COMMITTEE SUBSTITUTE
FOR
H. B. 4337
(By Mr. Speaker, Mr. Kiss, and Delegates Michael,
Mezzatesta, Williams, Givens, Willison and Beane)
(Originating in the House Committee on Finance)
[February 18, 1998]
A BILL to repeal section thirteen, article twenty, chapter forty- seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections two, three, four, five, six, six-a, seven, nine,
ten, eleven, twelve, twelve-a, fifteen, sixteen, seventeen,
twenty, twenty-two, twenty-three, twenty-four, twenty- eight, and thirty of said article; to amend and reenact
sections two, three, four, five, eight, twelve, thirteen,
fifteen, sixteen, twenty-one, twenty-two, and twenty-six,
article twenty-one of said chapter; and to amend and reenact
sections two and three, article twenty-three of said
chapter, all relating to charitable bingo and charitable
raffles; conducting bingo and raffles; providing for
electronic bingo and raffle devices; definitions; expanding
the definition of charitable or public service organizations
and providing tax exempt status for such; expanding the
purposes for which proceeds may be expended; expanding
allowable proceeds and prize awards; requirements for application, issuance and renewal of licenses; expanding
sessions and providing for rescheduling; creating the West
Virginia seniors, veterans and public service enrichment
fund; establishing recipients and purpose of the fund;
compensation of operators; records; advertising; financial
reports; legislative rules; and violation and penalties.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article twenty, chapter forty-seven
of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be repealed; that sections two, three, four,
five, six, six-a, seven, nine, ten, eleven, twelve, twelve-a,
fifteen, sixteen, seventeen, twenty, twenty-two, twenty-three,
twenty-four, twenty-eight and thirty of said article be amended
and reenacted; that sections two, three, four, five, eight,
twelve, thirteen, fifteen, sixteen, twenty-one, twenty-two, and
twenty-six, article twenty-one of said chapter be amended and
reenacted; and that sections two and three, article twenty-three
of said chapter be amended and reenacted, all to read as follows:
ARTICLE 20. CHARITABLE BINGO.
§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 paper or electronic
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 or electronic
device which they are using. The player who first announces that
he or she has covered a predetermined sequence or pattern or
electronic sequence 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 or
indirectly benefits a number of people or communities 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 and includes any organization or association
described in subsection 501(c)(2), 501(c)(3), 501(c)(4),
501(c)(8), 501(c)(10), 501(c)(19) or
501(c)(23)
of the Internal
Revenue Code of 1986, as amended. Charitable or public service
organization 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 Any such charitable or public service 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 section 501(a) and described in
subsection 501(c)(2), 501(c)(3), 501(c)(4),
501(c)(8),
501(c)(10), 501(c)(19) or
501(c)(23)
or section or 501(d) of the Internal Revenue Code.
(e) "Commissioner" means the state tax commissioner.
(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 section twelve-a, 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) (f) "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) (g) "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) (h) "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 may not be
considered to include any moneys collected or received from the
sale of concessions food, beverages, tobacco products, newspapers
or souvenirs at bingo occasions.
(j) (i) "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) (j) "Licensee" means any organization or association
granted an annual, limited occasion or state fair bingo license
pursuant to the provisions of this article.
(l) (k) "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 may not be considered to include
moneys collected or received from the sale of concessions food,
beverages, tobacco products, newspapers or souvenirs at bingo
occasions.
(m) (l) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership or
other nongovernmental entity or institution.
(n) (m) "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) (n) "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) (o) "Venue" means the location in which bingo occasions
are held.
§47-20-3. Who may hold bingo games; application for license;
licenses not transferable.
Any charitable or public service organization which has been
in existence in this state two years one year prior to filing an
application for a bingo license issued pursuant to section four
or five of this article may hold bingo occasions in accordance
with the provisions of this article during the time it holds a
valid license.
Application for a bingo license shall be made to the tax
commissioner and shall be on a form which shall be supplied by
him or her. The application shall contain the information
required by section seven of this article and any other
information which the commissioner considers necessary. An
application shall be filed not less than sixty days before the
date when the applicant intends to hold its first bingo occasion. Except as otherwise provided in this section, no bingo
occasion may be held until an application filed in accordance
with this article has been approved by the tax commissioner, and
the bingo license has been received. After a successful
background check has been completed on the applicant, the
commissioner shall issue the bingo license, and shall issue any
bingo license renewal automatically: Provided, That the
commissioner is not required to automatically renew the bingo
license of any licensee that was not in good standing or who
violated any provision of this article at any time during the
previous licensing period. Provided, That under no circumstances
may a licensee organization conduct a bingo occasion before the
sixty day filing period between the filing of the application and
date of the first bingo occasion has elapsed: Provided, however,
That the date the application is received by the tax commissioner
shall begin the sixty day filing period. The tax commissioner
shall send the applicant its license within five days after
approval of the bingo application. A licensee may begin holding
bingo occasions immediately upon receipt of the bingo license.
The commissioner shall send notification to the applicant within
five days after denial of the bingo application. If the filing
period has elapsed, and the If after sixty days the application
has not been denied by the tax commissioner, and the license has
not been received by the applicant, the applicant may consider
the application approved and begin to hold bingo occasions. The
tax commissioner shall send a bingo license to the applicant within five days after the expiration of the filing period if the
application has not been otherwise denied.
No bingo license issued pursuant to this article may be
transferred.
§47-20-4. Annual license; conditions on holding of games.
A charitable or public service organization or any of its
auxiliaries or other organizations otherwise affiliated with it
may apply for an annual license. Only one license per year in
the aggregate may be granted to a charitable or public service
organization and all of its auxiliaries or other associations or
organizations otherwise affiliated with it: Provided, That for
purposes of this section the various branches, chapters or lodges
of any national association or organization or local churches of
a nationally organized church are not considered affiliates or
auxiliaries of each other. The commissioner shall by regulation
rule provide for the manner for determining to which
organization, whether the parent organization, an affiliate or an
auxiliary, the one license allowed under this section is granted.
An annual license is valid for one the calendar year from the
date of issuance and entitles only the licensee to hold no more
than two one hundred four bingo occasions per week year. No two
or more organizations may hold a joint bingo occasion under any
annual licenses. No bingo occasion held pursuant to an annual
license may exceed six hours duration.
A licensee shall display its annual bingo license
conspicuously at the location where the bingo occasion is held.
