COMMITTEE SUBSTITUTE

FOR

H. B. 2765

(By Delegates Willis, Campbell, Yeager, Tillis, Smirl and

Leach)


(Originating in the Committee on Finance)
[March 28, 1997]


A BILL to amend chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-five, relating to authorizing a gaming facility; providing generally therefor; stating legislative findings that such a gaming facility is important to the tourism industry and that the limited authorized games of chance are not lotteries or gift enterprises; defining certain terms; declaring gaming and wagering legal when conducted under terms specified in article; stating that article does not apply to racing, lottery or activities regulated by article twenty, chapter forty-seven of this code; establishing limited gaming oversight division within the department of tax and revenue and providing generally therefor; providing for the adoption of rules and requiring certain rules; providing for the coordination and cost of law-enforcement activities; extending jurisdiction of local law enforcement in stated circumstances; requiring local approval of the gaming facility; providing generally for license to operate a gaming facility; stating qualifications and requirements for a gaming facility license; itemizing areas for division to consider in granting license; requiring licensee to execute surety bond and providing generally therefor; stating authorization of license and prohibiting transfer, assignment, sale or pledge as collateral; requiring audits and inventories; requiring licensee's annual reports and itemizing various inclusions; requiring license for supplier of gaming facility and providing generally therefor, including investigation requirement; requiring license for gaming device operator and providing generally therefor, including background information and investigation requirement; requiring license for gaming facility employees and providing generally therefor, including background information and investigation requirement; setting forth annual license fee for all licenses; providing that all licensees consent to warrantless searches of person, personal property and certain premises under control of licensee; setting forth additional license requirements and prohibitions; describing license and requiring display thereof; providing for expiration and renewal every five years; stating renewal fee for all licenses; providing for license denial revocation and reprimand subsequent to hearing thereon; creating implied consent of patrons to law enforcement presence; allowing gaming operators to set wagers; requiring use of licensed suppliers; imposing tax on adjusted gross receipts; providing generally for filing and payment of taxes; creating state gaming fund and municipalities revenue fund; providing for distribution of tax; prohibiting defrauding devices as itemized; setting forth prohibitions and requirements as to conduct of wagering; itemizing numerous misdemeanor and felony offenses and stating penalty for offense; authorizing for forfeiture of certain property; prohibiting participation in gaming by certain individuals under certain circumstances; and providing for civil penalties.

Be it enacted by the legislature of West Virginia:
That chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twenty-five, to read as follows:
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-1. Authorization of limited gaming facility; findings.
(a) Operation of authorized games of chance. -- Notwithstanding any provision of law to the contrary, the operation of those limited games of chance authorized by this article and the related operation of a gaming facility and ancillary activities is not unlawful when conducted under the terms specified in this article.
(b) Legislative findings. -- The Legislature finds and declares that the tourism industry plays a critical role in the economy of this state, and that a substantial state interest exists in protecting that industry; and, further, that the authorization of the operation of a gaming facility at one established historic resort hotel in this state as provided in this article will serve to protect and enhance the tourism industry, and indirectly other segments of the economy of this state, by providing a resort hotel amenity which is becoming increasingly important to many actual and potential resort hotel patrons.
The Legislature finds and declares that the operation of the authorized games of chance permitted by this article does not constitute the operation of lotteries or gift enterprises within the purview of section thirty-six, article VI of the constitution of this state.
§29-25-2. Scope of provisions.
This article does not apply to the pari-mutuel system of wagering under article twenty-three, chapter nineteen of this code; lottery or racetrack video lottery authorized under articles twenty-two and twenty-two-a of this chapter; or bingo, raffles or games of skill or chance authorized under articles twenty and twenty-one, chapter forty-seven of this code.
§29-25-3. Definitions.
As used in this article unless the context otherwise requires, the following words and phrases have the meanings indicated:
(a) "Adjusted gross receipts" mean the gross receipts of a gaming facility less winnings paid to wagerers.
(b) "Applicant" means any person applying for a license.
(c) "Authorized game of chance" includes baccarat, twenty-one (blackjack), poker, craps, roulette, wheel of fortune or any other similar Monte Carlo style table game expressly authorized by rule of the division, and expressly excludes slot machines, electronic terminal simulations of games of chance, punch board, faro, keno, numbers ticket, push card, jar ticket, pull tab or similar games.
(d) "Controlling interest" means:
(1) For a partnership, an interest as a general or limited partner;
(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 another person.
(f) "Division" means the limited gaming oversight division of the West Virginia department of tax and revenue created and authorized by this article.
(g) "Gaming devices and supplies" mean gaming tables for all authorized games of chance, roulette wheels, cards, dice, chips, tokens, markers or any other device, mechanism or equipment or related supplies utilized in the operation of an authorized game of chance.
