ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 646
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
____________

[Originating in the Committee on Military; reported March 27, 2001.]

A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-b; to amend article two-d of said chapter by adding thereto a new section, designated section four-b; to amend and reenact sections three and seven, article twenty-nine-a of said chapter; to amend and reenact section nine-a, article twenty-two, chapter twenty- nine of said code; to amend and reenact section twenty-two, article twenty-one, chapter forty-seven; to amend and reenact sections two, three and eight, article twenty-three of said chapter; and to further amend said article by adding thereto a new section, designated section ten-a, all relating generally to use of lottery, charitable raffle boards and game proceeds; providing for the sale of revenue bonds by the hospital finance authority to fund one or more skilled nursing facilities that are constructed, equipped, staffed and operated by the secretary of the department of health and human resources to house and serve veterans of the United States armed forces who are citizens of the state; exempting the facilities from the certificate of need provisions; requiring certain reports; redefining terms; increasing certain fees; requiring state identification and inspection stamps; providing for the calculation and quarterly payment of fees; penalties for failing to pay state identification and inspection stamps; establishing administrative remedies; providing for civil penalties; and providing that money collected as a civil penalty be deposited in the general revenue fund.

Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one as amended, be amended by adding thereto a new article designated article one-b; that article two-d of said chapter be amended by adding thereto a new section, designated section four-b; that sections three and seven article twenty-nine-a of said chapter be amended and reenacted; and that sections nine-a, article twenty-two, chapter twenty-nine; and

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 1B. SKILLED NURSING FACILITIES FOR VETERANS OF THE UNITED STATES ARMED FORCES.

§16-1B-1. Legislative findings.
The Legislature finds that the health and welfare of the veterans of the armed forces who are citizens of our state will be best served by the establishment of one or more skilled nursing facilities exclusively for these veterans. Furthermore, the Legislature finds that nearly two hundred thousand veterans in this state have distinguished themselves with the highest level of participation per capita of any state in the wars fought by this nation. Further, an aging veterans' population which suffers from wartime disabilities and illnesses are, or will be, in need of skilled nursing care.

§16-1B-2. Construction, staffing and operation of one or more skilled nursing facilities for veterans of the armed forces of the United States.

The director of veterans affairs shall establish, construct, equip and operate one or more skilled nursing facilities to serve the needs of citizens of this state who are veterans of the armed forces of the United States. For each nursing facility, the director shall appoint a facility administrator and other employees as are necessary to maintain the facility and deliver quality care to residents of the facility.

§16-1B-3. Issuance of bonds by the hospital finance authority; payment of bonds from net profits of the veterans lottery instant scratch-off game.

The director shall request that revenue bonds, not exceeding the principal amount of ten million dollars, be issued by the West Virginia hospital finance authority under provisions of section seven, article twenty-nine-a of this chapter. Net profit from the veterans lottery instant scratch-off game as authorized by section nine-a, article twenty-two, chapter twenty-nine of this code and other revenues that the Legislature may, from time to time, appropriate shall pay the principal and interest obligations of the bonds.
§16-1B-4. Eligibility for service; legislative rule.
In order to qualify for service and residency in a skilled nursing facility established under this article, an applicant must have continuously been a citizen of the state of West Virginia for twelve consecutive months and must have performed active duty in an active component of the armed forces or performed active service in a reserve component of the armed forces for at least twelve consecutive months. The director shall propose a legislative rule further defining and limiting eligibility for services and residency under this article.
ARTICLE 2D. CERTIFICATE OF NEED.

§16-2D-4b. Certificate of Need; exemption for veterans' nursing home construction, operation and maintenance.

Notwithstanding any provision of this article and any rule issued by the state agency, a certificate of need is not required for the construction, renovation, maintenance or operation of one or more state veterans' nursing homes established pursuant to the provisions of article one-b of this chapter.
ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.

§16-29A-3. Definitions.

