Senate Bill No. 689
(By Senator Bailey)
____________
[Introduced February 18, 2002; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to repeal articles twenty, twenty-one and twenty-three,
chapter forty-seven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
section one, article two, chapter five-f of said code; and to
further amend said code by adding thereto a new chapter,
designated chapter ten-a, all relating to creating charitable
gaming commission in department of administration; stating
legislative intent and findings; defining terms; creating
charitable gaming commission and charitable gaming commission
office; transferring administration of charitable bingo and
charitable raffles to commission; specifying composition,
qualifications, terms of office, removal, vacancies,
compensation, quorum, oath and bonding, powers and duties of
commissioners; providing for appointment of executive
director; qualifications, oath of office, bonding and salary; specifying powers and duties of executive director; providing
for transition rules and for severability; specifying
effective date; making technical corrections; repealing the
articles on charitable raffles and charitable bingo; setting
forth legislative intent; setting forth definitions; providing
who may engage in charitable gaming; license required to
engage in charitable gaming; license provisions; establishing
fees for licenses; establishing categories of licenses;
conditions to hold license; specifying duties and
responsibilities of licensees of charitable gaming; providing
that bingo games are open to the public; prohibiting alcoholic
beverages at bingo occasions; restrictions on licenses;
specifying certain conditions as a condition of licensure;
venue; authorizing the conduct of charitable raffles without
a license; setting license fee; specifying exemption from
taxes; providing for a super bingo license; setting forth
information required in an application for a charitable gaming
license; providing for amendment of charitable gaming license
under certain circumstances; allowing charitable gaming
licensees to adopt rules; providing limitations on awarding of
prizes; providing limits on compensation and the number of
employees which a licensee may hire; providing for legislative
rule; providing that the charitable gaming commission may
propose rules relating to compensation and the number of employees; allowing concessions; setting forth permitted uses
of proceeds from charitable gaming; requiring licensees to
maintain certain records; audit of records; allowing a
licensee to advertise charitable gaming occasions; proceeds of
state fair charitable games; state fair charitable gaming
license; state fair may adopt rules regarding charitable
gaming; rules of the charitable gaming commission; requiring
the filing of certain reports; specifying that charitable
gaming license applications are open to public inspection;
providing for county option election; specifying form;
specifying prohibited acts by convicted individuals and
corporations; fraud illegal; specifying criminal acts and
specifying criminal penalties; obtaining license fraudulently
is illegal; setting forth certain administrative remedies;
civil penalties; fees; specifying administrative procedures;
setting forth restrictions on use of bingo and raffle
equipment; requiring certain operators of charitable bingo
games to provide smoking and nonsmoking sections; establishing
fees; setting forth restrictions; requiring surety bonds;
release of surety; new bond; requirement of wholesalers and
distributors to be licensed to do business in this state;
resident agent requirement; how fee paid; requiring reports;
due dates; records; inspection of records and stocks;
examination of witnesses; penalties; offenses; seizure of illegal boards and games; disposition; transportation of
charitable raffle boards and games; forfeitures and sales of
charitable raffle boards, charitable raffle games and
equipment; criminal sanctions; administration; rulemaking;
requiring verification; setting forth effective dates; and
providing for severability.
Be it enacted by the Legislature of West Virginia:
That articles twenty, twenty-one and twenty-three, chapter
forty-seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that section one, article two,
chapter five-f of said code be amended and reenacted; and that said
code be further amended by adding thereto a new chapter, designated
chapter ten-a, all to read as follows:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board are hereby transferred to
and incorporated in and the agencies and boards shall be
administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided for
in article twenty-nine, chapter eighteen of this code and article
six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for in article twenty-three,
chapter twenty-nine of this code;
(8) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(9) Division of personnel provided for in article six, chapter
twenty-nine of this code;
(10) The West Virginia ethics commission provided for in
article two, chapter six-b of this code;
(11) Consolidated public retirement board provided for in
article ten-d, chapter five of this code; and
(12) The child support enforcement division designated in chapter forty-eight-a of this code; and
(13) The charitable gaming commission created in article one,
chapter ten-a.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are hereby abolished.
For purposes of administrative support and liaison with the office
of the governor, the following agencies and boards, including all
allied, advisory and affiliated entities shall be are grouped under
three bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which shall include:
(i) Occupational safety and health review commission provided
for in article three-a, chapter twenty-one of this code; and
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for
in article one, chapter twenty-two-a of this code. The following
boards are transferred to the office of miners' health, safety and
training for purposes of administrative support and liaison with
the office of the governor:
(i) Board of coal mine health and safety and coal mine safety
and technical review committee provided for in article six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this code;
and
(iii) Mine inspectors' examining board provided for in article
nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in
article two, chapter five-b of this code, which shall include:
(i) Enterprise zone authority provided for in article two-b,
chapter five-b of this code;
(ii) (i) Economic development authority provided for in
article fifteen, chapter thirty-one of this code; and
(iii ii) Tourism commission provided for in article two,
chapter five-b of this code and the office of the tourism
commissioner;
(D) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for in
article eight, chapter twenty-nine of this code shall be under the
division of natural resources;
(E) Division of forestry provided for in article one-a,
chapter nineteen of this code;
(F) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(G) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article one,
chapter twenty-one-a of this code;
(3) Bureau of environment:
(A) Air quality board provided for in article two, chapter
twenty-two-b of this code;
(B) Solid waste management board provided for in article
three, chapter twenty-two-c of this code;
(C) Environmental quality board, or its successor board,
provided for in article three, chapter twenty-two-b of this code;
(D) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(E) Surface mine board provided for in article four, chapter
twenty-two-b of this code;
(F) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(G) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code; and
(H) Oil and gas conservation commission provided for in
article nine, chapter twenty-two-c of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board are hereby transferred to and incorporated in and of the agencies or boards shall be
administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for in article
five, chapter ten of this code;
(3) University of West Virginia board of trustees provided for
in article two, chapter eighteen-b of this code;
(4) Board of directors of the state college system provided
for in article three, chapter eighteen-b of this code;
(5) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(6) Division of culture and history provided for in article
one, chapter twenty-nine of this code; and
(7) Division of rehabilitation services provided for in
section two, article ten-a, chapter eighteen of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board are hereby transferred to
and incorporated in and of the agencies or boards shall be
administered as a part of the department of health and human
resources:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau of for public health provided for in article one,
chapter sixteen of this code;
(4) Office of emergency medical services and advisory council
thereto provided for in article four-c, chapter sixteen of this
code;
(5) Health care cost review authority provided for in article
twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty, chapter
twenty-nine of this code; and
(8) The child support enforcement division designated in
chapter forty-eight-a of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board are hereby transferred to
and incorporated in and of the agencies or boards shall be
administered as a part of the department of military affairs and
public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen
of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said this chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter
twenty-five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority provided
for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated with any such agency or board of the agencies or boards
are hereby transferred to and incorporated in and shall be
administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code. and
(9) The child support enforcement division as designated in
chapter forty-eight-a of this code
(g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds
associated with any such agency or board are hereby transferred to
and incorporated in and of the agencies or boards shall be
administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(h) Except for such the powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency shall not be
are not affected by the enactment of this chapter.