All bingo occasions shall be open to the general public:
Provided, That no licensee shall may permit or allow any
individual under the age of eighteen to participate in the
playing of any bingo game with knowledge or reason to believe
that the individual is under the age of eighteen: Provided,
however, That an individual under the age of eighteen may attend
the playing of a bingo game when accompanied by and under the
supervision of an his or her adult relative or a legal guardian:
of said individual Provided further, That nothing contained
herein may be construed to prohibit junior volunteer firefighters
sixteen years of age or older from assisting the volunteer fire
company of which such the junior firefighter is a member in the
conduct of an event under this article where such the junior
firefighter is supervised by a senior member of the same
volunteer fire company who is over the age of twenty-one years.
Any licensee may receive and cash personal checks in an
amount not to exceed one hundred dollars during the normal
operation of a bingo game.
§47-20-5. Limited occasion license; conditions on holding of
games.
A limited occasion license is valid only for the time period
specified in the application and entitles only the licensee to
hold a bingo occasion once every twenty-four hours for a time
period not to exceed two weeks. Two or more organizations may
hold a joint bingo occasion provided each participating
organization has been granted a limited occasion bingo license for such the jointly held occasion. No bingo occasion held
pursuant to a limited occasion license may exceed twelve hours in
duration. Each charitable or public service organization which
desires to hold bingo occasions pursuant to this section, or any
of its auxiliaries or other organizations otherwise affiliated
with it, shall obtain a limited occasion license notwithstanding
the fact that it holds a valid annual license: Provided, That no
licensee which holds an annual license may obtain more than one
limited occasion license.
Only three limited occasion licenses per year in the
aggregate may be granted to a charitable or public service
organization and all of its auxiliaries or other associations or
organizations otherwise affiliated with it, none of which hold an
annual license. For purposes of this section, the various
branches, chapters or lodges of any national association or
organization or local churches of a nationally organized church
are not considered affiliates or auxiliaries of each other. The
commissioner shall by regulation rule provide the manner for
determining to which organization, whether the parent
organization, an affiliate or an auxiliary, the three licenses
allowed under this section are granted.
A licensee shall display its limited occasion license
conspicuously at the location where the bingo occasion is held.
All bingo occasions shall be open to the general public:
Provided, That no licensee shall may permit or allow any
individual under the age of eighteen to participate in the playing of any bingo game with knowledge or reason to believe
that the individual is under the age of eighteen: Provided,
however, That an individual under the age of eighteen may attend
the playing of a bingo game when accompanied by and under the
supervision of an adult relative or a legal guardian of said the
individual.
§47-20-6. License fee and exemption from taxes.
(a) A license fee shall be paid to the tax commissioner for
annual licenses in the amount of five hundred dollars, except
that for volunteer or nonprofit groups who gross less than twenty
thousand dollars the fee shall be two hundred dollars and for
bona fide senior citizen organizations the fee is fifty dollars.
A license fee shall be paid to the tax commissioner for a limited
occasion license in the amount of one hundred dollars. A license
fee of five hundred dollars shall be paid to the tax commissioner
for a state fair license as provided in section twenty-two of
this article. All revenue from said the license fee shall be
deposited in the special revenue account established under the
authority of section two-a, article nine, chapter eleven of this
code and used to support the investigatory activities provided
for in said section. The license fee imposed by this section is
in lieu of all other license or franchise taxes or fees of this
state and no county or municipality or other political
subdivision of this state is empowered to impose a license or
franchise tax or fee.
(b) The gross proceeds derived from the conduct of a bingo occasion are exempt from state and local business and occupation
taxes, income taxes, excise taxes and all special taxes. The
licensee is exempt from payment of consumers sales and service
taxes and use taxes on all purchases for use or consumption in
the conduct of a bingo occasion and is exempt from collecting
consumers sales taxes on any admission fees and sales of bingo
cards: Provided, That the exemption provided in this subsection
does not apply to state fair bingo proceeds.
§47-20-6a. Super bingo license.
Any charitable or public service organization may, upon
payment of a five thousand dollar license fee, apply to the tax
commissioner for issuance of an annual super bingo license. All
revenue from the license fee shall be deposited in the special
revenue account established under the authority of section two-a,
article nine, chapter eleven of this code and used to support the
investigatory activities provided for in that section. The tax
commissioner shall promulgate legislative rules in accordance
with article three, chapter twenty-nine-a of this code specifying
those organizations which qualify as charitable or public service
organizations.
A holder of a super bingo license may conduct one two super
bingo occasion each occasions per month during the period of the
license. at which up to fifty thousand dollars in prizes may be
awarded, notwithstanding the ten thousand dollar limitation on
prizes specified in section ten of this article.
A charitable or public service organization that has a regular or limited occasion bingo license may apply for a super
bingo license.
§47-20-7. Information required in application.
An application for a bingo license shall include the
following information:
(a) Name of the applicant and name and headquarter's address
of any state or national organization of which it is a local
branch or lodge;
(b) The address and telephone number of the applicant
organization, if any. If the applicant organization has no
telephone, then the address and telephone number of the person
applying on behalf of such the organization shall be supplied;
(c) For a limited occasion license, the names and addresses
of two or more bona fide active members of the applicant
organization who are charged with overall responsibility for the
applicant's bingo operations, at least one of whom shall be
present at all times bingo is conducted. and the names and
addresses of the highest elected officer of the licensee and his
officially appointed designee; one of whom shall be present at
all times bingo is conducted For an annual license, the names,
addresses and telephone numbers of three or more bona fide active
members of the applicant organization who are charged with
overall responsibility for the applicant's bingo operations, at
least one of whom shall be present at all times bingo is
conducted; and the names and addresses and telephone numbers of
the highest elected officer of the licensee; and his officially appointed designee, one of whom shall be present at all times
bingo is conducted
(d) The address or location of the premises where licensed
bingo games are to be held;
(e) Information as may be required by the commissioner to
satisfy him or her that the applicant meets the requirements of:
(1) Being a charitable or public service organization as
required by this article; and
(2) Being in existence in this state two years one year
prior to filing an application for a bingo license;
(f) The day or days of the week, and the time or times when
the bingo occasions will be held: Provided, That in cases of
inclement weather or circumstances beyond the control of the
operator that require a bingo occasion to be canceled, the bingo
occasion may be rescheduled at the discretion of the licensee;
(g) The name of the owner of the premises where the bingo
occasions are to be held and a copy of all rental agreements
involved if leased or subleased by the applicant from the owner
or lessee;
(h) A statement as to whether the applicant has ever had a
previous application for any bingo license refused, or whether
any previous license has been revoked or suspended;
(i) A statement of the charitable or public service purpose
or purposes for which the bingo proceeds will be expended;
(j) (i) A statement or statements to the effect that the
individuals specified in subdivision (c) of this section and the officers of the applicant understand:
(1) That it is a violation of this article to allow any
persons other than those authorized by this article to conduct
any part of the bingo games; or concessions operated in
conjunction therewith
(2) That it is required to file the reports and keep the
records as provided by this article; and
(3) That it is a crime to violate the provisions of this
article and, in addition, that a violation may result in
suspension or revocation of its license and denial of
applications for subsequent licenses;
(k) (j) A sworn statement by an authorized representative of
the applicant that the information contained in the application
is true to the best of his or her knowledge;
(l) (k) A list and description of estimated expenses to be
incurred in connection with the holding of the bingo occasions
and any concessions operated and the name and address of each
payee; If a concession is operated in accordance with the
provisions of section thirteen of this article, a copy of any
written agreement or an explanation of any oral agreement
providing for any type of remuneration to be received by the
concession operator shall be attached to the application
(m) (l) A list of the names and addresses of all officers
and members of the board of directors, governors or trustees, if
any, and any officially appointed designees, of the applicant
organizations; and
(n) (m) Any other necessary and reasonable information which
the commissioner may require.