(h) "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.
(IIi) "Gaming licensee" means the licensed operator of a gaming facility.
(j) "Gross receipts" mean the total amount of money exchanged for the purchase of chips, tokens, or electronic cards by patrons of a gaming facility.
(k) "Historic resort hotel" means a resort hotel registered by 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.
(l) "License" means a license issued by the division, 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.
(m) "Licensed gaming facility employee" means any individual licensed to be employed by a gaming licensee in connection with the operation of a gaming facility.
(n) "Licensed gaming facility supplier" means a person who is licensed by the division to engage in the business of supplying gaming devices and supplies to a gaming facility.
(o) "Licensee" means a gaming licensee, a licensed gaming facility supplier or a licensed gaming facility employee.
(p) "Person" means any natural person, corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.
(q) "State gaming fund" means the special fund in the state treasury created in section twenty-five of this article to which deposits and disbursements are made and from which the operating costs of the division will be disbursed and for other activities as specified pursuant to this article.
§29-25-4. Establishment of limited gaming oversight division.
There is hereby established within the department of tax and revenue a separate division to be known as the limited gaming oversight division which has the powers and duties specified in this article. Its jurisdiction extends to every person involved in the operations of a gaming facility in this state.
§29-25-5. Division duties and powers.
(a) Duties. -- In addition to the duties set forth elsewhere in this article, the division shall:
(1) Establish standards for gaming devices and supplies;
(2) Approve rules for all authorized games of chance proposed to be operated by a gaming licensee;
(3) Establish standards governing gaming facilities generally, including the maintenance of financial books and records;
(4) Provide staff to supervise, inspect and monitor the operation of any gaming facility, including inspection of gaming devices and supplies used in the operation to assure continuous compliance with all rules of the division and provisions of this article;
(5) Establish minimum levels of insurance to be maintained with respect to a gaming facility;
(6) Investigate applicants to determine eligibility for any license and, where appropriate, select among competing applicants;
(7) Designate appropriate classifications of personnel to be employed in the operation of a gaming facility and establish appropriate licensing standards within such classifications;
(8) Issue all licenses;
(9) Charge and collect the taxes and fees authorized, required or specified in this article and receive, accept and pay all taxes and fees collected under this article into the state gaming fund;
(10) Maintain a record of all licenses issued;
(11) Keep a public record of all division actions and proceedings; and
(12) File a written annual report to the governor, the president of the Senate and the speaker of the House of Delegates on or before the thirtieth day of January of each year and such additional reports as the governor or Legislature may request.
(b) Powers. -- In addition to the powers set forth elsewhere in this article, the division has the following powers:
(1) Sue to enforce any provision of this article by injunction;
(2) Hold hearings, administer oaths and issue subpoenas for the attendance of a witness to testify and to produce evidence;
(3) Enter a gaming facility at any time and without notice to ensure that the rules of the division are strictly complied with;
(4) For cause, bar any person from entering or participating in any capacity in the operation of a gaming facility; and
(5) Exercise any other powers as may be necessary to effectuate the provisions of this article.
§29-25-6. Appointment of division director; compensation.
(a) Appointment. -- There is hereby created the position of director of the division, whose duties include the management and administration of the division. The division director shall:
(1) Be appointed by the secretary of the West Virginia department of tax and revenue within sixty days after the effective date of this article;
(2) Serve at the pleasure of the governor;
(3) Be of good and honest repute and of sound integrity, and shall undergo a thorough background investigation prior to appointment, including fingerprinting and check of criminal records; and
(4) Neither directly nor indirectly, including through any spouse, child or parent, hold any position with or have any financial interest in any licensee.
(b) Compensation. -- The division director shall be paid a salary of forty-five thousand dollars as well as reimbursement for expenses in accordance with the code and state regulations relating to travel and expenses. All compensation of the division director shall be paid from the state gaming fund.
§29-25-7. Appointment of division staff; conditions of employment.
With the approval of the secretary of the West Virginia department of tax and revenue, the division director shall appoint such professional, clerical, technical and administrative personnel, who shall be state employees hired in accordance with article six, chapter twenty-nine of the code, as may be necessary to carry out the provisions of this article. Prior to his or her appointment, each staff person shall undergo a thorough background investigation, including fingerprinting and a check of criminal records. No employee may either directly or indirectly hold any financial interest in any person licensed under this article.
§29-25-8. Rules.
The division shall propose legislative rules in accordance with the provisions of chapter twenty-nine-a of this code as are necessary to provide for implementation and enforcement of the provisions of this article. Any rules proposed by the division before the first day of September, one thousand nine hundred ninety-seven, may be by emergency rule.