(i) Except for such the powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of such the boards shall not be are not
affected by the enactment of this chapter and all boards which are
appellate bodies or were otherwise established to be independent
decision makers shall do not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(j) Any department previously transferred to and incorporated
in a department created in section two, article one of this chapter
by prior enactment of this section in chapter three, acts of the
Legislature, first extraordinary session, one thousand nine hundred
eighty-nine, and subsequent amendments thereto, shall henceforth be
read, construed and understood to mean be referred to as a division
of the appropriate department so created. Wherever elsewhere in
this code, in any act, in general or other law, in any rule or
regulation, or in any ordinance, resolution or order, reference is
made to any department transferred to and incorporated in a
department created in section two, article one of this chapter,
such the reference shall henceforth be read, construed and
understood to mean means a division of the appropriate department
so created, and any such reference elsewhere to a division of a
department so transferred and incorporated shall henceforth be read, construed and understood to mean means a section of the
appropriate division of the department so created.
(k) When an agency, board or commission is transferred under
a bureau or agency other than a department headed by a secretary
pursuant to this section, that transfer shall be construed to be
is solely for purposes of administrative support and liaison with
the office of the governor, a department secretary or a bureau.
The bureaus created by the Legislature upon the abolishment of the
department of commerce, labor and environmental resources in the
year one thousand nine hundred ninety-four shall be headed by a
commissioner or other statutory officer of an agency within that
bureau. Nothing in this section shall be construed to extend
extends the powers of department secretaries under section two of
this article to any person other than a department secretary and
nothing herein shall be construed to limit or abridge in this
section limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code. Upon the
abolishment of the office of secretary of the department of
commerce, labor and environmental resources, the governor may
appoint a statutory officer serving functions formerly within that
department to a position which was filled by the secretary ex
officio.
CHAPTER 10A. CHARITABLE GAMING.
ARTICLE 1. CHARITABLE GAMING COMMISSION.
§10A-1-1. Legislative findings and intent.
The Legislature finds and declares that the purpose of this
article is to establish a charitable gaming commission to oversee
charitable bingo and raffles in this state under the supervision of
an executive director. The members of the charitable gaming
commission are appointed by the governor. The executive director
of the commission is appointed by the commission.
The Legislature also intends that the charitable gaming
commission propose rules with regard to making charitable gaming
available to handicapped persons, updating charitable gaming as new
technology becomes available and assuring that charitable gaming
in this state remains competitive with gaming operations in other
states.
The Legislature further intends that the charitable gaming
commission provide broad oversight and regulation of all charitable
gaming in this state, including development of comprehensive
educational programs, including sample forms and training classes,
for the persons engaged in charitable gaming.
§10A-1-2. Definitions.
(a) "Charitable gaming" includes charitable bingo and
charitable raffles as authorized in article two, chapter ten-a of
this code.
(b) "Charitable gaming commission" or "commission" means the
charitable gaming commission created by this article.
(c) "Executive director" or "director" means the individual
appointed by the commission to provide management and
administration necessary to direct the charitable gaming
commission.
§10A-1-3. Charitable gaming commission created; composition;
qualifications; appointment; terms of office;
member's removal; vacancies; compensation and
expenses; quorum; oath and bond.
(a) Commission created. -- There is created within the
department of administration a state charitable gaming commission,
which consists of seven members, all residents and citizens of this
state. Commission members are appointed by the governor, by and
with the advice and consent of the Senate. No more than four
members of the commission may belong to the same political party.
At least one person shall be appointed from each congressional
district. No person convicted of a felony, a crime involving moral
turpitude, or a gambling offense is eligible for appointment nor
serve as a commissioner. One member shall represent volunteer fire
departments; one member shall represent fraternal organizations;
one member shall represent churches; one member shall represent
veteran's organizations; and one member shall represent the
citizens of this state. In making these appointments, the governor
shall state at the time of the appointment which category his or
her appointment is for. The governor shall also appoint one member from a list of three names submitted by the president of the Senate
and one member from a list of three names submitted by the speaker
of the House of Delegates.
(b) Terms. -- Members serve overlapping terms of four years,
and until their successors have been appointed and have qualified.
However, the terms of members first appointed expire as designated
by the governor at the time of appointment, one for the term ending
the thirtieth day of June, two thousand two, two for the term
ending the thirtieth day of June, two thousand three, two for the
term ending the thirtieth day of June, two thousand four and two
for the term ending the thirtieth day of June, two thousand five.
Members are eligible for successive appointments to the commission.
(c) Removal. -- The governor may remove any commission member
as provided in section four, article six, chapter six of this code.
Vacancies are filled in the same manner as the original appointment
but only for the remainder of the term.
(d) Oath and bond. -- Before entering upon the discharge of
the duties as commissioner, each commissioner shall take and
subscribe to the oath of office prescribed in section five, article
IV of the constitution of West Virginia and shall give the bond
required by section three, article two, chapter five-f of this
code. The executed oath and bond shall be filed in the office of
the secretary of state.
(e) Chairperson. -- Annually, the commission shall elect a chairperson from its membership who serves during the fiscal year
of this state.
(f) Compensation. -- The commission shall pay each member the
same compensation as is paid to members of the Legislature for
their interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or
portion of a day engaged in the discharge of official duties and
shall reimburse each member for actual and necessary expenses
incurred in the discharge of official duties. The per mile rate to
be reimbursed is the same rate as authorized for members of the
Legislature. All payments shall be made from funds appropriated by
the Legislature for operation of the charitable gaming commission.
(g) Meetings. -- The commission shall meet at least once each
calendar month. Additional meetings may be held at the call of the
chairperson, executive director or majority of the commission
members.
(h) Quorum. -- A majority of the members is a quorum for the
transaction of business, and all actions require a majority vote of
the members present.
§10A-1-4. Charitable gaming commission; powers and duties.
(a) Purpose. -- The commission shall carry on a continuous
study and investigation of charitable gaming throughout this state
and advise and assist the executive director of the state
charitable gaming commission. The commission shall also generally oversee charitable gaming and shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code, to regulate charitable gaming
in this state.
(b) Powers and duties. -- The commission has authority to:
(1) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, it believes are reasonable and necessary to implement,
explain, administer or enforce the provisions of this article;
(2) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, with regard to making charitable gaming available to
handicapped persons, updating charitable gaming as new technology
becomes available and assuring that charitable gaming in this state
remains competitive with gaming operations in other states;
(2) Adopt an official seal;
(3) Maintain a principal office;
(4) Prescribe a schedule of fees and charges;
(5) Sue and be sued;
(6) Lease, rent, acquire, purchase, own, hold, construct,
equip, maintain, operate, sell, encumber and assign rights of any
property, real or personal, consistent with the objectives of the
commission as set forth in this article;
(7) Hold hearings on any matter of concern to the commission relating to charitable gaming, subpoena witnesses, administer
oaths, take testimony, require the production of evidence and
documentary evidence and designate hearing examiners and employees
to so act. The provisions of article five, chapter twenty-nine-a
of this code apply to contested cases; and
(8) Make and enter into all agreements and do all acts
necessary or incidental to the performance of its duties and the
exercise of its powers under this article.
§10A-1-5. Executive director; appointment; oath and bond;
background; qualifications; compensation
.
(a) Office created. -- There is created the position of
executive director of the commission whose duties include the
management and administration of the state charitable gaming
commission office.