§47-20-9. Licensee rules and regulations.
Each licensee may adopt rules and regulations, not
inconsistent with or in violation of the provisions of this
article, or rules or regulations promulgated hereunder, to govern
the conduct of bingo occasions, except that no licensee may allow
an individual not physically present on the premises to play any
bingo games.
Any rules and regulations adopted by the licensee shall be
made available for inspection at all bingo occasions held. Any
such rules and regulations adopted are a part of the records
required to be kept by section sixteen of this article.
§47-20-10. Limits on prizes awarded -- General provisions.
Except as otherwise provided in section twenty-two of this
article, during the period of a license the average total prizes
awarded by a licensee, or in the aggregate by two or more limited
occasion licensees holding a joint bingo occasion, for any bingo
occasion occasions held pursuant to an annual or limited occasion
license, may not exceed ten thousand dollars in value.
Prizes may be money or merchandise other than beer,
nonintoxicating beer, wine, spirits or alcoholic liquor as
defined in section five, article one, chapter sixty of this code.
If the prizes are merchandise, the value assigned to them is
their fair market value at the time of purchase.
§47-20-11. Operator of bingo games and related concessions.
Except as provided in sections thirteen and section twenty-
two of this article, only persons, as defined in section two of
this article, who are residents of this state and who are active
members of the licensee organization or its authorized auxiliary
organization and who have been active members in good standing of
the licensee organization or its authorized auxiliary for at
least two years one year prior to the date of filing of the
application for a charitable bingo license or the most recent
filing of an application for renewal of the license may
participate in any manner in direct the conduct of any bingo
game: or operate any concession in conjunction with a bingo
occasion Provided, That notwithstanding anything contained in
this article to the contrary, no individual under the age of
eighteen years may directly or indirectly participate in the
conduct of a licensed bingo game except for junior firefighters,
in accordance with the provisions of this article.
§47-20-12. Compensation.
Except as provided otherwise in sections twelve-a thirteen
and twenty-two of this article, no individual officer of an
organization who participates in any manner in the conduct of a
bingo occasion or the operation of a concession in conjunction
with a bingo occasion may receive or accept any commission, wage,
salary, reward, tip, donation, gratuity or other form of
compensation or remuneration whether directly or indirectly,
regardless of the source, for his or her work, labor or services.
§47-20-12a. Compensation of bingo operator; number of employees.
(a) Within the guidelines set forth in subsections (b), (c)
and (d) of this section A licensee may pay a salary, the minimum
of which shall be established at the federal minimum wage, and
the maximum being six dollars and fifty cents ten dollars per
hour, to operators of bingo games, not to exceed the expense
limitations set forth in section fifteen of this article. who are
active members of the licensee organization and who have been
active members in good standing for at least two years prior to
the date of filing of the application for a charitable bingo
license or the most recent filing of an application for renewal
of the license.
(b) If the licensee's gross receipts from bingo occasions
equal or exceed one hundred thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to not more than eight operators.
(c) If the licensee's gross receipts from bingo occasions
are less than one hundred thousand dollars, but equal or exceed
fifty thousand dollars for the licensee's most recently filed
annual financial report, a salary may be paid to not more than
five operators.
(d) If the licensee's gross receipts from bingo occasions
are less than fifty thousand dollars for the licensee's most
recently filed annual financial report, a salary may be paid to
not more than three operators.
(e) (b) If the licensee also possesses a super bingo
license, it may pay a salary to not more than fifteen operators any operators needed during the super bingo occasion.
(f) In the case of a licensee lawfully holding a charitable
bingo occasion simultaneously with a charitable raffle occasion,
the number of paid charitable bingo operator employees allowed
under this limitation for bingo licensees shall be in addition to
the number of charitable raffle operator employees allowed under
section fifteen, article twenty-one of this chapter.
(c) Licensees holding simultaneous charitable bingo
occasions and charitable raffles shall pay bingo operators from
the proceeds of bingo operations and shall pay raffle operators
from the proceeds of raffle operations, and the charitable bingo
fund and the charitable raffle fund and payments from the funds
shall may not be commingled.
(g) (d) For purposes of the limitations set forth in this
section, the term "operator" or "bingo operator" or "raffle
operator" does not include any person who sells food, beverages,
tobacco products, newspapers or souvenirs at bingo occasions.
shall not include concession stand workers. Wages paid to
concession workers shall not exceed six dollars and fifty cents
per hour.
§47-20-15. Payment of reasonable expenses from proceeds; net
proceeds disbursement.
(a) The reasonable, necessary and actual expenses incurred
in connection with the conduct of bingo occasions, not to exceed
twenty-five percent of the gross proceeds collected during a
license period, may be paid out of the gross proceeds of the
conduct of bingo, including, but not limited to:
(1) Rent paid for the use of the premises: Provided, That
a copy of the rental agreement was filed with the bingo license
application and any changes to the rental agreement were filed
within ten days of being made: Provided, however, That in no
event may the rent paid for the use of any premises exceed the
fair market value of rent for the premises;
(2) The cost of custodial services;
(3) The cost to the licensee organization for equipment and
supplies used to conduct the bingo occasion;
(4) The cost to the licensee organization for advertising
the bingo occasion;
(5) The cost of hiring security personnel, licensed pursuant
to the provisions of article eighteen, chapter thirty of this
code; and
(6) The cost of providing child care services to the raffle
bingo patrons: Provided, That any proceeds received from the
provision of child care services shall be handled the same as
raffle bingo proceeds.