§29-25-9. Law enforcement.
(a) Generally. -- At the request of the division director, the law-enforcement officers of the state, any municipality located near the gaming facility and of the county shall provide assistance to the division to enforce the provisions of this article.
(b) Costs. -- The actual cost of services provided by law- enforcement officers of the state in connection with enforcement of the provisions of this article shall be paid from the state gaming fund, which cost shall include all costs of required training and equipment as well as salary, benefits and other direct costs of additional required personnel. The payments shall be made in accordance with established procedures for the transfer of funds to the appropriate fund of the state police.
The costs of services related to a gaming facility provided by law-enforcement officers of the county in which the gaming facility is located, which costs shall include all costs of required training and equipment as well as salary, benefits and other direct costs of additional personnel, shall be paid from that portion of the state gaming fund allocated to the county.
§29-25-10. Local option.
(a) No gaming facility may be licensed to operate in a county unless and until the county commission of the county holds an election on the question of whether a gaming facility may be operated within the county. The election shall be determined by a vote of the resident voters of the county in which the facility is proposed to be located.
Any local option election to approve or disapprove of the proposed authorization of a gaming facility within a county shall be in accordance with the procedures as may be adopted by the division. The local option election may be held in conjunction with a primary or general election, or at a special election. Approval shall be by a majority of the voters casting votes on the question of approval or disapproval of gaming facility operations at the election.
If a majority has voted "no", another election on the issue may not be held for a period of one hundred four weeks. If a majority has voted "yes" another local option election may not be held for a period of five years. A local option election may thereafter be held if a written petition of qualified voters residing within the county equal to at least five percent of the number of persons who were registered to vote in the next preceding general election is received by the county commission of the county in which the gaming facility is to be located. The petition may be in any number of counterparts. The aforesaid election shall take place at the next primary or general election which is scheduled to take place at least ninety days following receipt by the county commission of the petition required by this subsection: Provided, That no issue shall be placed on the ballot until all statutory notice requirements have been met: Provided, however, That no subsequent disapproval shall take effect until after the expiration of the five-year licensing period in effect at the time of the referendum.
(b) No local law or regulation providing any penalty, disability, restriction, regulation or prohibition for operating a gaming facility or supplying a gaming facility may be enacted, and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict herewith.
(c) Except as specifically provided in this article, no other fees or taxes may be imposed by a local governing body.
§29-25-11. Licenses required.
(a) A person may not engage in any activity in connection with a gaming facility in this state for which a license is required by subsection (b) of this section unless the person has been licensed by the division in accordance with this article.
(b) Licenses are required for the following purposes:
(1) For any person engaging in the business of operating a gaming facility in the state;
(2) For any person engaging in the business of supplying a gaming facility in the state if the business generates in excess of fifty thousand dollars annually;
(3) For any individual employed by a gaming licensee in connection with the operation of a gaming facility in the state.
(c) Any license required under this article shall be in addition to all other licenses or permits otherwise required by applicable law.
§29-25-12. License to operate a gaming facility.
(a) Single license. -- The division shall issue only one license to operate one gaming facility in the state.
(b) Applicant qualifications. -- An applicant must be the owner of an existing historic resort hotel in which the gaming facility is to be located, and the resort hotel must be located within the jurisdiction of a county approving the operation of a gaming facility in accordance with section ten of this article. Each applicant shall meet the qualifications and requirements set forth in this article and in rules adopted by the division. In determining whether to grant a license to operate a gaming facility to an applicant, the division shall consider:
(1) The character, reputation, experience and financial integrity of the applicant and any controlling person of the applicant;
(2) Whether the applicant has adequate capital to construct and maintain the proposed gaming facility for the duration of a license;
(3) The extent to which the applicant meets standards contained in rules adopted by the division relating to public safety or other standards; and
(4) The plan submitted by the applicant regarding employment levels and the extent to which the submitted plan demonstrates an ability on the part of the applicant to convert at least one hundred twenty part-time jobs into full-time jobs and an ability to create seventy new jobs at the historic resort hotel all with a salary and benefit package averaging at least twenty-six thousand dollars annually.
(c) Conditions attached to license. -- A license to operate a gaming facility may only be granted to an applicant upon the express condition that:
(1) The licensee may not enter into any management contract, understanding or arrangement of any kind which would act to permit any person other than the licensee to operate a licensed gaming facility unless the management contract, understanding or arrangement is in writing and has been approved by the division, which approval may be conditioned upon successful completion of a thorough background investigation at the expense of the licensee; and
(2) The licensee may not in any manner permit a person other than the licensee to have a share, percentage or proportion of the net profits generated from the operation of a gaming facility.