As used in this article, unless the context clearly requires a different meaning:
(1) "Authority" means the West Virginia hospital finance authority created by section four of this article, the duties, powers, responsibilities and functions of which are specified in this article;
(2) "Board" means the West Virginia hospital finance board created by section four of this article, which shall manage and control the authority;
(3) "Bond" means a revenue bond issued by the authority to effect the purposes of this article;
(4) "Construction" means and includes reconstruction, enlargement, improvement and providing furnishings or equipment;
(5) "Direct provider of health care" means a person or organization whose primary current activity is the provision of health care to individuals and includes a licensed or certified physician, osteopath, dentist, nurse, podiatrist or physician's assistant or an organization comprised of these health professionals or employing these health professionals;
(6) "Hospital" means a corporation, association, institution or establishment for the care of those who require medical treatment, which may be a public or private corporation or association, or state owned or operated establishment and specifically includes nursing homes which are licensed under chapter sixteen of this code or those facilities certified under the Social Security Act as intermediate care facilities for the mentally retarded;
(7) "Hospital facilities" means any real or personal property suitable and intended for, or incidental or ancillary to, use by a hospital and includes: Outpatient clinics; laboratories; laundries; nurses, doctors or interns residences; administration buildings; facilities for research directly involved with hospital care; maintenance, storage or utility facilities; parking lots and garages; and all necessary, useful or related equipment, furnishings and appurtenances and all lands necessary or convenient as a site for the foregoing and specifically includes any capital improvements to any of the foregoing. "Hospital facilities" specifically includes office facilities not less than eighty percent of which are intended for lease to direct providers of health care and which are geographically or functionally related to one or more other hospital facilities, if the authority determines that the financing of the office facilities is necessary to accomplish the purposes of this article;
(8) "Hospital loan" means a loan made by the authority to a hospital and specifically includes financings by the authority for hospital facilities pursuant to lease-purchase agreements, installment sale or other similar agreements;
(9) "Note" means a short-term promise to pay a specified amount of money, payable and secured as provided pursuant to this article and issued by the authority to effect the purposes of this article;
(10) "Project costs" means the total of the reasonable or necessary costs incurred for carrying out the works and undertakings for the acquisition or construction of hospital facilities under this article. "Project costs" includes, but is not limited to, all of the following costs: The costs of acquisition or construction of the hospital facilities; studies and surveys; plans, specifications, architectural and engineering services; legal, organization, marketing or other special services; financing, acquisition, demolition, construction, equipping and site development of new and rehabilitated buildings; rehabilitation, reconstruction, repair or remodeling of existing buildings; interest and carrying charges during construction and before full earnings are achieved and operating expenses before full earnings are achieved or a period of one year following the completion of construction, whichever occurs first, and a reasonable reserve for payment of principal of and interest on bonds or notes of the authority. "Project costs" shall also include reimbursement of a hospital for the foregoing costs expended by a hospital from its own funds or from money borrowed by the hospital for such purposes before issuance and delivery of bonds or notes by the authority for the purpose of providing funds to pay the project costs. "Project costs" also specifically includes the refinancing of any existing debt of a hospital necessary in order to permit the hospital to borrow from the authority and give adequate security for the hospital loan. The determination of the authority with respect to the necessity of refinancing and adequate security for a hospital loan is conclusive;
(11) "Revenue" means any money or thing of value collected by, or paid to, the authority as principal of or interest, charges or other fees on hospital loans or any other collections on hospital loans made by the authority to hospitals to finance, in whole or in part, the acquisition or construction of any hospital facilities or other money or property which is received and may be expended for or pledged as revenues pursuant to this article; and

