Senate Bill No. 543

(By Senators Burnette, Boley, Mitchell, Oliverio, Helmick and Rowe)

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[Introduced March 21, 2001; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend article ten, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one-a, relating to owning or operating "gray gambling machines"; creating misdemeanor and felony penalties; seizure and forfeiture; and exceptions.

Be it enacted by the Legislature of West Virginia:

That article ten, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section one-a, to read as follows:

ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.

 §61-10-1a. Gray gambling machines unlawful; penalties; seizure and forfeiture; exceptions.
(a) For purposes of this section, "gray gambling machine" means any video terminal or device, except as provided in subsection (g) of this section, upon which a person can, in exchange for payment of a consideration, play: (1) A game of chance; (2) a game where the outcome is predominantly determined by chance; (3) a video poker game; or (4) any other kind of video playing card game, and which awards free-play credits and has any mechanical or electronic knock-off button or any other device, feature or design whatsoever allowing those free-play credits to be cleared by any means whatsoever, other than playing additional games using those free-play credits.
(b) It is unlawful for a person to own, operate, maintain or allow the use of a gray gambling machine for hire, gain or reward.
(c) It is unlawful for a person to aid or abet a person in owning, operating, maintaining or allowing the use of a gray gambling machine for hire, gain or reward.
(d) It is unlawful for a person who has control or the right of control over premises to own, operate, maintain or allow the use of a gray gambling machine for hire, gain or reward on those premises.
(e) It is unlawful for a corporation to own, operate, maintain or allow the use of a gray gambling machine for hire, gain or reward.
(f) A person convicted of a first offense under subsection (b), (c) or (d) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or imprisoned in the county or regional jail not more than one year, or both fined and imprisoned. A person convicted of a second or subsequent offense under subsection (b), (c) or (d) of this section is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars, or imprisoned in a state correctional facility not less than one nor more than three years, or both fined and imprisoned.
(g) A corporation convicted under subsection (e) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined as follows: (1) Ten thousand dollars for a first offense conviction ; (2) twenty-five thousand dollars for a second offense conviction ; and (3) fifty thousand dollars for a third or subsequent offense conviction .
(h) A gray gambling machine, other equipment, money or other things of value possessed or used in violation of the provisions of subsection (b), (c), (d) or (e) of this section shall be seized and forfeited to the county in which the seizure was made. Any property so seized which can be used for a lawful purpose may, at the discretion of the court, be used by the county or sold and the proceeds paid into the county treasury. Any property seized which cannot be used for a lawful purpose shall be destroyed. All gaming devices and other equipment seized shall be stored in a manner to protect it from damage and loss until such time as a court of competent jurisdiction shall order its destruction, sale or return. Any item ordered to be returned shall be promptly returned at no cost to the lawful owner.
(i) The provisions of subsection (b), (c), (d) or (e) of this section do not apply to the following:
(1) Playing an amusement device or machine which allows a player to engage in a game which predominantly requires skill rather than chance, confers only an immediate right of replay which is not exchangeable for something of value other than the privilege of immediate replay, and does not contain a method or device by which the privilege of immediate replay may be canceled or revoked;
(2) Pari-mutuel system of wagering upon the results of any horse or dog race as authorized by article twenty-three, chapter nineteen of this code;
(3) The state operated lottery as authorized by article twenty-two, chapter twenty-nine of this code;
(4) Video lottery games as authorized by article twenty-two-a, chapter twenty-nine of this code;
(5) Charitable bingo and raffles as authorized by articles twenty and twenty-one, chapter forty-seven of this code; or
(6) Automatic weighing, measuring, music and vending machines which are so constructed as to give a certain uniform and fair return in value or services for each coin deposited therein and in which there is no element of chance.


NOTE: The purpose of this bill is to make it illegal to own or operate "gray gambling machines". The bill also provides for seizure and forfeiture of the machines.

This section is new; therefore, strike-throughs and underscoring have been omitted.