(d) License application requirements. -- An applicant for a license to operate a gaming facility shall:
(1) Submit an application to the division on a form prescribed by the division, which form shall include:
(A) Information concerning the applicant and of any controlling person of the applicant sufficient to serve as a basis for a thorough background check;
(B) Subject to the provisions of subsection (e) of this section with respect to publicly traded corporations, the identity of all stockholders or other persons having a financial interest in either the applicant or any controlling person of the applicant and the identity of each director or executive officer of the applicant and of any controlling person of the applicant;
(C) The identity of the historic resort hotel at which the gaming facility is to be located, including identification of the county in which the historic resort hotel is located; and
(D) Any other information designated by the division as appropriate to assist it in determining whether a license should be issued;
(2) Pay to the division a nonrefundable application fee for deposit into the state gaming fund in the amount of fifty thousand dollars;
(3) Pay to the division an investigative fee for deposit in the state gaming fund in the amount of twenty thousand dollars.
(e) Publicly traded corporations. -- In the event that an applicant or any controlling person of an applicant is a publicly traded corporation, then information otherwise required to be furnished by an applicant with respect to stockholders, directors and executive officers of the publicly traded corporation shall be limited to the information concerning only those executive officers of the publicly traded corporation whose ongoing and regular responsibilities relate or are expected to relate directly to the operation or oversight of the gaming facility. "Publicly traded corporation" as used herein means any corporation or other legal entity except a natural person which has one or more classes of securities registered pursuant to section twelve of the Securities Exchange Act of 1934, as amended (15 U.S.C. §78), or is an issuer subject to section fifteen-d of the act.
(f) Gaming facility qualifications. -- An applicant for the license to operate a gaming facility must demonstrate that the gaming facility will: (1) Be accessible to disabled individuals; (2) not constitute the main entrance to the historic resort hotel; (3) be licensed in accordance with all other applicable federal, state and local laws; and (4) meet any other qualifications specified by rules adopted by the division.
(g) Investigative fee. -- The investigative fee paid by an applicant at the time of submitting an application shall be applied to the cost of any investigation relating to the applicant required under this article.
(1) If the cost of the investigation is greater than twenty thousand dollars, the investigative agency shall show cause for the additional cost. The applicant shall be required to pay the additional costs to the extent approved by the division, but not to exceed a total investigative fee of eighty thousand dollars;
(2) If the cost of the investigation is less than the aggregate investigative fee paid by an applicant, the division shall refund the difference.
(h) Surety bond requirement. -- The licensed operator of a gaming facility shall execute a surety bond to be given to the state to guarantee the licensee faithfully makes the payments, keeps books and records, makes reports and conducts gaming in the licensee's gaming facility in accordance with this article and pursuant to rules adopted by the division. The surety bond shall be:
(1) In the amount of five million dollars;
(2) In a form approved by the division; and
(3) With a surety approved by the division.
The bond must remain in effect during the term of the license, and may not be canceled by a surety on less than thirty days notice in writing to the division. The total and aggregate liability of the surety on the bond is limited to the amount specified in the bond.
(i) Authorization of license. -- The license to operate a gaming facility authorizes the licensee to engage in the business of operating a gaming facility while the license is effective. Without prior authorization by the division, the license to operate a gaming facility is not transferable or assignable and cannot be sold or pledged as collateral.
(j) Audits. -- The licensed gaming facility operator shall submit to the division an annual audit, by a certified public accountant licensed in the state of West Virginia, of the financial transactions and condition of the licensee's total operations. The audit shall be in accordance with generally accepted auditing principles.
(k) Annual license maintenance fee. -- The licensed gaming facility operator shall pay to the division an annual license maintenance fee of five thousand dollars.
§29-25-13. Reports by licensee.
(a) The gaming licensee shall file an annual balance sheet and profit and loss statement pertaining to the licensee's operation of a gaming facility in this state. The gaming licensee also shall file an annual statement identifying each controlling person of the licensee and all stockholders, partners, officers or directors for the licensee and any controlling person: Provided, That if the gaming licensee or controlling person is a publicly traded corporation, then as to the publicly traded corporation the annual report shall be required to identify only executive officers whose ongoing regular duties relate directly to the operation of the gaming facility. The gaming licensee shall file further reports with the division as the division may require by rule.
(b) The gaming licensee shall maintain daily records showing the following:
(1) The total number of patrons of the gaming facility; and
(2) The gross receipts and the adjusted gross receipts.
§29-25-14. License to supply gaming facility.
(a) Licenses. -- The division shall issue a license to each applicant for a license to supply a gaming facility who meets the requirements of this section.