(b) The actual cost to the licensee for prizes, not to
exceed the amounts as specified in section ten of this article,
may be paid out of the gross proceeds of the conduct of bingo.
(c) The cost of any refreshments, souvenirs or any other
item sold or otherwise provided through any concession to the
patrons may not be paid for out of the gross proceeds from the
bingo occasion. The licensee shall expend all net bingo proceeds
and any interest earned on the proceeds for the charitable or
public service purposes. stated in the application within one
year after the expiration of the license under which the bingo
occasions were conducted. A licensee which does not qualify as
a qualified recipient organization may apply to the commissioner
at the time it applies for a bingo license or as provided in
subsection (e) (g) of this section for permission to apply any or
all of its net proceeds to directly support a charitable or
public service activity or endeavor which it sponsors.
(d) No gross proceeds from any bingo operation may be
devoted or in any manner used by any licensee or qualified
recipient organization for the construction or acquisition of
real or personal property except that which is used exclusively
for one or more charitable or public service purposes: Provided,
That all qualified nonprofit tax exempt organizations that own
and maintain physical facilities which are used for furtherance
of their tax exempt objectives, are considered to be qualified
recipient organizations and may expend the net proceeds from
conduct of bingo operations to pay their operating expenses and
any repairs and improvements to the physical facilities owned by
those organizations, as well as for charitable and public service
programs. or as provided in subdivision (3), subsection (a) (c) of this section
(e) The tax commissioner has the authority to disapprove any
contract for sale of goods or services to any charitable bingo
licensee for use in or with relation to any charitable bingo
operation or occasion, or any lease of real or tangible personal
property to any charitable bingo licensee for use in or with
relation to any charitable bingo operation or occasion, if the
contract or lease is unreasonable or not representative of fair
market value. Contracts or leases which are disapproved shall be
considered to be in contravention of this article, and are void.
Any attempt by any charitable bingo licensee to engage in
transactions under the terms of any lease or contract that has
been disapproved is grounds for revocation or suspension of the
charitable bingo license and for refusal by the tax commissioner
to renew the charitable bingo license.
(f) If a property owner or lessee, including his or her
agent, has entered into a rental contract to hold super bingo
occasions on his or her premises, the premises shall be rented,
for super bingo occasions, to not more than four super bingo
licensees during any period of four consecutive calendar weeks:
Provided, That each of the charitable or public service
organizations desiring to hold a super bingo occasion must
possess its own super bingo license. Subject to this limitation,
the premises may be used for super bingo occasions during two
consecutive days during a conventional weekend. For purposes of
this subsection, the term "conventional weekend" means Saturday and Sunday. Provided, however, That the super bingo occasions may
occur at the same facility no more often than alternating
weekends during a calendar month.
(g) Any licensee which, in good faith, finds itself unable
to comply with the requirements of this provision shall apply to
the commissioner for permission to expend its net proceeds for
one or more charitable or public service purposes other than that
stated in its license application or for permission to expend its
net proceeds later than the one-year time period specified in
this section. The application shall be on a form furnished by
the commissioner and shall include the particulars of the
requested changes and the reasons for the changes. The
application shall be filed no later than sixty days before the
end of the one-year period specified in this section. In the
case of an application to extend the time in which the net
proceeds are to be expended for a charitable or public service
purpose, the licensee shall file such periodic reports with the
commissioner as the commissioner directs until the proceeds are
expended.
Any licensee which holds a bingo occasion as provided by
this article shall maintain a separate checking account and
separate bookkeeping procedure for its bingo operations. Money
for expenses shall be withdrawn only by checks having preprinted
consecutive numbers and made payable to a specific person, firm
or corporation and at no time shall may a check be made payable to cash. A licensee shall maintain all records required by this
article for at least three years and the records shall be open to
the commissioner for reasonable inspection. Whenever the tax
commissioner has reasonable cause to believe a licensee has
violated any of the provisions of this article, he or she may
perform or cause to be performed an audit of the licensee's books
and records. Provided, That the tax commissioner shall perform
or cause to be performed an audit of the books and records of any
licensee that has awarded total prizes in excess of one hundred
seventy-five thousand dollars. The tax commissioner shall file
a copy of the completed audit with the county commission of the
county wherein the licensee holds bingo occasions.
§47-20-17. Advertising.
A licensee may advertise its bingo occasions in a manner
reasonably necessary to promote the occasion. Provided, That a
licensee may not hire any person, as defined in section two of
this article, to develop or conduct an advertising campaign to
promote any bingo occasion.
§47-20-20. Violation of provisions; penalties.
Any person who knowingly violates the provisions any
provision of this article other than sections eighteen and
nineteen is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred nor more than one
thousand dollars. Any individual who knowingly violates the
provisions any provision of this article other than sections
eighteen and nineteen is guilty of a misdemeanor and, upon a second or subsequent conviction thereof, shall be fined not less
than one hundred nor more than one thousand dollars or imprisoned
not more than one year or both fined and imprisoned.
§47-20-22. State fair bingo license; rules.
The West Virginia state fair board may apply annually to the
tax commissioner for a state fair bingo license to provide for
the conduct of bingo occasions at the state fair. The license
shall permit the state fair board to have one or more persons
conduct bingo occasions at the state fair who have conducted
bingo occasions on a regular basis for a at least two years prior
to the date of the state fair board's application. A license fee
of five hundred dollars shall be paid to the tax commissioner for
the state fair bingo license. The provisions of sections ten,
eleven, twelve, fourteen, fifteen and twenty-eight of this
article do not apply to a state fair bingo license. No state
fair bingo license may be issued unless the application includes
a copy of any lease or agreement entered into between the state
fair board and the persons who are to conduct bingo occasions at
the state fair. The state fair board may adopt reasonable rules,
and regulations not inconsistent with or in violation of the
provisions of this article, to govern the holding of bingo
occasions at the state fair.
§47-20-23. Administration; rules.
(a) The tax commissioner shall administer the provisions of
this article in accordance with the provisions of chapter twenty-
nine-a of this code.
(b) The commissioner shall deny an application for a license
if he or she finds that the issuance thereof would be in
violation of the provisions of this article.