(b) Appointment. -- The commission shall appoint the executive
director. The governor may remove the director as provided in
section four, article six, chapter six of this code. Before
entering upon the discharge of the duties as director, the director
shall take and subscribe to the oath of office prescribed in
section five, article IV of the constitution of West Virginia and
shall give the bond required by section three, article two, chapter
five-f of this code. The executed oath and bond shall be filed in
the office of the secretary of state.
(c) Background. -- The director must be of sound moral character and have a good reputation, particularly as a person of
honesty and integrity and qualified by training and experience to
oversee, police and regulate charitable gaming operations in this
state. The director must favorably pass a thorough background
investigation prior to being appointed. No person may be appointed
as director who has been convicted of a felony, a crime involving
moral turpitude or a gambling offense.
(d) Residency. -- The director must be a citizen of the United
States and must become a resident of this state within ninety days
of appointment, if not a resident at the time of appointment.
(e) Position is full-time. -- The director serves on a
full-time basis for five year terms and must be qualified by
training and experience to direct the operations of the charitable
gaming commission. The director may not hold any other political
office in this state, either by election or appointment, while
serving as director. The director may not engage in any other
profession or occupation for compensation or be an officer of any
organization that holds a license under article two, chapter ten-a
of this code.
(f) Compensation. -- The director's annual salary is sixty
thousand dollars. The director shall be paid actual and necessary
traveling expenses incurred in performance of the official duties
of the office as provided in the governor's travel rules.
(g) The director and the director's executive secretary are ineligible for civil service coverage as provided in section four,
article six, chapter twenty-nine of this code.
§10A-1-6. Executive director; powers and duties; deputy directors;
hiring of staff; civil service coverage; submission
of proposed appropriations; reports; enforcement
agents; assistance of other officials
.
(a) Powers. -- The executive director has the authority to:
(1) Appoint, with the approval of the commission, a deputy
director who serves at the will and pleasure of the director at an
annual salary established by the commission. The deputy director
is not eligible for civil service coverage as provided in section
four, article six, chapter twenty-nine of this code;
(2) Hire, pursuant to the approval of the commission,
accounting, clerical, legal, technical and administrative personnel
necessary to carry out the provisions of this article. No person
may be employed by the charitable gaming commission who has been
convicted of a felony, a crime involving moral turpitude or a
gambling offense. Each person employed by the commission shall
execute an authorization to allow an investigation of that person's
background.
(b) Civil service. -- All employees of the commission, except
as otherwise expressly provided in this article, are in the
classified service pursuant to the provisions of article six,
chapter twenty-nine of this code.
(c) Budget. -- The director shall, pursuant to the approval of
the commission, prepare and submit the annual proposed
appropriations for the commission to the governor.
(d) Reports. -- The director shall, no later than the
twentieth day of each regular session of the Legislature, provide
to the Legislature, the commission, the governor and the secretary
of administration an annual report focused upon subjects of
interest concerning operations and functions of the commission.
The director shall make other reports and recommendations as may be
required by the governor or the secretary of administration.
(e) Enforcement agents. -- The director may designate
employees the commission believes necessary to act as enforcement
agents. The agents are authorized to investigate complaints made
to the commission or the charitable gaming commission office
concerning possible violation of the provisions of article two or
three, chapter ten-a of this code, and to determine whether to
recommend the appropriate action. If it is determined that
criminal prosecution is necessary, an agent, after approval of the
director, is to make the recommendation to the prosecuting attorney
in the county where the violation occurred or to any appropriate
law-enforcement agency.
(f) Assistance of other officials. -- (1) The director may
request assistance from the attorney general, the state police and
any other law-enforcement agency. These officers and agencies shall furnish the director with information in their possession
that may tend to assure the security, honesty, fairness and
integrity in the operation and administration of charitable gaming
as they may have in their possession, including, but not limited
to, manual or computerized information and data.
§10A-1-7. Transition rules.
(a) Notwithstanding any provision of this code to the
contrary, after the thirtieth day of June, two thousand two, all
fees, taxes and penalties collected under article three, of this
chapter shall be deposited in a special revenue account established
in the state treasury to be appropriated by the Legislature. Funds
in this special revenue account shall be used to support the
charitable gaming commission.
(b) Effective the first day of July, two thousand two, four
investigators and four other employees of the criminal
investigation section of the tax division whose compensation was
paid from fees, taxes and penalties collected under articles
twenty-one, twenty-two and twenty-three, chapter forty-seven of
this code, shall be transferred to the charitable gaming
commission.
§10A-1-8. 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, the unconstitutionality or invalidity 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 severable.
§10A-1-9. Effective date.
The provisions of this article take effect on the first day of
June, two thousand two, and apply to charitable gaming conducted
after the thirtieth day of June.
ARTICLE 2. GUIDELINES FOR CHARITABLE GAMING.
§10A-2-1. Legislative intent.
The Legislature finds and declares that many fraternal and
community organizations, volunteer fire departments, churches and
other charitable or public service organizations perform an
important role and benefit a number of the citizens of this state
with respect to: (1) Assisting them to establish themselves in
life as contributing members of society through education or
religion; (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 the public, or a sub group of the
public about issues of public concern; (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; and (7)
providing or supporting nonprofit cultural or artistic activities.
The Legislature, in recognition of the foregoing and in
recognition of the need charitable and public service organizations
have for a practicable way of raising funds, declares its intent to
grant the privilege of holding bingo games and raffles to those
organizations which qualify for a license as provided below, and to
make those games available to persons with disabilities.
§10A-2-2. Definitions.
For purposes of this article, unless specified otherwise:
(1) "Bingo" means the game in which participants pay
consideration for the use of one or more faces or cards bearing
several rows of numbers in which no two faces 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 faces or cards which they are using. The player
who first announces that he or she has marked or covered a
predetermined sequence or pattern which had been preannounced for
that game is, upon verification that he or she has marked or
covered the predetermined sequence or pattern, declared the winner
of that game.
(2) "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.
(3) "Charitable or public service activity or endeavor" means
any bona fide activity or endeavor which directly benefits a number
of people by:
(A) Assisting them to establish themselves in life as
contributing members of society through education or religion; or
(B) Relieving them from disease, distress, suffering,
constraint or the effects of poverty;
(C) Increasing their comprehension of and devotion to the
principles upon which this nation was founded and to the principles
of good citizenship;
(D) 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;
(E) By lessening the burdens borne by government or
voluntarily supporting, augmenting or supplementing services which
government would normally render to the people;
(F) Providing or supporting nonprofit community activities for
youth, senior citizens or the disabled;
(G) Providing or supporting nonprofit cultural or artistic
activities; or
(H) Providing scholarships for a person or persons considered
worthy by the organization.
(4) "Charitable or public service organization" means a bona
fide, not-for-profit, tax-exempt organization which is benevolent,
educational, philanthropic, humane, patriotic, civic, religious,
fraternal or an eleemosynary incorporated or unincorporated
association or organization; or a volunteer fire department, rescue
unit or other similar volunteer community service organization or
association; but does not include any nonprofit association or
organization, whether incorporated or not, which is organized
primarily for the purposes of influencing legislation or supporting
or promoting the campaign of any candidate for public office.