(b) License qualifications. -- To qualify for a license, an applicant shall meet the requirements of this section. Each applicant who is an individual and each individual who is a controlling person of an applicant that is not an individual shall be of good moral character and reputation, and shall have the necessary experience and financial ability to successfully carry out the functions of a gaming facility supplier. The division may adopt rules establishing additional requirements for a gaming facility supplier.
(c) Supplier specifications. -- An applicant for a license to supply gaming devices, equipment and supplies to a gaming facility shall demonstrate that the gaming devices, equipment and supplies that the applicant plans to sell or lease to the licensed operator of the gaming facility, conform or will conform to standards established by rules of the division and applicable state law.
(d) License application requirements. -- An applicant for a license shall:
(1) Submit an application to the division on the form that the division requires;
(2) Pay to the division a nonrefundable application fee for deposit into the state gaming fund in the amount of five thousand dollars; and
(3) Pay to the division an investigative fee for deposit into the state gaming fund in the amount of ten thousand dollars, or a lesser amount as the division upon application may conditionally approve in a particular case.
(e) Investigative fee. -- The investigative fee paid by an applicant for a license to supply a gaming facility shall be applied to the cost of any investigation of the applicant required under this article.
(1) If the costs of the investigation of an applicant are greater than ten thousand dollars, or a lesser investigative fee as may have been conditionally approved by the division, the investigative agency shall show cause for the additional cost. If the division approves, the applicant shall pay the additional costs as required by the division, but not to exceed a total investigative fee of fifty thousand dollars.
(2) If the costs of the investigation of an applicant are less than the aggregate investigative fee paid to the division, the division shall refund the difference.
(f) Authorization of licensee. -- A license to supply a gaming facility authorizes the licensee to engage in the business of selling gaming devices and supplies to a gaming facility while the license is effective.
(g) Inventory. -- A licensed gaming facility supplier shall submit a list of all equipment, gaming devices and supplies sold or delivered to a gaming facility in this state.
(h) Annual license maintenance fee. -- A licensed gaming facility supplier shall pay to the division an annual license maintenance fee of five thousand dollars.
§29-25-15. License to be employed by operator of gaming facility.
(a) Licenses. -- The division shall issue a license to each applicant for a license to be employed in the operation of the gaming facility who meets the requirements of this section.
(b) License qualifications. -- To qualify for a license to be employed in the gaming facility, the applicant must be an individual of good moral character and reputation. The division by rule may specify additional requirements to be met by applicants based on the specific job classifications in which the applicant is to be employed.
(c) License application requirements. -- An applicant for a license to be employed in the operation of the gaming facility shall:
(1) Submit an application to the division on the form that the division requires, including adequate information to serve as a basis for a thorough background check;
(2) Pay to the division a nonrefundable application fee for deposit into the state gaming fund in the amount of three hundred dollars, which fee may be paid on behalf of the applicant by the employer; and
(3) Pay to the division a nonrefundable investigative fee for deposit into the state gaming division in an amount to be fixed by the division by rule, which fee may be paid on behalf of the applicant by the employer.
(d) Authorization of licensee. -- A license to be employed by a gaming facility authorizes the licensee to be so employed in the capacity designated by the division with respect to the license while the license is effective.
(e) Annual license maintenance fee. -- Each licensed employee shall pay to the division an annual license maintenance fee set by the division, which maintenance fee may vary based on the capacity designated with respect to the licensee but in no event to exceed three hundred dollars.
§29-25-16. False statements on applications; other license requirements and prohibitions.
(a) Any person who knowingly makes a false statement on an application is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than five hundred dollars, or confined in the county or regional jail not less than six months, or both fined and confined.
(b) A license may not be granted if there is substantial evidence that the applicant for a license:
(1) Has knowingly made a false statement of a material fact to the division;
(2) Has been suspended from operating a gambling game, gaming device or gambling operation in another jurisdiction by a division, board or other governmental authority of that jurisdiction having responsibility for the regulation of gambling or gaming activities;
(3) Has been convicted of a felony or other crime involving moral turpitude or has otherwise demonstrated either by a police record or other satisfactory evidence a lack of respect for law and order;
(4) Has failed to meet any monetary obligation in connection with a gaming facility or any other form of gaming; or
(5) In the case of an applicant for a license to operate a gaming facility or to supply a gaming facility:
(A) Has not demonstrated financial responsibility sufficient to meet adequately the requirements of the enterprise proposed;
(B) Is not the true owner of the enterprise or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in the enterprise; or
(C) Is a corporation and five percent or more of the stock of the corporation is subject to a contract or option to purchase at any time during the period for which the license is issued unless the contract or option was disclosed to and approved by the division.