(c) The commissioner may revoke, suspend or refuse to renew
a license if the licensee or any member of a licensee
organization has been convicted pursuant to section eighteen or
nineteen of this article and the commissioner finds that it would
be in the public interest to do so; or if the licensee has
violated any of the provisions of this article: Provided, That
before revoking or suspending a license issued under the
authority of this article, the commissioner shall give at least
ten days, three days for a limited occasion or state fair
license, notice to the licensee. Notice shall be in writing,
shall state the reason for revocation or suspension and shall
designate a time and place when the licensee may show cause why
the license should not be revoked or suspended. Notice shall be
sent by certified mail to the address of the licensee or served
by certified mail or by personal or substituted service on the
person who applied for the license on behalf of the licensee.
The licensee may, at the time designated for the hearing, produce
evidence in its behalf and be represented by counsel. A
decision of the commissioner revoking or suspending a license is
subject to judicial review upon the appeal of a licensee.
(d) The commissioner may suspend, revoke or refuse to renew
any license issued hereunder for a material failure to maintain
the records or file the reports required by this article if the commissioner finds that said the failure will substantially
impair the commissioner's ability to administer the provisions of
this article with regard to said the licensee.
(e) The commissioner shall promulgate propose reasonable
rules and regulations necessary to the administration of this
article in accordance with the provisions of article three,
chapter twenty-nine-a of this code.
(f) The provisions of article five, chapter twenty-nine-a of
this code apply to the denial, revocation, suspension of or
refusal to renew a license hereunder.
(g) The burden of proof in any administrative or court
proceeding is on the applicant to show cause why a bingo license
should be issued or renewed and on the licensee to show cause why
its license should not be revoked or suspended.
(h) Notwithstanding any other provision of this article, the
commissioner may issue an emergency order suspending a bingo
license in the following manner:
(1) An emergency order may be issued only when the
commissioner believes that:
(a) (A) There has been a criminal violation of this article;
(b) (B) Such action is necessary to prevent a criminal
violation of this article; or
(c) (C) Such action is necessary for the immediate
preservation of the public peace, health, safety, morals, good
order or general welfare.
(2) The emergency order shall set forth the grounds upon which it is issued, including a statement of facts constituting
the alleged emergency necessitating such action. This order
shall be served by personal or substituted service on the
licensee or the person who applied for the license on behalf of
the licensee.
(3) The emergency order is effective immediately upon
issuance and service upon the licensee.
(4) Within five days after issuance of an emergency order,
the commissioner shall set a time and place for a hearing wherein
the licensee may appear and show cause why its license should not
be revoked.
§47-20-24. Filing of reports.
Each licensee holding an annual license shall file with the
tax commissioner a quarterly and an annual financial report
summarizing its bingo operations for the time period covered by
the report. Each quarterly report shall be filed within twenty
days after the end of the quarter which it covers. The annual
report shall be filed within thirty days after the expiration of
the license under which the operations covered by the report were
held. The time period covered by the annual report is the full
license year or, at the election of a licensee receiving state or
federal funding, the most recently ended state or federal fiscal
year.
Each licensee holding a limited occasion license or state
fair license shall file with the tax commissioner a financial
report summarizing its bingo operations for the license period within thirty days after the expiration of the license under
which the operations covered by the report are held. The report
shall contain the name, address and social security number of any
individual who receives, during the course of a bingo occasion,
prizes, the aggregate value of which exceeds one hundred dollars,
and other information required by the commissioner: Provided,
That Any licensee failing to file the report when due is liable
for a penalty of twenty-five dollars for each month or fraction
of a month during which the failure continues, the penalty not to
exceed one hundred dollars. Provided, however, That annual
financial reports must contain either a compilation or review of
the financial report by a certified or licensed public
accountant, or may be audited by a certified or licensed public
accountant, if a licensee's gross receipts exceed fifty thousand
dollars.
§47-20-28. Restrictions on use of bingo equipment.
A licensee may use only bingo equipment which it owns or
which it borrows without compensation, or leases for a reasonable
and customary amount. from another licensee
§47-20-30. Severability.
If, for any reason, any section, sentence, clause, phrase or
provision of this article or the application thereof to any
person or circumstance is held unconstitutional or invalid, such
the unconstitutionality or invalidity shall does not affect other
sections, sentences, clauses, phrases or provisions or their
application to any other person or circumstance, and to this end each and every article, section, sentence, clause, phrase or
provision of this article is hereby declared to be severable.
ARTICLE 21. CHARITABLE RAFFLES.
§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 and includes any organization or association
described in subsection 501(c)(2), 501(c)(3), 501(c)(4),
501(c)(8),
501(c)(10), 501(c)(19) or
501(c)(23)
of the Internal
Revenue Code of 1986, as amended. Charitable or public service
organization does not include any nonprofit association or
organization, whether incorporated or not, which is organized
primarily exclusively for the purposes of influencing legislation
or supporting or promoting the campaign of any single candidate
for public office.
(c) "Commissioner" means the state tax commissioner.
(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) (d) "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.
(e) "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) (f) "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 may not be deemed to include any moneys collected or
received from the sale of concessions food, beverages, tobacco
products, newspapers or souvenirs at raffle occasions.
(h) (g) "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) (h) "Licensee" means any organization or association
granted an annual or limited occasion license pursuant to the
provisions of this article.
(j) (i) "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 may not be deemed to include moneys
collected or received from the sale of concessions food,
beverages, tobacco products, newspapers or souvenirs at raffle
occasions.
(k) (j) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership
or other nongovernmental entity or institution.
(l) (k) "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) (l) "Raffle" means a game involving the selling of paper
or electronic tickets to participate in such game entitling the
holder or holders participant to a chance on a prize or prizes:
Provided, That the medium or machine which reads the electronic tickets may not itself determine winners by utilizing random
generators or internal logic.
(o) (m) "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) (n) "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 section 501(a) and
described in subsection 501(c)(2), 501(c)(3), 501(c)(4),
501(c)(8), 501(c)(10), 501(c)(19) or 501(c)(23) or section or
501(d) of the Internal Revenue Code of 1986, as amended; or is
exempt from income taxes under subsection section 527(a) of said
code.
§47-21-3. Authorizing the conduct of certain raffles without
a license.
Notwithstanding any other provisions of this article to the
contrary, any charitable or public service organization which has
been in existence in this state for at least one year is hereby
authorized to conduct raffles without compliance with the
licensing provisions of this article: Provided, That any prize
awarded in any single raffle at a raffle occasion may not exceed
in value the sum of one thousand two thousand five hundred
dollars. Provided, however, That the cumulative gross proceeds
derived from the conduct of raffle occasions raffles by any such charitable or public service organization shall may not exceed
seven thousand five hundred fifteen thousand dollars during any
calendar year: Provided further, That any such organization
shall is not be subject to the record keeping provisions of
section sixteen of this article but shall maintain a separate
accounting for the operation of raffles. All records required by
this section shall be maintained for at least three calendar
years and shall be available for reasonable inspection by the
commissioner.