An organization or association is tax-exempt if it is, and has
received from the Internal Revenue Service a determination letter
that is currently in effect stating that the organization is,
exempt from federal income taxation under subsection 501(a) and
described in subsection 501(c)(3), 501(c)(4), 501(c)(8),
501(c)(10), 501(c)(19) or 501(d) of the Internal Revenue Code; or
is exempt from income taxes under subsection 527(a) of said code:
Provided, That tax-exempt organizations or associations are not
limited to those organizations or associations described under
subsection 501(a) and described in subsection 501(c)(3), 501(c)(4),
501(c)(8), 501(c)(10), 501(c)(19) or 501(d) of the Internal Revenue
Code. Those organizations are, for the purposes of this article, charitable or public service organizations. Any other organization
shall, if required by the charitable gaming commission, demonstrate
that it is a charitable or public service organization. An
organization or association does not require a determination letter
from the Internal Revenue Service to be a tax-exempt organization
for the purposes of this article.
(5) "Charitable gaming" means and includes the licensed
conduct of charitable bingo or charitable raffles or both
charitable bingo and charitable raffles.
(6) "Commission" means the charitable gaming commission.
(7) "Conduct" means to direct the actual playing of a bingo
game by activities including, but not limited to, handing out bingo
supplies, collecting fees, drawing the numbers, announcing the
numbers, posting the numbers, verifying winners and awarding prizes
or to direct the actual holding of a raffle by activities
including, but not limited to, selling chances, drawing the winning
numbers or names, announcing the winning numbers or names, posting
the winning numbers or names, verifying winners and awarding
prizes.
(8) "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.
(9) "Joint raffle occasion" means a single gathering or
session at which a series of one or more raffles is conducted by two or more licensees.
(10) "Licensee" means any organization or association granted
any type of charitable gaming license pursuant to the provisions of
this article.
(11) "Manager-operator" means and includes any individual who
is charged with the overall responsibility for the licensee's
charitable gaming operation. This responsibility includes, but is
not limited to: (A) Maintaining the fiscal integrity of the
charitable gaming operation and the proper maintenance, accounting
for and handling of all funds and revenues derived therefrom and of
all accounts related thereto; (B) the timely filing of all required
financial and operational reports; (C) obtaining required financial
compilations, reviews or audits; (D) maintaining the integrity of
the gaming process and fair gaming operations; (E) assuring the
prompt payment of gaming prizes which have been legitimately won;
(F) assuring that all gaming operations are free of fraud or
misrepresentation; (G) scheduling charitable gaming operations; (H)
supervising charitable gaming operations; (I) supervising volunteer
and paid workers at the charitable gaming occasion; (J) supervising
the preparation of any required daily report forms; and (K) any
other managerial duties that may be performed in connection with
the conduct of charitable gaming.
(l2) "Operator" means any individual, either volunteer or
paid, who is responsible only for specific duties in connection with the actual conduct of charitable gaming occasions.
(13) "Patron" means any individual who attends a charitable
gaming occasion other than an individual who is participating in
the conduct of the occasion, regardless whether the individual is
charged an entrance fee or plays any charitable games.
(14) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership or
other nongovernmental entity or institution.
(15) "Qualified recipient organization" means a bona fide,
not-for-profit, tax-exempt, incorporated or unincorporated
association or organization; or a war veterans association or any
other association to which a person making donations or
contributions is entitled to deduct the amount of his or her
donation made to the organization as a charitable donation for
purposes of federal income taxation; or a volunteer fire
department, rescue unit or other similar volunteer community
service organization or association; where the foregoing function
exclusively to directly benefit a number of people as provided in
subparagraphs (A) through (H), subdivision (3) of this section.
"Qualified recipient organization" includes without limitation any
licensee which is organized and functions exclusively as a bona
fide, not-for-profit, tax-exempt organization and functions
exclusively as provided in this subdivision. "Qualified recipient
organization" also means and includes churches and the government of the United States and the state of West Virginia and its
political subdivisions. "Qualified recipient organization" also
means and includes any person who has suffered or is suffering a
catastrophic loss, such as victims of floods, fire or catastrophic
illnesses or the provision of a scholarship or scholarships.
"Qualified recipient organization" also includes any person
approved or designated as such by the charitable gaming commission.
In the event the commission determines in writing that a licensee
has made an expenditure that is not to a qualified recipient, if
that licensee, within ninety days following written notification by
the commission of the disallowed expenditure contributes or donates
a sum equal to one hundred ten percent of the disallowed
expenditure to a qualified recipient organization, no further
action may be taken against the licensee for the disallowed
expenditure, as long as this sum is donated from resources other
than those derived from charitable gaming.
(16) "Qualified expenditure for charitable or public service
purposes" means any expenditure of moneys derived from a licensee
for: (A) Prizes and for the reasonable, necessary and actual
expenses incurred in connection with the conduct of charitable
gaming occasions, including, but not limited to: Custodial
services, rent, utilities, advertising, equipment and supplies to
conduct charitable gaming events, security personnel, promotional
supplies, workers or operators required to operate the charitable gaming event and child care services; (B) expenses directly related
to the existence and operation of the licensee charitable or public
service organization where these expenses are directly related to
the charitable or public service purpose directly underlying the
tax-exempt status of the licensee organization, including, but not
limited to: (i) The annual cost of housing the licensee
organization, including, but not limited to, rent, mortgage
payments, maintenance and repairs; (ii) property, casualty or
liability insurance for the licensee organization; (iii) on-going
utility expenses; (iv) printing, postage and mail expense; (v)
workers; and (vi) any other expense incurred by the licensee
organization directly in furtherance of its charitable or public
service purpose. Except, that no more than sixty percent of the
proceeds from charitable gaming remaining after the expenses set
forth in clause (A) of this subdivision may be expended for the
purposes set forth in clause (B) of this subdivision.
(17) "Raffle" means a game involving the selling of chances to
participate in the game entitling the player purchasing the chance
or chances the opportunity to win a prize or prizes.
(18) "Venue" means the location in which bingo occasions are
held.
§10A-2-3. Who may engage in charitable gaming; application for
license; licenses not transferable.
Any charitable or public service organization which has been in existence in this state two years prior to filing an application
for a charitable gaming license issued pursuant to section four or
five of this article may hold charitable gaming occasions in
accordance with the provisions of this article during the time it
holds a valid license. Except, that a separate license is required
for charitable bingo and for charitable raffles.
Application for a charitable bingo or a charitable raffle
license shall be made to the charitable gaming commission and must
be on a form which is supplied by the commission. The application
must contain the information required by section seven of this
article and any other information which the commissioner considers
necessary. The application must state whether it is for a
charitable bingo license or a charitable raffle license or for a
charitable bingo license and a charitable raffle license. An
application must be filed not less than sixty days before the date
when the applicant intends to hold its first charitable gaming
occasion. No charitable gaming occasion may be held until an
application filed in accordance with this article has been approved
by the commission, and the license has been received. The
commission may approve an application in less than sixty days and
shall send the applicant its license within five days after
approval of the application.
If an applicant for a charitable gaming license has not
received a license or a letter denying a license within sixty days from the date the commission receives the application, as evidenced
by a cancelled check or other acceptable evidence the application
fees have been remitted and a return receipt for certified mail
showing that the application and application fee were in fact
mailed, an applicant may hold those charitable gaming events the
applicant applied for a license to hold.
