
subdivision.
(n) "Raffle" means a game involving the selling of tickets to
participate in such game entitling the holder or holders to a
chance on a prize or prizes.
(o) "Raffle occasion" or "occasion" means a single gathering
or session at which a series of one or more successive raffles is
conducted by a single licensee.
(p) "Tax-exempt association or organization" means an
association or organization which is, and has received from the
"Internal Revenue Service" a determination letter that is currently
in effect stating that the organization is exempt from federal
income taxation under subsection 501(a) and described in subsection
501(c)(3), 501(c)(4), 501(c)(8), 501(c)(10), 501(c)(19) or 501(d)
of the Internal Revenue Code of 1986, as amended; or is exempt from
income taxes under subsection 527(a) of said code.
ARTICLE 23. CHARITABLE RAFFLE BOARDS AND GAMES.
§47-23-1a. Powers and duties transferred to State Gaming and
Alcohol Control Commission.
Effective July 1, 2009, the powers and duties of the Tax
Commissioner under this article, including, but not limited to, the
Tax Commissioner's authority to investigate and audit for
compliance with this article are transferred to the State Gaming
and Alcohol Control Commission created in article twenty-two,
chapter twenty-nine of this code, and, as delegated by the
commission, to the Director of the State Gaming and Alcohol Control
Agency.
§47-23-1b. Effect of transfer on existing rules, licenses and permits.
(a) All rules promulgated by the Tax Commissioner and in
effect on the effective date of section one-a of this article shall
remain in full force and effect until superseded, or except as
amended or repealed, in accordance with the provisions of this
article.
(b) Any license or permit issued by the Tax Commissioner under
the provisions of this article prior to July 1, 2009, which has not
expired and which had not been suspended or revoked prior to July
1, 2009, shall remain valid until the expiration thereof, unless
such license or permit is sooner suspended or revoked in accordance
with the provisions of this article.
§47-23-2. Definitions.
For purposes of this article, unless specified otherwise:
(a) "Commissioner"
or "Tax Commissioner" means Tax
Commissioner of the State of West Virginia, or his delegate mean
the Director of the State Gaming and Alcohol Control Agency.
(b) "Retail value" means the actual consideration paid to the
wholesaler by the retailer for any raffle boards or games.
(c) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership or
other nongovernmental entity or institution.
(d) "Retailer" means every person engaged in the business of
making retail sales of raffle chances except a charitable or public
service organization authorized to conduct raffles pursuant to
section three, article twenty-one of this chapter.
(e) "Charitable raffle board" or "charitable raffle game"
means: (1) A board or other device that has many folded printed
slips to be pulled from the board or otherwise distributed without
a board on payment of a nominal sum in an effort to obtain a slip
or chance that entitles the player to a designated prize; (2) a
series of paper cards with perforated break-open tabs, a face value
of which is covered or otherwise hidden from view to conceal one or
more numbers, letters or symbols, which, on payment of a nominal
sum, entitles the player to obtain a chance to a designated prize;
or (3) such other similar game which may be defined by the State
Tax Commissioner by legislative rule.
(f) "Sale" means the transfer of the ownership of tangible
personal property for a consideration.
(g) "Verification" means a unique manufacture identifiable
serial number which is required to be printed on each ticket in a
charitable raffle board or charitable raffle game or such other
form of identification as may be prescribed by the Tax Commissioner
upon a showing of undue hardship by the taxpayer:
Provided, That
such other form of identification shall be prescribed by rule in accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(h) "Wholesaler" or "distributor" means any person or entity
engaged in the wholesale distribution of charitable raffle boards
or games or similar boards or devices, as defined by the
commissioner, and licensed under the provisions of this article, to
distribute said devices to charitable raffle boards or games
retailers as defined in this article. It also includes anyone who
is engaged in the manufacturing, packaging, preparing or
repackaging of charitable raffle boards or games for distribution
in this state:
Provided, That no license taxes or other fees
provided
for in this section may be charged to any newspaper or
other printing or duplicating operation not regularly engaged in
the business of manufacturing, packaging, preparing or repackaging
charitable raffle boards or games where the gross sales of such
printing or duplicating operation from such activity does not
exceed $7,500 per calendar year and who is donating such items or
services to a nonprofit entity without compensation may not be
considered a "wholesaler" or "distributor" under this article.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 1. GENERAL PROVISIONS.