(c) In addition to any other grounds specified in this article, and subject to the hearing provisions of section twenty of this article, in the case of a license to operate a gaming facility the division may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee or any controlling person of the applicant or licensee knowingly employs an individual in a senior management position who has been convicted of a felony under the laws of this state, another state, a territory of the United States, or the United States or employs any individual in a senior management position who has had a license relating to the operation of a gaming facility revoked by this state or any other state.
(d) Character references may be required of persons licensed, but the character references may not be obtained from persons in the same or similar occupations or professions in other states.
§29-25-17. Licenses; availability for inspection; change of address.
(a) The division shall include on each license that the division issues:
(1) The type of license;
(2) The identity and address of the licensee;
(3) The effective date of the license; and
(4) Any other information the division deems appropriate.
(b) The gaming licensee or each licensed supplier of the gaming facility shall display the license conspicuously in its place of business or have the license readily available for inspection at the request of any agent of the division or of the state police. Each holder of a license to be employed by the gaming facility shall carry the license on his or her person at all times when present in the gaming facility and, if required by rules adopted by the division with respect to the particular capacity in which the licensee is employed, have some indicia of licensure prominently displayed on his or her person.
(c) Each licensee shall give the division written notice of any change of address, and any other relevant information necessary for the maintenance of accurate records by the division.
§29-25-18. Expiration date and renewal.
(a) A license expires on the fifth anniversary of its effective date, unless the license is renewed for additional five-year terms as provided in this section.
(b) At least two months before a license expires, the division shall send to the licensee, by mail to the last known address, a renewal application form and notice that states:
(1) The date on which the current license expires;
(2) The date by which the division must receive the renewal application for the renewal to be issued and mailed before the existing license expires; and
(3) The amount of the renewal fee.
(c) Before the license expires the licensee may renew it for successive additional five-year terms if the licensee:
(1) Otherwise is entitled to be licensed;
(2) Pays to the director the following renewal fee:
(A) The sum of twenty-five thousand dollars for a license to operate a gaming facility;
(B) The sum of five thousand dollars for a license to supply a gaming facility; and
(C) As set by the division by rule in the case of a license to be employed by an operator of a gaming facility, not to exceed three hundred dollars, which renewal fee may be paid on behalf of the licensee by the employer; and
(3) Submits to the division a renewal application in the form that the division requires accompanied by satisfactory evidence of compliance with any additional requirements set by rules of the division for license renewal.
(d) The division shall renew the license of each licensee who meets the requirements of this section.
§29-25-19. License denial, revocation and reprimand.
(a) The division may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee, or any controlling person of the applicant or license:
(1) Fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another;
(2) Fraudulently or deceptively uses a license; or
(3) Is convicted of a felony under the laws of this state, another state, a territory of the United States or the United States.
(b) Instead of or in addition to reprimanding a licensee or suspending or revoking a license, the division may impose a civil penalty under section twenty-nine of this article.
§29-25-20. Hearing procedures.
Except as otherwise provided by law, before the division takes any action under the provisions of section nineteen of this article, it shall give the persons against whom the action is contemplated an opportunity for a hearing before the division.
The division shall give notice and hold the hearing in accordance with state law, the notice to be given to the person by certified mail to the last known address of the person at least thirty days before the hearing. The person may be represented at the hearing by counsel.
If a person fails to comply with a subpoena issued under this section, on petition of the division, the circuit court may compel obedience to the subpoena. If after due notice the person against whom the action is contemplated fails or refuses to appear, the division may hear and determine the matter.
Any person aggrieved by a final decision of the division in a contested case, as defined in chapter twenty-nine-a of this code, may take an appeal as allowed in that chapter.
§29-25-21. Consent to warrantless search.
As a condition of licensure and notwithstanding the separate licensure of the facility as a private club pursuant to article seven, chapter sixty of this code, any licensee shall consent to any search without a warrant by agents of the division or of the state police designated by the division director of the licensee's person, personal property and effects, and premises which are located in the gaming facility or adjacent facilities under the control of the licensee, to inspect or investigate for criminal violations of this article or violations of rules adopted by the division.
§29-25-22. Consent to presence of law-enforcement officers; wagering limits.
(a) Consent to presence of law-enforcement officers. -- Any individual entering a gaming facility shall be advised by the posting of a notice or other suitable means of the possible presence of state, county or municipal law-enforcement officers, and by entering the gaming facility impliedly consents to the presence of the law-enforcement officers.
(b) Setting of wagering limits. -- The operator of a gaming facility may set minimum and maximum wagers for any authorized game of chance.
§29-25-23. Taxes.
(a) Imposition and rate. -- There is hereby levied and shall be collected annual privilege tax against a gaming licensee in an amount to be determined by application of the rate against adjusted gross receipts of the licensed gaming facility. The rate of tax is seventeen percent. This tax shall be in addition to all other taxes and fees imposed: Provided, That the consumer sales tax imposed pursuant to article fifteen, chapter eleven of this code shall not apply to the proceeds from any wagering with respect to games of chance authorized by this article.