No license issued pursuant to this article may be transferred.
§10A-2-4. 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. 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 commission shall propose a legislative rule in
accordance with the provisions of chapter twenty-nine-a of this
code which provides the manner of determining to which
organization, whether the parent organization, an affiliate or an
auxiliary, the one license allowed under this section is granted.
An annual charitable gaming license is valid for one year from the
date of issuance. If the charitable gaming commission issues licenses on a calendar year basis it shall prorate the license fee.
An annual charitable bingo license entitles only the licensee to
hold no more than one hundred four bingo occasions per 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 twelve hours duration.
A licensee shall display its annual charitable bingo license
or charitable raffle license, or a copy, conspicuously at the
location where the charitable gaming occasion is held.
No organizations may hold a joint charitable gaming occasion
under any annual licenses.
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.
§10A-2-5. Bingo occasions open to public; prohibition of alcoholic
beverages at bingo occasions.
All bingo occasions shall be open to the general public.
However, a licensee may not 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. 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 the
individual. Nothing contained in this section prohibits junior volunteer firefighters sixteen years of age or older from assisting
the volunteer fire company of which the junior firefighter is a
member in the conduct of an event under this article where the
junior firefighter is supervised by a senior member of the same
volunteer fire company who is over the age of twenty-one years. In
no case may the sale or the consumption of alcoholic beverages or
nonintoxicating beer be permitted in any area where charitable
bingo is conducted.
§10A-2-6. Limited occasion bingo license; conditions on holding of
games.
A limited occasion license is valid only for the time
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 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. 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 commission shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
providing for 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.
§10A-2-7. Venue.
Any charitable or public service organization or any of its
auxiliaries or other organizations otherwise affiliated with it
possessing an annual or limited occasion bingo license or a super
bingo license may only conduct a bingo occasion in the county in
which the organization is principally located.
Any licensee which, in good faith, finds itself unable to
comply with this requirement shall apply to the commission for
permission to conduct a bingo occasion in a location other than the county in which the organization is principally located. However,
the location shall be in a contiguous county, or, if not in a
contiguous county, and not in the county where the licensee
organization has its principal location, the location of the
proposed bingo occasion may be no more than thirty air miles from
the county in which the organization is principally located. The
application shall be made on a form provided by the commission and
shall include the particulars of the requested change and the
reasons for the change. The application must be filed no later
than thirty days before any scheduled bingo occasion.
For purposes of this section, the principal location of a
licensee is the address of the licensee shown on the licensee's
West Virginia business registration certificate.
§10A-2-8. Limited occasion raffle license; conditions on holding
of raffles.
Two or more organizations may hold a joint raffle occasion
provided each participating organization has been granted a limited
occasion raffle license for the jointly held occasion. However, no
licensee which holds an annual license may obtain more than one
limited occasion license.
A limited occasion license is valid only for the time period
specified in the application and entitles only the licensee to hold
two raffle occasions during the time so specified which may not
exceed six months from the date of issuance of the limited occasion license.
Subject to the limitations set forth in this section for
charitable or public service organization having an annual license,
a charitable or public service organization and all of its
auxiliaries or other associations or organizations otherwise
affiliated with it, may be granted only three limited occasion
licenses per year in the aggregate. 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 commission shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code, providing the manner for
determining 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 raffle occasion is held.
§10A-2-9. Authorizing the conduct of certain raffles without a
license.
Notwithstanding the provisions of section three 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 authorized to conduct raffles without compliance with the licensing provisions of this article. However, any prize
awarded in any single raffle at a raffle occasion may not exceed in
value the sum of three thousand dollars and the cumulative gross
proceeds derived from the conduct of raffle occasions by any
charitable or public service organization may not exceed fifteen
thousand dollars during any calendar year. Any organization is not
subject to the record keeping provisions of section eighteen of
this article but shall maintain a separate accounting for the
operation of raffles. All records required by this section must be
maintained for at least three calendar years and made available for
reasonable inspection by the commissioner.
§10A-2-10. License fee and exemption from taxes.
(a) A license fee for charitable bingo shall be paid to the
commission for an annual license in the amount of five hundred
dollars, except that for volunteer or nonprofit groups who gross
less than twenty thousand dollars the fee is two hundred dollars
and for bona fide senior citizen organizations the fee is fifty
dollars. A license fee shall be paid to the commission for a
limited occasion license in the amount of one hundred dollars. A
license fee of five hundred dollars shall be paid to the commission
for a state fair license as provided in section twenty-two of this
article. All revenue from the license fees shall be deposited in
the special revenue account established for the purpose and used to
support the charitable gaming commission. 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) A license fee shall be paid to the commission for annual
raffle licenses in the amount of five hundred dollars. A license
fee shall be paid to the commission for a limited occasion raffle
license in the amount of fifty dollars. All revenue from this
license fee shall be used to support the charitable gaming
commission. The revenue is subject to appropriation by the
Legislature. 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 on any
raffle or raffle occasion.
(c) The gross proceeds derived from the conduct of a
charitable gaming 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 charitable bingo occasion and is exempt from
collecting consumers sales taxes on any admission fees and sales of
bingo faces. The exemption provided in this subsection does not
apply to state fair bingo proceeds. Any charitable or public service organization conducting a raffle occasion pursuant to the
provisions of this article is exempt from payment of consumers
sales and service taxes, use taxes and all other taxes on all
purchases for use or consumption in the conduct of a raffle
occasion and is exempt from collecting consumers sales taxes on any
admission fees and sales of raffle chances.
§10A-2-11. Super bingo license.
Any charitable or public service organization may, upon
payment of a five thousand dollar license fee, apply to the
commission for issuance of an annual super bingo license. All
revenue from the license fee shall be used to support the
charitable gaming commission. The commission shall propose
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 twelve super
bingo occasions each year during the period of the license at which
up to one hundred thousand dollars in prizes may be awarded,
notwithstanding the fifteen thousand dollar limitation on prizes
specified in section sixteen of this article. The charitable
gaming commission may, by legislative rule, increase the prize
limit for super bingo.
A charitable or public service organization that has a regular
or limited occasion bingo license may apply for a super bingo license.
§10A-2-12. Super tiger bingo event.
Any holder of a super bingo license issued pursuant to the
provisions of section eleven of this article may apply for a super
tiger bingo event license where: (1) The applicant has held at
least six super bingo occasions under its current super bingo
license; (2) the applicant has otherwise complied with the
provisions of this chapter; and (3) the applicant is in good
standing with the charitable gaming commission. The application
for a super tiger bingo event license must be on a form specified
by the commission and accompanied by a ten thousand dollar super
tiger bingo event license fee. The commission shall issue the
applicant a super tiger bingo event license if the commission
finds: (1) That the applicant has held at least six super bingo
occasions under its current super bingo license; (2) that the
applicant has complied with all applicable laws and rules; (3) that
the applicant's super bingo license is in good standing; (4) that
the applicant has not been granted a super tiger bingo event
license during the current term of its super bingo license; and (5)
that the applicant has remitted the required super tiger bingo
event license fee. A super bingo licensee may only be granted one
super tiger bingo event license during the twelve-month term of the
licensee's super bingo license. A super tiger bingo event license
entitles the licensee to hold one super tiger bingo event during a conventional weekend during which the twelve-hour time limit does
not apply. A super tiger bingo licensee has a five hundred
thousand dollar prize limit, notwithstanding the prize limits set
forth in section sixteen of this article. As a condition of being
granted a super tiger bingo event license, the licensee shall
donate an amount equal to ten percent of those gross proceeds from
the event, remaining after deducting the cost of prizes, to the
James "Tiger" Morton catastrophic illness fund established in
article five-q of chapter sixteen of this code.