§60-1-4. Sales to be made by or through the State Gaming and
Alcohol Control Agency.
Alcoholic liquors shall be sold at wholesale and retail in
this state only by or through the
West Virginia Alcohol Beverage
Control Commissioner or retail agencies established by him or any
predecessor commissioners or commission State Gaming and Alcohol
Control Agency, except as authorized by articles seven and eight of
this chapter.
§60-1-5. Definitions.
For the purposes of this chapter:
(a) "Alcohol" shall mean ethyl alcohol whatever its origin and
shall include synthetic ethyl alcohol but not denatured alcohol.
(b) "Alcoholic liquor" shall include alcohol, beer, wine and
spirits, and any liquid or solid capable of being used as a
beverage, but shall not include nonintoxicating beer.
(c) "An agency" shall mean a drugstore, grocery store or
general store designated by the commission as a retail distributor
of alcoholic liquor for the West Virginia Alcohol Beverage Control
Commissioner.
(d) "Beer" shall mean any beverage obtained by the
fermentation of barley, malt, hops, or any other similar product or
substitute, and containing more alcohol than that of
nonintoxicating beer.
(e) "Brewery" shall mean an establishment where beer is
manufactured or in any way prepared.
(f) "Commissioner,"
or "Commission,"
shall mean the "West
Virginia Alcohol Beverage Control Commissioner"
or "State Gaming
and Alcohol Control Commission" shall mean the State Gaming and
Alcohol Control Commission created by section four, article
twenty-two, chapter twenty-nine of this code. As of July 1, 2009,
any reference to the "Alcohol Beverage Control Commissioner" in
this chapter or anywhere else in this code shall be construed to
mean the State Gaming and Alcohol Control Commission.
(g) "Department" shall mean the organization through which the
commission exercises powers imposed upon it by this chapter.
(h) "Director" means the Director of the State Gaming and
Alcohol Control Agency created by section six, article twenty-two,
chapter twenty-nine of this code.
(I) "Distillery" shall mean an establishment where alcoholic
liquor other than wine or beer is manufactured or in any way
prepared.
(j) "Intoxicated" shall mean having one's faculties impaired
by alcohol or other drugs to the point where physical or mental
control or both are markedly diminished.
(k) "Manufacture" means to distill, rectify, ferment, brew,
make, mix, concoct, process, blend, bottle, or fill an original
package with any alcoholic liquor.
(l) "Manufacturer" shall mean any person engaged in the
manufacture of any alcoholic liquor, and among others includes a
distiller, a rectifier, a wine maker and a brewer.
(m) "Nonintoxicating beer" shall mean any beverage, obtained
by the fermentation of barley, malt, hops, or similar products or
substitute, and containing not more alcohol than that specified by
section two, article sixteen, chapter eleven.
of this code
(n) "Original package" shall mean any closed or sealed
container or receptacle used for holding alcoholic liquor.
(o) "Person" shall mean an individual, firm, partnership,
limited partnership, corporation or voluntary association.
(p) "Public place" shall mean any place, building or
conveyance to which the public has, or is permitted to have access,
including restaurants, soda fountains, hotel dining rooms, lobbies,
and corridors of hotels and any highway, street, lane, park or
place of public resort or amusement
: Provided, That the term
"public place" shall not mean or include any of the above-named
places or any portion or portions thereof which qualify and are
licensed under the provisions of this chapter to sell alcoholic
liquors for consumption on the premises.
(q) "Sale" shall mean any transfer, exchange or barter in any
manner or by any means, for a consideration, and shall include all
sales made by principal, proprietor, agent or employee.
(r) "Selling" shall include solicitation or receipt of orders;
possession for sale; and possession with intent to sell.
(s) "Spirits" shall mean any alcoholic beverage obtained by
distillation and mixed with potable water and other substances in
solution, and includes brandy, rum, whiskey, cordials and gin.
(t) "State Gaming and Alcohol Control Agency" means the
division established in article twenty-two, chapter twenty-nine of
this code.
(u) "State liquor store" shall mean a store established and
operated by the commission under this chapter for the sale of
alcoholic liquor in the original package for consumption off the
premises.