§47-21-4. Who may conduct raffles; application for license;
licenses not transferable.
(a) Except as provided in section three of this article,
only persons, as defined in section two of this article, who are
residents of this state and who are active members or employees
of any charitable or public service organization which has been
in existence in this state for at least two years prior to filing
an application for a raffle license issued pursuant to section
five or six of this article may hold raffle occasions conduct
raffles in accordance with the provisions of this article during
the time it holds a valid license.
(b) Application for a raffle license shall be made to the
tax commissioner and shall be on a form supplied by him or her.
The application shall contain the information required by section
eight of this article and any other information which the
commissioner considers necessary. Except as otherwise provided
in this section, no raffle may be held and no tickets may be sold pursuant to this article until the raffle application has been
approved by the tax commissioner and the license has been
received by the applicant. After a successful background check
has been completed on the applicant, the commissioner shall issue
the bingo license, and shall issue any bingo license renewal
automatically: Provided, That the commissioner is not required
to automatically renew the bingo license of any licensee that
was not in good standing or who violated any provision of this
article at any time during the previous licensing period.
Provided, That no raffle occasion may be held and no raffle
tickets may be sold until a sixty day filing period, which is
that time period between the receipt of that application by the
tax commissioner and the first raffle occasion, has expired:
Provided, however, That The tax commissioner shall send the
applicant its license within five days after the application is
approved. A licensee may begin holding bingo occasions
immediately upon receipt of the bingo license. The commissioner
shall send notification to the applicant within five days after
denial of the bingo application.
If the sixty day filing
period has expired and If after sixty days the application has
not been denied and the raffle license has not been received by
the applicant, the applicant may consider the application
approved and begin to sell tickets for the raffle or hold the
raffle occasion. The tax commissioner shall send the applicant
its license within five days after the expiration of the filing
period if the application has not been otherwise denied.
(c) For purposes of this article, any application for an
annual license or a limited occasion license received prior to
the effective date of this article is considered filed on the
effective date.
(d) No raffle license issued pursuant to this article may be
transferred.
§47-21-5. Annual license; conditions on holding of raffles.
A charitable or public service organization or any of its
auxiliaries or other organizations otherwise affiliated with it,
may apply for an annual license. Only one license per year in
the aggregate may be granted to a charitable or public service
organization and all of its auxiliaries or other associations or
organizations otherwise affiliated with it: Provided, That for
purposes of this section, the various branches, chapters or
lodges of any national association or organization or local
churches of a nationally organized church are not considered
affiliates or auxiliaries of each other. The commissioner shall
by regulation provide for the manner for determining to which
organization, whether the parent organization, an affiliate or an
auxiliary, the one license allowed under this section is granted.
An annual license is valid for one calendar year from the date of
issuance. No organizations may hold a joint raffle occasion
under any annual licenses.
A licensee shall display a copy of its annual raffle license
conspicuously at the each location where the raffle occasion a
raffle is held.
§47-21-8. Information required in application.
An application for a raffle license shall include the
following information:
(a) Name of the applicant and name and headquarter's address
of any state or national organization of which the applicant is
a local branch or lodge;
(b) The address and telephone number of the applicant
organization, if any, and if the applicant organization has no
telephone, then the address and telephone number of the person
applying on behalf of such organization shall be supplied;
(c) For a limited occasion license, the names and addresses
of two or more bona fide active members of the applicant
organization who are charged with overall responsibility for the
applicant's raffle operations, at least one of whom shall be
present when the winning numbers or names are drawn, announced,
posted and verified and the prizes are awarded; and the names and
addresses of the highest elected officer of the licensee and his
officially appointed designee, one of whom shall be present when
the winning numbers or names are drawn, announced, posted and
verified and the prizes are awarded; for an annual license, the
names, addresses and telephone numbers of three or more bona fide
active members of the applicant organization who are charged with
overall responsibility for the applicant's raffle operations, at
least one of whom shall be present when the winning numbers or
names are drawn, announced, posted and verified and the prizes
are awarded; and the names and addresses and telephone numbers of the highest elected officer of the licensee and his officially
appointed designee, one of whom shall be present when the winning
numbers and names are drawn, announced posted and verified and
the prizes are awarded;
(d) The address or location description of the premises
location where licensed raffles are to be held;
(e) Information as may be required by the commissioner to
satisfy him or her that the applicant meets the requirements of:
(1) Being a charitable or public service organization as
defined by this article; and
(2) Being in existence in this state for at least one year
two years prior to filing an application for a raffle license.
(f) Designate the date or dates and the time or times when
the raffle occasions will be held;
(g) (f) The name of the owner of the premises where the
raffle occasions are to be held and a copy of all rental
agreements involved if such premises are leased or subleased by
the applicant from the owner or lessee;
(h) (g) State whether the applicant has ever had a previous
application for any raffle license refused, or whether any
previous raffle license has been revoked or suspended;
(i) State the charitable or public service purpose or
purposes for which the raffle proceeds will be expended;
(j) (h) Provide statements to the effect that the
individuals specified in subdivision (c) of this section bona
fide active members of the applicant organization who are charged with the overall responsibility for the applicant's raffle
operations and the officers of the applicant understand:
(1) That it is a violation of this article to allow any
persons other than those authorized by this article to conduct
the raffle or concessions operated in conjunction therewith;
(2) That it is required that the reports be filed and the
records kept as provided by this article; and
(3) That it is a crime to violate the provisions of this
article and, that a violation of such provisions may result in
suspension or revocation of the raffle license and denial of
applications for subsequent raffle licenses;
(k) (i) Provide a sworn statement by an authorized
representative of the applicant that the information contained in
the application is true to the best of his or her knowledge;
(l) (j) Provide a list and description of estimated expenses
to be incurred in connection with the holding of the raffle
occasions; and any concessions operated and the name and address
of each payee. If a concession is operated in accordance with
the provisions of section thirteen of this article, a copy of any
written agreement or an explanation of any oral agreement
providing for any type of remuneration to be received by the
concession operator shall be attached to the application
(m) (k) A list of the names and addresses of all officers
and members of the board of directors, governors or trustees, if
any, of the applicant organizations; and
(n) (l) Any other necessary and reasonable information which the commissioner may require.
§47-21-12. Compensation.