(12) "Veterans skilled nursing facility" means a skilled nursing care facility constructed and operated to serve the needs of veterans of the armed forces of the United States who are citizens of this state.
§16-29A-7. Bonds and notes.
(a) The authority periodically may issue its negotiable bonds and notes in a principal amount which, in the opinion of the authority, shall be necessary to provide sufficient funds for the making of hospital loans, including temporary loans during the construction of hospital facilities, for the payment of interest on bonds and notes of the authority during construction of hospital facilities for which the hospital loan was made and for a reasonable time thereafter and for the establishment of reserves to secure those bonds and notes.
(b) The authority periodically may issue renewal notes, may issue bonds to pay notes and, if it considers refunding expedient, to refund or to refund in advance bonds or notes issued by the authority by the issuance of new bonds, pursuant to the requirements of section thirteen of this article.
(c) The authority may, upon concurrent resolution passed by the Legislature, authorize the issuance of negotiable bonds and notes in a principal amount which are necessary to provide sufficient funds for the construction, reconstruction, renovation and maintenance of one or more skilled nursing facilities that will only serve the skilled nursing needs of West Virginia veterans who have performed active duty in an active component of the armed forces or performed active service in a reserve component of the armed forces. These bonds issued by the authority may not exceed ten million dollars. The revenues pledged for the repayment of principal and interest of these bonds shall include the net profit of the veterans instant lottery scratch-off game authorized by section nine-a, article twenty-two, chapter twenty-nine of this code and eighty percent of the retail value fee assessed on each charitable raffle board or game sold to a West Virginia retailer authorized by section three, article twenty-three, chapter forty- seven of this code

(c) (d) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues or other sources of or available to the authority pledges therefor.
(d) (e) The bonds and the notes shall be authorized by resolution of the authority, shall bear such the date and shall mature at such time or times, in the case of any such note or any renewals thereof, not exceeding seven years from the date of issue of such the original note and in the case of any such bond not exceeding fifty years from the date of issue, as such the resolution may provide. The bonds and notes shall bear interest at such rate or rates, be in such a denominations, be in such a form, either coupon or registered, carry such registration privileges, be payable in such the medium of payment and at such place or places and be subject to such the terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be are executed by the chairman and vice chairman of the board, both of whom may use facsimile signatures. The official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary-treasurer of the board, and any coupons attached to any bond or note shall bear the signature or facsimile signature of the chairman of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such an officer before delivery of such the bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such the delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such the bonds or notes, such the facsimile seal will continue to be sufficient for all purposes.
(e) (f) A resolution authorizing bonds or notes or an issue of bonds or notes under this article may contain provisions, which shall be are a part of the contract with the holders of the bonds or notes, as to any or all of the following:
(1) Pledging and creating a lien on all or any part of the fees and charges made or received or to be received by the authority, all or any part of the moneys received in payment of hospital loans and interest on hospital loans and all or any part of other moneys received or to be received, to secure the payment of the bonds or notes or of any issue of bonds or notes, subject to those agreements with bondholders or noteholders which then exist;
(2) Pledging and creating a lien on all or any part of the assets of the authority, including notes, deeds of trust and obligations securing the assets, to secure the payment of the bonds or notes or of any issue of bonds or notes, subject to those agreements with bondholders or note holders which then exist;
(3) Pledging and creating a lien on any loan, grant or contribution to be received from the federal, state or local government or other source;
(4) The use and disposition of the income from hospital loans owned by the authority and payment of the principal of and interest on hospital loans owned by the authority;
(5) The setting aside of reserves or sinking funds and the regulation and disposition thereof;
(6) Limitations on the purpose to which the proceeds of sale of bonds or notes may be applied and pledging the proceeds to secure the payment of the bonds or notes or of any issue of the bonds or notes;
(7) Limitations on the issuance of additional bonds or notes and the terms upon which additional bonds or notes may be issued and secured;
(8) The procedure by which the terms of a contract with the bondholders or noteholders may be amended or abrogated, the amount of bonds or notes the holders of which must consent thereto and the manner in which the consent may be given; and
(9) Vesting in a trustee or trustees the property, rights, powers, remedies and duties which the authority considers necessary or convenient.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICES.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-9a. Veterans instant lottery scratch-off game.
(a) Beginning the first day of September, two thousand, the commission shall establish an instant lottery scratch-off game designated as the veterans benefit game, which shall be is offered by the lottery. The lottery shall offer the veterans benefit game until the amount of money in the veterans lottery fund created under this section reaches six thirty million dollars.
(b) Notwithstanding the provisions of section eighteen of this article and subject to the provisions of subsection (d) of this section, all net profits received from the sale of veterans benefit game lottery tickets, materials and games shall be are deposited with the state treasurer into the veterans lottery fund created under this section, and the Legislature may make appropriations from this fund for payment of principal and interest for revenue bonds issued under provisions of section seven, article twenty-nine-a, chapter sixteen of this code: Provided, That once the payment of principal and interest is paid in full, the Legislature may appropriate from the fund created under this section moneys for the construction, equipping and operation of one or more skilled nursing beds facilities for veterans of the armed forces of the United States military: Provided, however, After the payment of the above-mentioned items, the Legislature may appropriate any excess funds to the general revenue fund.
(c) Before appropriation of any of the net profits derived from the veterans benefit game for the uses set forth in this section, the Legislature shall first determine that the state has met all debt obligations for which lottery profits have been pledged for that fiscal year.
(d) There is hereby created in the state treasury a special revenue fund designated and known as the veterans lottery fund which shall consist of all revenues derived from the veterans benefit game, any appropriations to the fund by the Legislature and all interest earned from investment of the fund and any gifts, grants or contributions received by the
fund. Revenues received by the veterans lottery fund shall be deposited in the West Virginia consolidated investment pool with the West Virginia investment management board, with the interest income a proper credit to all such these funds.
(e) The commission shall change the design or theme of the veterans benefit game regularly so that the game remains competitive with the other instant lottery scratch-off games offered by the commission. The tickets for the instant lottery game created in this section shall clearly state that the profits derived from the game are being used to benefit veterans in this state.
(f) The health care authority created under section five, article twenty-nine-b, chapter sixteen of this code, shall conduct a survey to determine the need for skilled nursing beds for veterans in this state. The survey shall determine the number of veterans in existing nursing homes in this state; the number of nursing homes collecting reimbursement from the veterans administration; where the veterans are located within this state; the number of skilled nursing beds that currently exist in the areas in which the veterans are located; and any other information necessary to determine the need for skilled nursing beds for veterans in this state. The authority shall also determine the manner in which federal reimbursement may be maximized for these skilled nursing beds: Provided, That the authority, when determining the best method of maximizing reimbursement, shall consider the requirement that veterans pay a fee for residing in the nursing homes through a sliding fee scale based upon ability to pay. The authority shall also determine the benefits of locating the skilled nursing beds adjacent to existing veterans administration medical facilities as a means of minimizing the cost of construction and to avoid duplication of services. The authority shall report its findings to the joint committee on government and finance by the first day of November, two thousand.