(b) Computation and payment of tax. -- The taxes levied under the provisions of this section shall be due and payable in monthly installments on or before the twenty-first day of the month following the month in which the tax is accrued. The taxpayer shall, on or before the twenty-first day of each month make out and mail to the limited gaming oversight division a return for the preceding month, in the form prescribed by the tax commissioner, showing: (1) The total gross receipts from the gaming facility for that month and the adjusted gross receipts; (2) the amount of tax for which the taxpayer is liable; and (3) any further information necessary in the computation and collection of the tax which the tax commissioner or the division may require. Payment of the amount of tax due shall accompany the return. All payments made pursuant to this section shall be deposited in the state gaming fund.
(c) Tax procedures. -- Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven of this code shall apply to the tax imposed by this section with like effect as if the act were applicable only to the tax imposed by this section and were set forth in extenso in this section.
(d) Prohibition on credits. -- Notwithstanding any other provision of this code to the contrary, no credits may be allowed against any tax imposed on any taxpayer by this code for an investment in gaming devices and supplies, for an investment in real property which would be directly utilized for the operation of a gaming facility or for any jobs created at a gaming facility.
§29-25-24. State gaming fund; allocation of adjusted gross receipts.
(a) There is hereby created a special fund in the state treasury which shall be designated and known as the "state gaming fund." All revenues received from licenses and applications under this article and all tax revenues from the tax imposed under section twenty-three of this article shall be deposited with the state treasurer and placed in the state gaming fund. After payments are made pursuant to subsections (b) and (c) of this section, expenditures from the fund shall only be authorized upon appropriation by the Legislature. The revenue shall be disbursed in the manner herein provided for the purpose stated herein and may not be treated by the auditor and treasurer as part of the general revenue of the state. The fund shall be an interest bearing account with interest to be credited to and deposited in the state gaming fund.
(b) An amount equal to three and one-half percent of the adjusted gross receipts of the gaming facility shall be paid to the county wherein the gaming facility is located, to be allocated by the county commission of the county. At least fifty percent of this amount shall be used for improvement to county infrastructure.
(c) An amount equal to two percent of the adjusted gross receipts of the gaming facility shall be transferred from the state gaming fund to the treasurer for deposit in the "municipalities revenue fund" which is hereby created in the state treasury and shall be distributed quarterly among all the municipalities in the county wherein the gaming facility is located in the manner provided in this subsection. Each municipality is entitled to an amount determined by multiplying the total of the "municipalities revenue fund" by a fraction, the numerator of which is the total population of the municipality and the denominator of which is the population of all municipalities within the county. After determining the amount on a quarterly basis, a warrant of the state auditor for the sum due to the municipality shall issue and a check drawn thereon making payment of the sum shall thereafter be distributed to the municipality. Moneys distributed to any municipality under the provisions of this subsection shall be deposited in the municipality's general fund and may be expended by the governing body of the municipality for purposes as the governing body shall determine to be in the best interest of the municipality and as otherwise provided by law.
(d) All expenses of the division shall be paid from the state gaming fund, including reimbursement of the state police for activities performed at the request of the division in connection with background investigations or enforcement activities pursuant to this article. At no time may the division expenses exceed fifteen percent of the total of the annual revenue received from the licensee under this article, including all license fees, taxes or other amounts required to be deposited in the state gaming fund.
(e) The balance of the state gaming fund shall be allocated in a manner as may be determined from time to time by the Legislature for the same purposes as authorized for expenditure of lottery funds as established in section eighteen, article twenty-two of this chapter or for the purpose of reducing any unfunded liability in any state retirement system.
§29-25-25. Prohibition on unauthorized wagering.
(a) A gaming licensee may not permit any form of wagering except as authorized under this article.
(b) A gaming licensee shall receive wagers only from an individual present in the licensed gaming facility.
(c) All gaming facility operations shall utilize a cashless wagering system whereby all players' money is converted to tokens, electronic cards or chips at the request of the wagerer which can only be used for wagering in the licensed gaming facility, and wagering may not be conducted with money or other negotiable currency.
(d) The gaming licensee may not loan to any person money or any other thing of value for the purpose of permitting that person to participate in any authorized game of chance.
(e) The gaming licensee is prohibited from offering any property or service, other than incidental food and beverages, to any person as an inducement to participate in a game of chance. This prohibition includes the offering of complimentary rooms in exchange for a guest participating in any game of chance at the gaming facility.
§29-25-26. Individual gaming restrictions.