§10A-2-13. Information required in application.
An application for a charitable gaming license must include
the following information:
(1) 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;
(2) 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 the organization shall be supplied;
(3) For a limited occasion license, the names and addresses of
two or more bona fide active members, supporters, volunteers or
employees of the applicant organization who have been active
members in good standing of the licensee organization or its
authorized auxiliary organization or who have been meaningfully affiliated with the licensee organization at least two years prior
to the date of filing of the application for a charitable gaming
license or the most recent filing of an application for renewal of
the license and who are charged with overall responsibility for the
applicant's bingo or raffle operations, at least one of whom shall
be present and function as a manager-operator for the applicant's
charitable gaming operations at all times the gaming operations are
conducted; and the names and addresses of the highest elected
officer of the licensee and his or her officially appointed
designee;
(4) For an annual license, the names, addresses and telephone
numbers of three or more bona fide active members supporters,
volunteers or employees of the applicant organization who have been
active members in good standing of the licensee organization or its
authorized auxiliary organization or who have been meaningfully
affiliated with the licensee organization at least two years prior
to the date of filing of the application for a charitable gaming
license or the most recent filing of an application for renewal of
the license and who are charged with overall responsibility for the
applicant's charitable gaming operations, at least one of whom
shall be present and function as a manager-operator for the
applicant's charitable gaming operations at all times charitable
gaming is conducted; and the names and addresses and telephone
numbers of the highest elected officer of the licensee and his or her officially appointed designees;
(5) The address or location of the premises where licensed
charitable games are to be held;
(6) Information as may be required by the commissioner to
satisfy him or her that the applicant meets the requirements of:
(A) Being a charitable or public service organization as
required by this article; and
(B) Being in existence in this state two years prior to filing
an application for a charitable gaming license;
(7) The day or days of the week, and the time or times when
the bingo occasions will be held;
(8) The name of the owner of the premises where the bingo or
raffle 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;
(9) A statement as to whether the applicant has ever had a
previous application for any charitable gaming license refused, or
whether any previous license has been revoked or suspended;
(10) A sworn statement that the proceeds from charitable
gaming will be solely used for charitable or public service
purpose;
(11) A statement or statements to the effect that the
individuals specified in subdivision (3) of this section and the
officers of the applicant understand:
(A) 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 charitable games;
(B) That it is required to file the reports and keep the
records as provided by this article; and
(C) 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;
(12) 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;
(13) 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
(14) Any other necessary and reasonable information which the
commission may require.
§10A-2-14. Amendment of license.
If circumstances beyond the control of the licensee
organization prohibit it from holding any charitable gaming
occasion in accordance with the information provided by it in its
license application form, the licensee organization may request in
writing approval by the commission to:
(1) Modify the holding of one or more bingo or raffle occasions held pursuant to an annual license or super bingo license
if the changes are temporary;
(2) Modify the holding of one or more bingo or raffle
occasions held pursuant to a limited occasion license if the
changes affect fewer than one-third the occasions to be held under
the license; or
(3) Amend its original license if the changes to the holding
of occasions pursuant to an annual bingo or raffle license or super
bingo license are permanent or if the changes affect one third or
more of the occasions to be held under a limited occasion license.
§10A-2-15. Licensee rules.
Each licensee may adopt rules, not inconsistent with or in
violation of the provisions of this article, or rules or
regulations promulgated hereunder, to govern the conduct of
charitable gaming occasions, except that no licensee may allow an
individual not present to play any charitable bingo.
Any rules adopted by the licensee shall be made available for
inspection at all charitable occasions held. Any rules adopted are
a part of the records required to be kept by section sixteen of
this article.
§10A-2-16. Limits on prizes awarded -- General provisions.
Except as otherwise provided in 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 held
pursuant to an annual or limited occasion license, may not exceed
fifteen thousand dollars in value. However, after the thirtieth
day of June, two thousand three, the charitable gaming commission
may, by legislative rule promulgated in accordance with article
three, chapter twenty-nine-a of this code, increase the prize
limits. In formulating any increases, the charitable gaming
commission shall be familiar with the prize limits in other states
and increases in prize limits shall be made so as to allow the
charitable and public service organizations of this state to be
competitive with the charitable and public service organizations in
other states.
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.
§10A-2-17. Compensation.
(a) Except as provided in this section or otherwise provided
in this article, no individual who participates in any manner in
the conduct of a charitable gaming occasion or the operation of a
concession in conjunction with a charitable gaming 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, except as provided in this section.
(b) A licensee may pay a salary, the minimum of which is
established at the federal minimum wage, and the maximum which is
ten dollars and fifty cents per hour, to operators of charitable
raffle or charitable bingo games.
(c) If the licensee's gross receipts from charitable gaming
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 twelve operators.
(d) If the licensee's gross receipts from charitable gaming
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 eight operators.
(e) If the licensee's gross receipts from charitable gaming
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 five operators.
(f) In the case of a licensee lawfully holding a charitable
bingo occasion simultaneously with a charitable raffle occasion,
the number of paid charitable operator employees allowed under this
limitation for charitable gaming licensees is twice the number
allowed for a charitable bingo or a charitable raffle occasion.
(g) For super bingo occasions, the maximum number of paid
employees is thirty for bingo and thirty for raffle occasions held
in conjunction with super bingo occasions: Provided, That a
licensee may have the amount of employees reasonably necessary to
conduct a super bingo occasion where the number of patrons at that
super bingo occasion exceeds nine hundred.
(h) After the thirtieth day of June, two thousand two, the
charitable gaming commission shall by legislative rule proposed
pursuant to chapter twenty-nine-a of this code, establish the
schedule of maximum compensation which may be paid and the maximum
number of employees.
§10A-2-18. Concessions exception.
A licensee may allow any individual, firm, partnership or
corporation to operate concessions in conjunction with charitable
gaming occasions, and to be compensated for the concession
operation.
§10A-2-19. Permitted uses of proceeds.
(a) Proceeds from charitable gaming may only be used by a
licensee for qualified expenditure for charitable or public service
purposes as that term is defined in subsection-q of section two of
this article. All moneys remaining after payment of qualified
expenditures shall be donated to a qualified recipient organization
within twelve months following the expiration of the charitable
gaming license.
(b) The commission has the authority to disapprove any
contract for sale of goods or services to any charitable gaming
licensee for use in or with relation to any charitable gaming
operation or occasion, or any lease of real or tangible personal
property to any charitable gaming licensee for use in or with
relation to any charitable gaming operation or occasion, if the
contract or lease is unreasonable or not representative of fair
market value. Contracts or leases which are disapproved are in
contravention of this article, and are void. Any attempt by any
charitable gaming 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 gaming license and
for refusal by the commission to renew the charitable gaming
license.