CHAPTER 47. REGULATION OF TRADE.

ARTICLE 21. CHARITABLE RAFFLES.

§47-21-22. Filing of reports.
Each licensee holding an annual, limited or state fair license shall file with the commissioner a quarterly and an annual financial report summarizing its raffle operations 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. 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.
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.

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 delegate.
(b) "Retail value" means the actual consideration paid to the wholesaler by the retailer for any raffle boards or games or, in the absence of consideration paid, the actual cost to the wholesaler of the 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 without a license pursuant to section three, article twenty-one of this chapter the provisions of this code governing charitable raffles.
(e) "Charitable raffle board" or "charitable raffle game" means: (1) A board or other device that has many folded printed slips to be pulled from the board or otherwise distributed without a board on payment of a nominal sum in an effort to obtain a slip or chance that entitles the player to a designated prize; (2) a series of paper cards with perforated break-open tabs, a face value of which is covered or otherwise hidden from view to conceal one or more numbers, letters or symbols, which, on payment of a nominal sum, entitles the player to obtain a chance to a designated prize; or (3) such other similar game which may be defined by the state tax commissioner by legislative rule.
(f) "Sale" means the transfer of the ownership of tangible personal property for a consideration.
(g) "Verification" means a unique manufacture identifiable serial number which is required to be printed on each ticket in a charitable raffle board or charitable raffle game or such other form of identification as may be prescribed by the tax commissioner upon a showing of undue hardship by the taxpayer: .