An individual may not enter the gaming facility or remain in the gaming facility to participate in authorized games of chance in a gaming facility:
(a) If the individual is not a registered overnight guest in the historic resort hotel on whose premises the gaming facility is located;
(b) If the individual is under the age of twenty-one years;
(c) If the individual is intoxicated;
(d) If the individual is determined by the gaming facility operator or the division to be unruly, disruptive or otherwise interfering with operation of the gaming facility; or to be likely to commit, or to attempt to commit, a violation of this article; or
(e) The individual has been barred by the division from entering a gaming facility.
§29-25-27. Offenses and penalties.
(a) A gaming licensee is guilty of unlawful operation of a game of chance when:
(1) The licensee operates a game of chance in any location other than a gaming facility;
(2) The licensee acts, or employs another person to act, as a shill or decoy to encourage participation in a game of chance in a gaming facility;
(3) The licensee knowingly permits an individual under the age of twenty-one years of age to enter or remain in a gaming facility for the purpose of making a wager; or
(4) The licensee exchanges tokens, chips or other forms of credit to be used for wagering in a gaming facility for anything of value except in exchange for money.
(b) A person is guilty of felonious wager when:
(1) The person offers, promises or gives anything of value or benefit to a person who is connected with a gaming facility, pursuant to an agreement or arrangement or with intent that the promise or thing of value or benefit will influence the actions of the person to whom the offer, promise, or gift was made in order to affect or attempt to affect the outcome of an authorized game of chance, or to influence official action of the division. For the purposes of this subdivision and subdivision (2) of this subsection, the term "person who is connected with a gaming facility" includes, but not limited to, an officer or employee of a licensee;
(2) The person solicits or knowingly accepts or receives a promise of anything of value or benefit while the person is connected with a gaming facility, pursuant to an understanding or arrangement or with the intent that the promise or thing of value or benefit will influence the actions of the person to affect or attempt to affect the outcome of an authorized game of chance, or to influence official action of the division;
(3) The person uses or possesses with the intent to use a device to assist:
(A) In projecting the outcome of an authorized game of chance;
(B) In keeping track of cards played or in play;
(C) In analyzing the probability of the occurrence of an event relating to an authorized game of chance; or
(D) In analyzing the strategy for playing or betting to be used in an authorized game of chance, except as permitted by the division;
(4) The person cheats at an authorized game of chance in a gaming facility;
(5) The person manufactures, sells, or distributes any cards, chips, dice, game or device which is intended to be used to violate any provision of this article;
(6) The person instructs a person in cheating or in the use of a device for that purpose with the knowledge or intent that the information or use conveyed may be employed to violate any provision of this article;
(7) The person places a bet after acquiring knowledge, not available to all players, of the outcome of the game of chance which is subject of the bet, or aids a person in acquiring the knowledge for the purpose of placing a bet contingent on that outcome;
(8) The person claims, collects, takes, or attempts to claim, collect or take, money or anything of value into or from a gaming facility, with intent to defraud, without having made a wager contingent on winning a game of chance, or claims, collects, or takes an amount of money or thing of value of greater value than the amount won;
(9) The person uses counterfeit chips or tokens to place a wager in a gaming facility;
(10) The person knowingly uses any medium other than chips, tokens or other methods of credit approved by the division to place a wager in a gaming facility;
(11) The person, not a gaming licensee or employee or agent of a gaming licensee acting in furtherance of the gaming licensee's interests, has in his or her possession any device intended to be used to violate a provision of this article; or
(12) The person, not a gaming licensee or agent of a gaming licensee acting in furtherance of the gaming licensee's interests, has in his or her possession any key or device designed for the purpose of opening, entering, or affecting the operation of an authorized game of chance, drop box, or an electronic or mechanical device connected with or used in connection with an authorized game of chance in a gaming facility or for removing coins, tokens, chips or other contents therefrom.
(c) Any person who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in a county or regional jail for not more than six months.
(d) Any person who violates the provisions of subsection (b) of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than ten thousand dollars and committed to the department of corrections of a definite term of imprisonment of not less than one year nor more than five years.
§29-25-28. Forfeiture of property.
(a) Anything of value, including all traceable proceeds including, but not limited to, real and personal property, moneys, negotiable instruments, securities and conveyances, is subject to forfeiture to the state of West Virginia if the item was used for any of the following:
(1) As a bribe intended to affect the outcome of an authorized game of chance in a gaming facility; or
(2) In exchange for or to facilitate a violation of this article.
(b) Subsection (a) of this section does not apply if the act or omission which would give rise to the forfeiture was committed or omitted without knowledge or consent of the owner of the property to be forfeited.
§29-25-29. Civil penalties.
The division may impose on a person who violates a provision of this article a civil penalty not to exceed five thousand dollars for each violation, whether or not the person is licensed under this article.