(c) 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. When used two consecutive days
during a conventional weekend the super bingo occasions may occur
at the same facility no more often than alternating weekends during
a calendar month.
§10A-2-20. Records; commissioner audit.
Any licensee which holds a charitable gaming occasion as
provided by this article shall maintain a separate checking account
and a separate bookkeeping procedure for its charitable gaming
operations. A licensee may commingle all moneys from its
charitable gaming activities and may offset any losses from one
type of charitable gaming with gains from the other type of
charitable gaming. Money for expenses may be withdrawn only by
checks having preprinted consecutive numbers and made payable to a
specific person, firm, association or corporation and at no time
may a check be made payable to cash. A licensee with gross
proceeds from charitable gaming in excess of five hundred thousand
dollars per year shall utilize an electronic cash register approved
by the commission or any other method which is specifically
designed for bingo or raffle operations and which maintains an
accurate record keeping system with sufficient detail so as to
permit a paper trail which is easily verifiable and which may be
easily audited. A licensee shall maintain all records required by
this article for at least three years and the records shall be open
to the commission for reasonable inspection. Whenever the commission has reasonable cause to believe a licensee has violated
any of the provisions of this article, the commission may perform
or cause to be performed an audit of the licensee's books and
records: Provided, That the commission 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 five hundred thousand
dollars. The commission shall file a copy of the completed audit
with the county commission of the county wherein the licensee holds
charitable gaming occasions.
§10A-2-21. Advertising.
A licensee may advertise its charitable gaming occasions in a
manner reasonably necessary to promote the occasion.
§10A-2-22. Proceeds of state fair.
The Legislature declares that the proceeds of any charitable
bingo or charitable raffle game which accrue to the West Virginia
state fair are considered used for charitable or public service
purposes as that term is defined by this article. Any proceeds
allowed by the state fair board to be paid to or retained by
persons who conduct charitable gaming occasions at the state fair
are considered to be expenses incurred by the state fair board.
§10A-2-23. State fair charitable gaming license; rules.
The West Virginia state fair board may apply annually to the
commission for a state fair charitable gaming license to provide
for the conduct of bingo or raffle occasions at the state fair. The license shall permit the state fair board to have one or more
persons conduct bingo or raffle occasions at the state fair who
have conducted bingo or raffle occasions on a regular basis for 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 commission for the state fair charitable bingo license and
five hundred dollars shall be paid to the commission for the state
fair charitable raffle license. The provisions of sections
sixteen, seventeen, nineteen and thirty-three of this article do
not apply to a state fair bingo license. No state fair charitable
gaming 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 or raffle occasions at the
state fair. The state fair board may adopt reasonable rules, not
inconsistent with or in violation of the provisions of this
article, to govern the holding of bingo or raffle occasions at the
state fair.
§10A-2-24. Administration; rules.
(a) The commission shall administer the provisions of this
article in accordance with the provisions of chapter twenty-nine-a
of this code.
(b) The commission shall deny an application for a license if
it finds that the issuance thereof would be in violation of the
provisions of this article.
(c) The commission 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 commission 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 commission shall give notice to the licensee consisting of at
least ten days, except the notice shall be at least three days for
a limited occasion or state fair license. 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 commission revoking or suspending a license is subject to
judicial review upon the appeal of a licensee.
(d) The commission 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
commission finds that said failure will substantially impair the commission's ability to administer the provisions of this article
with regard to the licensee.
(e) 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 under this article.
(f) The burden of proof in any administrative or court
proceeding is on the applicant to show cause why a charitable
gaming license should be issued or renewed and on the licensee to
show cause why its license should not be revoked or suspended.
(g) Notwithstanding any other provision of this article, the
commission may issue an emergency order suspending a charitable
gaming license in the following manner:
(1) An emergency order may be issued only when the commission
believes that:
(A) There has been a criminal violation of this article;
(B) This action is necessary to prevent a criminal violation
of this article; or
(C) This 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 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.
§10A-2-25. Filing of reports.
Each licensee holding an annual license shall file with the
commission a quarterly and an annual financial report summarizing
its charitable gaming 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 commission a financial report
summarizing its charitable gaming 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 or raffle
occasion, prizes, the aggregate value of which exceeds six 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 seventy-five dollars for each month or
fraction of a month during which the failure continues, the penalty
not to exceed six hundred dollars.
§10A-2-26. Filing of copy of license; application open to public
inspection.
Whenever a license is granted pursuant to this article, the
commission shall cause a copy of the license to be filed and
recorded with the clerk of the county commission of the county in
which the bingo or raffle occasions are to be held. A copy of the
application shall be made available for public inspection in the
office of the commission.
§10A-2-27. County option election.
The county commission of any county is authorized to call a
local option election for the purpose of determining the will of
the voters as to whether the provisions of this article shall
continue in effect in said county: Provided, That no local option
election may be called to disapprove the playing of bingo or raffle
games at the state fair in accordance with the provisions of this
article.
A petition for local option election must be in the form specified in this section and signed by qualified voters residing
within the county equal to at least ten percent of the persons
qualified to vote within the county at the last general election.
The petition may be in any number of counterparts and is sufficient
if substantially in the following form:
PETITION ON LOCAL OPTION ELECTION RESPECTING THE CONDUCT OF
BINGO AND RAFFLE GAMES FOR CHARITABLE PURPOSES IN ............
COUNTY, WEST VIRGINIA
Each of the undersigned certifies that he or she is a person
residing in ............. County, West Virginia, and is duly
qualified to vote in that county under the laws of the State, and
that his or her name, address, and the date of signing this
petition are correctly set forth below.
The undersigned petition the County Commission to call and
hold a local option election at: (1) A special; or (2) the next
primary, general or special election (the petition shall specify
(1) or (2)) upon the following question: Shall the provisions of
article twenty, chapter forty-seven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, continue in
effect in ............ County, West Virginia?
Name Address Date
................ ................................
(Each person signing must specify either his or her
post-office address or his or her street number.)
Upon the filing of a petition for a local option election in
accordance with the provisions of this section, the county
commission shall enter an order calling a local option election as
specified in the petition. The county commission shall give notice
of the local option election by publication thereof as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for the publication is the county. The notice shall be so
published within fourteen consecutive days next preceding the
election.
Each person qualified to vote in the county at any primary,
general or special election shall likewise be qualified to vote at
the local option election. The election officers appointed and
qualified to serve at any primary, general or special election
shall conduct the local option election. If the local option
election is to be held at the same time as a primary, general or
other special election, it shall be held in connection with and as
a part of that primary, general or special election. The ballots
in the local option election shall be counted and returns made by
the election officers and the results certified by the
commissioners of election to the county commission which shall
canvass the ballots, all in accordance with the laws of the state
of West Virginia relating to primary and general elections insofar
as the same are applicable. The county commission shall, without delay, canvass the ballots cast at the local option election and
certify the result thereof.
The ballot to be used in the local option election shall have
printed thereon substantially the following:
"Shall the playing of bingo and raffle to raise money for
charitable or public service organizations continue in effect in
.............. County of West Virginia?
/ / Yes / / No
(Place a cross mark in the square opposite your choice.)"
If a majority of the voters voting at any local option
election vote no on the foregoing question, the provisions of
article twenty-six, chapter forty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, no
longer continue in effect in the county.