(v) "Wine" shall mean any alcoholic beverage obtained by the
fermentation of the natural content of fruits, or other
agricultural products, containing sugar.
(w) "Winery" shall mean an establishment where wine is
manufactured or in any way prepared.
ARTICLE 2. ALCOHOLIC BEVERAGE CONTROL COMMISSIONER.
§60-2-1. Office created; powers and functions generally; office of
liquor control commissioner abolished and powers
transferred.
To accomplish the purposes of this chapter there is hereby
created the office of The West Virginia Alcohol Beverage Control Commissioner
is hereby abolished effective July 1, 2009. On and
after that date, the State Gaming and Alcohol Control Commission
created by section four, article twenty-two, chapter twenty-nine of
this code shall on and after that date have sole responsibility for
the administration of this article, except for those
responsibilities delegated to or reserved for the Director of the
State Gaming and Alcohol Control Agency created by section six,
article twenty-two, chapter twenty-nine of this code. The
commissioner State Gaming and Alcohol Control Commission shall have
and is hereby granted all of the powers and authority and shall
perform all of the functions and services heretofore vested in and
performed by the West Virginia liquor control commissioner. The
office of the West Virginia liquor control commissioner is hereby
abolished. Wherever in this chapter and elsewhere in law reference
is made to the West Virginia liquor control commissioner,
or liquor
control commission,
Alcohol Beverage Control Commissioner, or
Alcohol Beverage Control Commission such reference shall henceforth
be construed and understood to mean the
West Virginia Alcohol
Beverage Control Commissioner State Gaming and Alcohol Control
Commission. All parts and provisions of this chapter rendered
meaningless and inapplicable by the provisions hereof are hereby
modified and amended so that the provisions of this chapter will be
consistent and harmonious in their entirety.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSES
§60-3A-9. Investigation of applicants for retail license;
notification to applicants approving or denying
application; general provisions relating to
licensing.
(a) Upon receipt of an application for a retail license and
such supplemental information as the commissioner may require, the
commissioner may conduct such investigation of an applicant as
deemed necessary or desirable.
(b) Upon the completion of any investigation of an applicant,
the commissioner shall inform such applicant in writing whether the
application has been approved or denied, and shall post a copy of
the decision in the commissioner's office.
(c) When an application is denied, the
commissioner director
shall provide the applicant the reasons for the denial, including
specific findings of fact, and the applicant shall be entitled to
a hearing before the
commissioner commission or a hearing examiner
designated by the commission if a hearing is requested within
five
ten days of the decision. Any such hearing shall be held as
specified in section twenty-eight of this article, but the decision
after hearing shall, notwithstanding the provisions of section
twenty-eight, be final and binding and not subject to judicial
review.
(d) An applicant shall provide all information required by
this article and satisfy all requests for information pertaining to
qualification and in the form specified by the commissioner. By
filing an application, an applicant shall waive liability for any
damages resulting from any disclosure or publication in any manner
of any material or information acquired during inquiries,
investigations or hearings.
§60-3A-32. Fees to support State Gaming and Alcohol Control
Agency.
License fees imposed by article four, chapter sixty of this
code, private club license fees imposed by article seven of this
chapter, and sale of wine license fees imposed by article eight of
this chapter shall be deposited in the nonappropriated special
account established in the State Treasury by section eight-a,
article twenty-two, chapter twenty-nine of this code. The fees
deposited in the nonappropriated special account shall be used by
the State Gaming and Alcohol Control Agency to pay salaries and
other expenses. The expenditures may include, but shall not be
limited to, employee compensation, equipment, computer software,
office supplies, rent and travel expenses. On the last day of each
fiscal year, unencumbered and undesignated funds from deposits of
fees imposed for nonintoxicating beer under article sixteen,
chapter eleven or for alcohol control under chapter sixty of this code that remain in the nonappropriated special account in excess
of $250,000 shall be transferred to the General Revenue Fund.
NOTE: The purpose of this bill is to consolidate and combine all
gambling related functions, the State Athletic Commission, and the
Alcohol Beverages Control Administration within the Department of
Revenue.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§19-23-3 has been reorganized, and strike-throughs indicate
language that would be stricken from present law, and underscoring
indicates new language that would be added.
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