Provided, That such other form of identification shall be prescribed by rule in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(h) "Wholesaler" or "distributor" means any person or entity engaged in the wholesale distribution of charitable raffle boards or games or similar boards or devices, as defined by the commissioner, and licensed under the provisions of this article, to distribute said devices to charitable raffle boards or games retailers as defined in this article. It also includes anyone who is engaged in the manufacturing, packaging, preparing or repackaging of charitable raffle boards or games for distribution in this state: Provided, That no license taxes or other fees provided for in this section may be charged to any newspaper or other printing or duplicating operation not regularly engaged in the business of manufacturing, packaging, preparing or repackaging charitable raffle boards or games where the gross sales of such printing or duplicating operation from such activity does not exceed 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; state identification and inspection stamps;
penalties.
(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.
(b) Wholesalers and distributors shall also pay a fee of twenty cents on each dollar of retail value of each charitable raffle board or games game sold to a retailer before the first day of July, two thousand one. Effective the first day of July, two thousand one, wholesalers and distributors shall pay a fee of one hundred percent 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.
(c) 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: Provided, That effective the first day of July, two thousand one, eighty percent of the fees collected on charitable raffle boards and games sold shall be deposited into the veterans lottery fund created under the authority of section nine-a, article twenty-two, chapter twenty-nine of this code.

(d) No raffle board or game may be sold, bartered, traded or given by a wholesaler or distributor for use in this state or played in this state unless the retail value fee has been paid. Proof of payment of the retail value fee is evidenced by affixing a state identification and inspection stamp to the board or game or the packaging of boards or games.
(e) The commissioner shall establish, by emergency and legislative rules proposed for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, a method of distributing, affixing and using identification and inspection stamps on raffle boards and games. Identification and inspection stamps shall be affixed to raffle boards and games in a manner to assure reasonable inspection without obstruction. Any raffle board or game which is enclosed or packaged in protective material to seal the package and prevent tampering with the board or game shall have the stamp or stamps affixed in a manor that allows the stamp or stamps to be readily visible for inspection without removing the protective covering. The commissioner may authorize a manufacturer or distributor to print the identification and inspection stamp numbers of all raffle boards or games contained in the package on the outside of the package or inside the protective covering.
(f) The commissioner may charge wholesalers and distributers an amount reasonably expected to cover the cost of administrating the identification and inspection stamp program.

(g) If any person commits any of the following acts he or she is in violation of this article:
(1) Makes any false entry upon an invoice, package or container of raffle boards or games required to be made under the provisions of this article or, with intent to evade the fee imposed by this article, presents any such false entry for the inspection of the commissioner;
(2) Prevents or hinders the commissioner or his agents from making a full inspection of any place where raffle boards or games subject to the fee imposed by this state are sold or stored or prevents or hinders the full inspection of invoices, books, records or papers required to be kept under the provisions of this article;
(3) Sells raffle boards or games in this state without first affixing to each raffle board or game the identification and inspection stamp required to be affixed thereto by this article;
(4) Is a manufacturer, distributer or retailer in this state, and has in his or her possession raffle boards or games not bearing the stamps required by this section affixed thereto or, whoever fails to produce on demand by the commissioner invoices of all raffle boards or games purchased or received by him within the previous two years, unless upon satisfactory proof it is shown that such nonproduction is due to providential or other causes beyond his control;
(5) A manufacturer that sells raffle boards or games to any person in this state other than to a distributor or retailer or any person in this state other than a manufacturer or distributor that sells raffle boards or games to a retailer.
(6) A distributor who purchases unstamped raffle boards or games from the manufacturer and fails to pay the identification and inspection fee and the affix the required stamps; or
(7) Any person, firm or corporation, who is not a licensed manufacturer, distributor or retailer that has more than five raffle boards or games in his possession within the state not bearing the fee paid stamps of this state, such possession is presumed to be for the purpose of evading the payment of the fees imposed or due thereon.
(h) Whoever violates any of the provisions of this section or any lawful rule promulgated by the commissioner under authority of article ten of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than three hundred dollars nor more than five thousand dollars or confined in a county or regional jail for not more than one year, or both, in the discretion of the court.
(i) Whoever falsely or fraudulently makes, forges, alters or counterfeits any stamps prescribed, or defined, by the provisions of this article or its related rules, and any person who knowingly and willfully makes, causes to be made, purchases, receives or has in his or her possession, any device for forging or counterfeiting any stamp or meter impression, or has in his or her possession, any stamps not properly issued by the commissioner or his or her agent or deputy or tampers with or alters any stamping device authorized by the commissioner, or uses more than once any stamp provided for and required by this article for the purpose of evading the fee hereby imposed, is guilty of a felony and, upon conviction thereof, shall be sentenced to pay a fine of not less than five thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility for a term of not less than one year nor more than five years.
(j) Whenever the commissioner or any of his or her authorized agents, deputies or employees or any law-enforcement officer of this state discovers any raffle boards or games subject to the fee as provided by this article and upon which the fee has not been paid, the raffle boards or games are contraband, and shall be seized without a warrant. The seized raffle boards or games shall be forfeited to the state and sold by the commissioner within a reasonable time: Provided, That such seizure and sale shall not relieve any person from fine or imprisonment as provided herein for violation of any provisions of this article. The sale may be made in any county the tax commissioner determines most convenient and economical. Notice of the sale shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county wherein such seizure was made and the county wherein the sale is to take place. Notice shall be published at least five days prior to the sale. All fees and penalties collected under the provisions of this section shall be paid into the state treasury and treated as fees collected under this article.
(k) Magistrates shall have concurrent jurisdiction with any other courts having jurisdiction for the trial of all misdemeanors arising under this article.