Except as otherwise provided in section thirteen of this
article, no individual officer of an organization who
participates in any manner in the conduct of a raffle occasion or
the operation of a concession in conjunction with a raffle
occasion may receive or accept either directly or indirectly any
commission, wage, salary, reward, tip, donation, gratuity or
other form of compensation or remuneration, regardless of the
source, for his or her work, labor or services.
(a) A licensee may pay a salary, the minimum of which shall
be established at the federal minimum wage, and the maximum which
shall be six dollars and fifty cents ten dollars per hour, to
operators of charitable raffle games, not to exceed the expense
limitations set forth in section fifteen of this article. who
are active members of the licensee organization and who have been
active members in good standing for at least two years prior to
the date of filing of the application for a charitable raffle
license or the most recent filing of an application for renewal
of the license.
(b) If the licensee's gross receipts from raffle occasions
equal or exceed one hundred thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to not more than eight operators.
(c) If the licensee's gross receipts from charitable raffle
occasions are less than one hundred thousand dollars, but equal or exceed fifty thousand dollars for the licensee's most recently
filed annual financial report, a salary may be paid to not more
than five operators.
(d) If the licensee's gross receipts from charitable raffle
occasions are less than fifty thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to no more than three operators.
(e) In the case of a licensee lawfully holding a charitable
bingo occasion simultaneously with a charitable raffle occasion,
the number of paid charitable raffle operator employees allowed
under this limitation for charitable raffle licensees is in
addition to the number of charitable bingo operator employees
allowed under section twelve-a, article twenty of this chapter.
(b) Licensees holding simultaneous charitable bingo
occasions and charitable raffles shall pay bingo operators from
the proceeds of bingo operations and shall pay raffle operators
from the proceeds of raffle operations, and the charitable bingo
fund and the charitable raffle fund and payments from the funds
shall may not be commingled.
(f) (c) For purposes of the limitations set forth in this
section, the term "operator" or "bingo operator" or "raffle
operator" does not include any person who sells food, beverages,
tobacco products, newspapers or souvenirs at raffle occasions.
shall not include concession stand workers. Wages paid to
concession workers shall not exceed six dollars and fifty cents
per hour.
§47-21-13. Compensation for concession operator; concession
operated by charitable or public service organization.
A licensee may allow any person to operate concessions in
conjunction with raffle occasions, and to be compensated for such
operation. in accordance with the following provisions:
(a) The licensee organization is one which meets or holds
functions other than raffle occasions on a regular basis;
(b) The concession to be operated at the raffle occasion is
operated regularly at such meetings or functions;
(c) The person which operates the concession at such regular
meetings or functions is the same which operates the concession
at the raffle occasion; and
(d) The terms of the agreement under which the person
operates the concession at the raffle occasion are the same terms
under which the concession is operated at the regular meetings or
functions: Provided, That a copy of such agreement is filed at
the time the application is made and any changes thereto are
filed within ten days of being made.
In addition, any charitable or public service organization
as defined by section two of this article may operate a
concession at any raffle occasions held by a licensee: Provided,
That the net proceeds it receives from that concession are used
solely for the charitable or public service purposes of that organization.
§47-21-15. Payment of reasonable expenses from proceeds; net
proceeds disbursement.
(a) The reasonable, necessary and actual expenses incurred
in connection with the conduct of raffle occasions, not to exceed
twenty-five percent of the gross proceeds collected during a
license period, may be paid out of the gross proceeds of the
conduct of raffle, including, but not limited to:
(1) Rent paid for the use of the premises: Provided, That
a copy of the rental agreement was filed with the raffle license
application with any modifications to the rental agreement to be
filed within ten days of being made: Provided, however, That in
no event may the rent paid for the use of any premises exceed the
fair market value of rent for the premises;
(2) The cost of custodial services;
(3) The cost to the licensee organization for equipment and
supplies used to conduct the raffle occasion;
(4) The cost to the licensee organization for advertising
the raffle occasion;
(5) The cost of hiring security personnel, licensed pursuant
to the provisions of article eighteen, chapter thirty of this
code; and
(6) The cost of providing child care services to the raffle
patrons: Provided, That any proceeds received from the provision
of child care services shall be handled the same as raffle
proceeds.
(b) The actual cost to the licensee for prizes, not to
exceed the amounts as specified in section eleven of this
article, may be paid out of the gross proceeds of the conduct of
raffle.
(c) The cost of any refreshments, souvenirs or any other
item sold or otherwise provided through any concession to the
patrons may not be paid for out of the gross proceeds from the
raffle occasion. The licensee shall expend all net raffle
proceeds and any interest earned on the net raffle proceeds for
the charitable or public service purposes stated in the
application within one year after the expiration of the license
under which the raffle occasions were conducted. A licensee
which does not qualify as a qualified recipient organization may
apply to the commissioner at the time it applies for a raffle
license or as provided in subsection (e) of this section for
permission to apply any or all of its net proceeds to directly
support a charitable or public service activity or endeavor which
it sponsors.
(d) (c) No gross proceeds from any raffle operation may be
devoted or in any manner used by any licensee or qualified
recipient organization for the construction, acquisition, or
improvement, of real or personal property except that which is
used exclusively for one or more charitable or public service
purposes or as provided in subdivision (3), subsection (a) of
this section: Provided, That all qualified nonprofit tax exempt
organizations that own and maintain physical facilities which are used for furtherance of their tax exempt objectives, are
considered to be qualified recipient organizations and may
expend the net proceeds from conduct of bingo operations to pay
their operating expenses and any repairs and improvements to the
physical facilities owned by those organizations, as well as for
charitable and public service programs
.
(e) (d) The tax commissioner has the authority to
disapprove any contract for sale of goods or services to any
charitable raffle licensee for use in or with relation to any
charitable raffle operation or occasion, or any lease of real or
tangible personal property to any charitable raffle licensee for
use in or with relation to any charitable raffle operation or
occasion, if the contract or lease is unreasonable or not
representative of fair market value. Disapproved contracts or
leases shall be considered to be in contravention of this
article, and are void. Any attempt by any charitable raffle
licensee to engage in transactions under the terms of any
disapproved lease or contract is grounds for revocation or
suspension of the charitable raffle license and for refusal by
the tax commissioner to renew the charitable raffle license.
(f) Any licensee which, in good faith, finds itself unable
to comply with the requirements of the subsections (a) through
(e) of this section shall apply to the commissioner for
permission to expend its net proceeds for one or more charitable
or public service purposes other than that stated in its license
application or for permission to expend its net proceeds later than the one-year time period specified in this section.
The application shall be on a form furnished by the commissioner
and shall include the particulars of the requested changes and
the reasons for the changes. The application shall be filed no
later than sixty days before the end of the one-year period
specified in this section. In the case of an application to
extend the time in which the net proceeds are to be expended for
a charitable or public service purpose, the licensee shall file
such periodic reports with the commissioner as the commissioner
directs until the proceeds are expended.
§47-21-16. Records; commissioner audit.
Any licensee which holds a raffle occasion as provided by
this article shall maintain a separate account and separate
bookkeeping procedure for its raffle operations. All records
required by this article shall be maintained for at least three
years and shall be open to the commissioner for reasonable
inspection. Whenever the commissioner has reasonable cause to
believe a licensee has violated any of the provisions of this
article, he or she may perform or cause to be performed an audit
of the licensee's books and records.
§47-21-21. Administration; rules.
(a) The commissioner shall promulgate propose rules and
regulations to administer the provisions of this article in
accordance with the provisions of chapter twenty-nine-a of this
code.
(b) The commissioner shall deny an application for a license or modification thereof if he finds that the issuance thereof
would be in violation of the provisions of this article.
(c) The commissioner may revoke, suspend or refuse to renew
a license if the licensee or any member of a licensee
organization has been convicted pursuant to section eighteen or
nineteen of this article and the commissioner finds that it would
be in the public interest to do so; or if the licensee has
violated any of the provisions of this article: Provided, That
before revoking or suspending a license issued under the
authority of this article, the commissioner shall give at least
ten days, three days for a limited occasion license, notice to
the licensee. Notice shall be in writing, state the reason for
revocation or suspension and designate a time and place when the
licensee may show cause why the license should not be revoked or
suspended. The notice required by this section shall be by
personal or substituted service, in accordance with the West
Virginia rules of civil procedure for trial courts of record, on
the person who applied for the license on behalf of the licensee.
The licensee may, at the time designated for the hearing, present
evidence in its behalf and be represented by counsel. A decision
of the commissioner revoking or suspending a license is subject
to judicial review upon the appeal of a licensee. Such decision
shall be subject to judicial review in the same manner as other
decisions of the commissioner.
(d) The commissioner may suspend, revoke or refuse to renew
any license issued hereunder for a material failure to maintain the records or file the reports required by this article if the
commissioner finds that said failure will substantially impair
the commissioner's ability to administer the provisions of this
article with regard to such licensee.
(e) The commissioner shall promulgate propose reasonable
rules and regulations necessary to the administration of this
article.
(f) The provisions of article five, chapter twenty-nine-a of
this code apply to the denial, revocation, suspension of or
refusal to renew a license hereunder.
(g) The burden of proof in any administrative or court
proceeding is on the applicant to show cause why a raffle license
should be issued or renewed and on the licensee to show cause why
its license should not be revoked or suspended.
(h) Notwithstanding any other provision of this article, the
commissioner may issue an emergency order suspending a raffle
license under the following circumstances and in the following
manner:
(1) An emergency order may be issued only when the
commissioner believes that:
(i) (A) There has been a criminal violation of this article;
(ii) (B) Such action is necessary to prevent a criminal
violation of this article; or
(iii) (C) Such action is necessary for the immediate
preservation of the public peace, health, safety, morals, good
order or general welfare.
(2) The emergency order shall set forth the grounds upon
which it is issued, including a statement of facts constituting
the alleged emergency necessitating such action. This order
shall be served by personal or substituted service on the
licensee or the person who applied for the license on behalf of
the licensee.
(3) The emergency order is effective immediately upon
issuance and service upon the licensee.
(4) Within five days after issuance of an emergency order,
the commissioner shall set a time and place for a hearing wherein
the licensee may appear and show cause why its license should not
be revoked.
§47-21-22. Filing of reports.
Each licensee holding an annual, limited or state fair
license shall file with the commissioner a quarterly financial
report summarizing its raffle operations for the time period
covered by the report.
within thirty days after the expiration
date of the license. The time period covered by an annual report
is the full license year or, at the election of a licensee
receiving state or federal funding, the most recently ended state
or federal fiscal year.
The reports required by this section shall contain the name,
address and social security number of any individual who received
during the course of a raffle occasion prizes the aggregate value
of which exceeded one hundred dollars, and other information
required by the commissioner: Provided, That
Any licensee failing to file the report when due is liable
for a penalty of twenty-five dollars for each month or fraction
of a month during which the failure continues, the penalty not to
exceed one hundred dollars. Provided, however, That annual
financial reports must contain either a compilation or review of
such financial report by a certified or licensed public
accountant, or may be audited by a certified or licensed public
accountant, if a licensee's gross receipts exceed fifty thousand
dollars.
§47-21-26. Restrictions on use of raffle equipment.
A licensee may use only raffle equipment which it owns or
which it borrows without compensation, or leases for a reasonable
and customary amount. from another licensee
ARTICLE 23. CHARITABLE RAFFLE BOARDS AND GAMES.
§47-23-2. Definitions.
For purposes of this article, unless specified otherwise:
(a) "Commissioner" means tax commissioner of the state of
West Virginia, or his or her delegate.
(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; (3) a medium, machine or device
which reads electronic tickets
but does not itself determine
winners by utilizing random generators or internal logic
; or (3)
such (4) any 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 seven thousand five hundred dollars 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.
§47-23-3. Fees.
(a) Wholesalers or distributors of charitable raffle boards
and games to retailers shall be licensed and a license fee in the
amount of five hundred dollars shall be paid to the commissioner
by each wholesaler or distributor for an annual license.
Wholesalers and distributors shall also pay a fee of twenty cents
on each dollar of retail value of each charitable raffle board or
game sold to a retailer. This fee shall be in addition to any
tax imposed pursuant to the provisions of article fifteen, chapter eleven of this code. The Except as provided in
subsection (b) of this section, the fees imposed by this article
shall be deposited in accordance with the provisions of section
two-a, article nine, chapter eleven of this code.
(b) Collections of fees imposed pursuant to the provisions
of subsection (a) of this section, on the electronic tickets read
by the mediums, machines or devices described in subdivision (3),
subsection (e), section two of this article shall be paid by the
commissioner into a special account designated the "West Virginia
Seniors, Veterans and Public Service Enrichment Fund," which is
hereby created in the office of the state treasurer. The fund
consists of funds allocated as provided by this subsection and
any interest earned thereon. Funds, including interest, may be
allocated subject to legislative appropriation to senior
programs, veteran programs, or any other qualifying program, as
determined by the Legislature.