§47-23-8. How fee paid; reports required; due date; records to be kept; inspection of records and stocks; examination of witnesses, summons, etc.

(a) The retail value fee imposed by section three of this article shall be paid by each licensed wholesaler or distributor to the commissioner on or before the twentieth day of April, July, October and January for the preceding three calendar months. The measure of the fee on the retail value of charitable raffle boards or games shall be determined by multiplying the total amount of the retail value of all charitable raffle boards and games sold by a wholesaler or distributor to retailers during the said each three- month period by twenty percent until the thirtieth day of June, two thousand one and by one hundred percent effective the first day of July, two thousand one. Said This fee shall be is in addition to any tax imposed pursuant to the provisions of article fifteen, chapter eleven of this code.
(b) All fees due and owing to the commissioner by reason of this article, if paid after the due dates required by this section, shall be are subject to the provisions of article ten, chapter eleven of this code.
(c) Each wholesaler or distributor shall provide with each quarterly payment of fees a return covering the business transacted in the previous three calendar months and providing such any other information as the commissioner may deem require necessary for the ascertainment or assessment of the fee imposed by this article. Such Each return shall be signed under penalty of perjury on such forms as the tax commissioner may prescribe. and the The wholesaler or distributor shall at the time of filing remit all fees owed or due.
(d) The returns prescribed herein are required, although a fee might not be due or no business transacted for the period covered by the return.
(e) Each person required to file a return under this article shall make and keep such all records as shall be prescribed by the commissioner that are necessary to substantiate the returns required by this article, including, but not limited to, invoices, serial numbers or other verification, inventories, receipts, disbursements and sales, for a period of time not less than three years.
(f) Unless otherwise permitted, in writing, by authority of the commissioner, each delivery ticket or invoice for each purchase or sale of charitable raffle boards or games must be recorded upon a serially numbered invoice showing the name and address of the seller and the purchaser, the point of delivery, the date, quantity and serial number. and The price of the product sold and the fee must be set out separately, on each delivery ticket or invoice. and such Each delivery ticket or invoice must contain any other reasonable information as required by the commissioner may require. These invoicing requirements also apply to cash sales. and a A person making such cash sales must maintain such all records as may be reasonably necessary to substantiate his or her return.
(g) In addition to the commissioner's powers set forth in section five, article ten, chapter eleven of this code, the commissioner shall have has the authority to inspect or examine the stock of charitable raffle boards and games kept in and upon the premises of any person where charitable raffle boards and games are placed, stored or sold,. and he or she The commissioner shall have has the authority to inspect or examine the records, books, papers and any equipment or records of manufacturers, wholesalers and distributors or any other person for the purpose of determining the quantity of charitable raffle boards and games acquired or disbursed to verify the truth and accuracy of any statement or return and to ascertain whether the fee imposed by this article has been properly paid.
(h) In addition to the commissioner's powers set forth in section five, article ten, chapter eleven of this code and as a further means of obtaining the records, books and papers of a manufacturer, wholesaler, distributor or any other person and ascertaining the amount of fees and returns due under this article, the commissioner shall have has the power to examine witnesses under oath;. and if If the witness shall fail or refuse at the request of the commissioner fails or refuses to grant the commissioner access to the books, records or papers, the commissioner shall certify the facts and names to the circuit court of the county having jurisdiction of the party. and such The court shall thereupon issue summons to such party to appear before the commissioner, on a date certain, at a place designated within the jurisdiction of such the court, on a day fixed, to be. The appearance may be continued as the occasion may require required for good cause shown. and Each party shall give such evidence and lay open for inspection such its books and papers as may be required for the purpose of ascertaining to ascertain the amount of fee and returns due, if any.

§47-23-10a. Civil remedies when retailer possesses charitable raffle boards and games not purchased from a wholesaler or distributor licensed under this article.

(a) Civil penalties remedies. -
A retailer who possesses charitable raffle boards and games that were not purchased from a wholesaler or distributor licensed under this article shall be subject to the following civil remedies:
(1) For a first offense, the retailer shall pay to the commissioner, a civil money penalty of not less than one hundred nor more than five hundred dollars for each charitable raffle board or game in the possession of the retailer that was not purchased from a wholesaler or distributor licensed under this article

.
(2) For a second and each subsequent offense, the retailer shall pay to the commissioner, a civil money penalty of not less than five hundred nor more than one thousand five hundred dollars for each charitable raffle board or game in the possession of the retailer that was not purchased from a wholesaler or distributor licensed under this article

.
(3) For a second offense, the retailer, in addition to paying the money penalty imposed in subdivision (2) of this subsection, shall have all licenses issued under article sixteen, chapter eleven of this code and article seven, chapter sixty of this code, for the place of business in which charitable raffle boards and games not purchased from a wholesaler or distributor licensed under this article

were found, suspended for a period of thirty consecutive days. The alcohol beverage control commissioner shall also suspend the licenses of a retailer upon receipt of the tax commissioner's certified order issued under this subdivision.
(4) For a third and each subsequent offense, the retailer, in addition to applying the money penalty imposed in subdivision (2) of this subsection shall have the business registration certificate issued under article twelve, chapter eleven of this code and the licenses issued under article sixteen, chapter eleven of this code and article seven, chapter sixty of this code for the place of business in which charitable raffle boards and games not purchased from a wholesaler or distributor licensed under this article

were found, suspended for a period of thirty consecutive days. The alcohol beverage control commissioner shall also suspend the licenses of a retailer upon receipt of the tax commissioner's certified order issued under this subsection. Additionally, any license issued under articles twenty and twenty-one of this chapter to the retailer to conduct charitable bingo games or raffles shall be suspended for a period of thirty consecutive days.
(b) Administrative procedures. -
(1) An order issued under this section by the tax commissioner shall be served by certified mail or in the manner provided in rule 4(d) of the West Virginia rules of civil procedure.
(2) A retailer may appeal an order of the tax commissioner issued under this section by filing a written protest with the tax commissioner, either in person or by certified mail, within twenty days after the licensee is served with a copy of the order.
(3) When a written protest is timely filed, the provisions of article five, chapter twenty-nine-a of this code shall apply. The tax commissioner may, by procedural rule, specify the form and content of a written protest.
(4) The burden of proof in any administrative or court proceeding is on the licensee to show cause why the order of the tax commissioner under this section should be modified, in whole or in part, or set aside.
(c) Deposit of money penalties. -
All money penalties imposed under this section and collected by the tax commissioner, shall be deposited into the general revenue fund of this state.