No local option election may be called in a county to resubmit
said question to the voters of that county, whether the question
was approved or disapproved at the previous local option election,
sooner than five years after the last local option election.
§10A-2-28. Prohibited acts by convicted individuals and
corporations.
Any individual, organization, association or corporation
convicted of any felony is prohibited from directly or indirectly
obtaining a charitable license, conducting a bingo or raffle game,
operating a concession, or leasing or providing to a licensee organization any premises where bingo or raffle occasions may be
held within ten years from the conviction.
§10A-2-29. Fraud; penalties.
In addition to any other offense set forth in this code, any
person who or licensee which knowingly conducts or participates in
a fraudulently or deceptively conducted charitable bingo or
charitable raffle game with intent to defraud is guilty of a felony
and, upon conviction thereof, shall be fined not less than one
thousand nor more than ten thousand dollars, or imprisoned in a
state correctional facility not less than one, nor more than five
years, or both fined and imprisoned.
§10A-2-30. Obtaining license fraudulently; penalty.
In addition to any other offense set forth in this code, any
individual, association, organization or corporation which
knowingly obtains or assists another in obtaining a charitable
gaming license under false, deceptive or fraudulent pretenses is
guilty of a felony and, upon conviction thereof, shall be fined not
less than one thousand nor more than ten thousand dollars or
imprisoned in a state correctional facility not less than one, nor
more than five years, or both fined and imprisoned.
§10A-2-31. Violation of provisions; penalties.
Any person who violates the provisions of this article, or who
violates any of the provisions contained in the legislative rule of
the charitable gaming commission is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred
nor more than two thousand dollars for a first offense and, upon a
second or subsequent conviction thereof, shall be fined not less
than one thousand nor more than five thousand dollars or confined
in a county or regional jail not more than one year, or both fined
and confined.
§10A-2-32. Additional remedies for the commissioner;
administrative procedures; deposit of money
penalties.
(a) Additional remedies. -- Notwithstanding any provision of
this article to the contrary, the commission may:
(1) Revoke or refuse to renew any license issued under this
article for any material violation of the provisions of this
article or legislative rules of the commission promulgated for this
article;
(2) Suspend the license of any licensee for the period of time
the commission considers appropriate, not to be less than one week
nor more than twelve months, for any material violation of the
provisions of this article or legislative rule of the commission
promulgated for this article;
(3) Place a licensee on probation for not less than six months
nor more than three years: Provided, That in the event a licensee
is placed on probation, as a condition of the probation, the
licensee shall pay to the commissioner a probation supervision fee in an amount equal to seven percent of the entire proceeds derived
by the licensee from the conduct of bingo or raffle occasions
during the probation period, after deduction is made for prizes.
This probation fee shall be paid during the period of the
suspension. All probation supervision fee revenue shall be placed
in a special account and used by the commission, after
appropriation by the Legislature, to offset the expenses and costs
incurred by the commission to supervise the licensee. In the event
the commission places a licensee on probation for a period of time
beyond the expiration of the current license held by the licensee,
the licensee shall agree, in writing, to renew its license for the
period of time the licensee is placed on probation;
(4) Require a licensee to replace any officer or officers who
knew or should have known of a material violation of the provisions
of this article or legislative rules of the commission promulgated
for this article;
(5) Require a licensee to prohibit one or more members,
supporters, volunteers or employees of the licensee involved in
acts of material violation of the provisions of this article or of
the legislative rules of the commission promulgated for this
article, from all future charitable gaming occasions held under the
license, or for the period of time specified by the commission;
(6) Impose a civil money penalty in an amount not less than
one hundred dollars nor more than one half of the annual gross proceeds derived by the licensee, for each material violation of
the provisions of this article or legislative rules of the
commission: Provided, That in setting any monetary penalty for a
first offense, the commission shall take into consideration the
ability of the licensee to continue to exist and operate. For each
material violation which is a second or subsequent offense, the
amount of the civil penalty that may be imposed may not be less
than five hundred dollars and may not exceed two times the annual
gross proceeds of the licensee. Application of this subdivision
and the amount of civil money penalty levied shall be determined in
accordance with a legislative rule promulgated by the commission
pursuant to article three, chapter twenty-nine-a of this code. The
commission may file this rule as an emergency rule. Any licensee
aggrieved by the amount of the civil penalty may surrender its
license, or, after exhausting all administrative remedies, have the
matter reviewed in the circuit court of the county where the
offense giving rise to the civil penalty occurred; or
(7) Order any one or more, or any combination, of the
penalties provided for in subdivisions (1) through (6) of this
subsection: Provided, That no sanctions or other remedy shall be
imposed under this article on a licensee which is exempt or
qualified to be exempt from federal income taxation under
subsection 501(c)(3) or 501(c)(4) of the Internal Revenue Code of
1986, as amended, but does not have bona fide members, due to failure to operate charitable gaming occasions with members if the
occasions are or were operated by residents of this state who have
been employed by the licensee or been meaningfully associated with
the licensee for one or more years before the date of the
licensee's application for a license under this article, or its
last application for renewal of a license under this article.
(b) Administrative procedures.
(1) An order issued under this section shall be served by
certified mail or in the manner provided in rule 4(d) of the West
Virginia rules of civil procedure for trial courts of record, as
amended.
(2) A licensee may appeal an order of the commission issued
under this section by filing a written protest with the commission,
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 filed timely, the provisions of
article five, chapter twenty-nine-a of this code apply. The
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
commission under this section should be modified, in whole or in
part, or set aside.
(c) Deposit of money penalties. -- All fines, money penalties and fees imposed pursuant to this section, except the probation
supervision fee imposed by subdivision (3), subsection (a) of this
section, shall be deposited into the general revenue fund of this
state.
§10A-2-33. Restrictions on use of bingo and raffle equipment.
A licensee may use only bingo or raffle equipment which it
owns or which it borrows without compensation, or leases for a
reasonable and customary amount.
§10A-2-34. Certain operators of bingo games to provide for smoking
and nonsmoking sections.
Any bingo operator who has more than one hundred bingo patrons
at any bingo occasion shall provide a nonsmoking section, if
smoking is permitted. The provisions of this section may not be
varied or altered in any way by any local ordinance or regulation.
§10A-26-35. Effective date.
The effective date of this article is the first day of July,
two thousand one.
§10A-2-36. Severability.
If, for any reason, any section, sentence, clause, phrase or
provision of this article or its application to any person or
circumstance is held unconstitutional or invalid, the
unconstitutionality or invalidity 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 3. CHARITABLE RAFFLE BOARDS AND GAMES.
§10A-3-1. Short title.
This article shall be known as and may be cited as the
"Charitable Raffle Boards and Games Act."
§10A-3-2. Definitions.
For purposes of this article, unless specified otherwise:
(1) "Commission" means the charitable gaming commission of the
state of West Virginia.
(2) "Director" means the director of the charitable gaming
commission.
(3) "Retail value" means the actual consideration paid to the
wholesaler by the retailer for any raffle boards or games.
(4) "Person" means any individual, association, society,
incorporated or unincorporated organization, firm, partnership or
other nongovernmental entity or institution.
(5) "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
article two of this chapter.
(6) "Charitable raffle board" or "charitable raffle game"
means: (A) 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; (B) 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;
(C) any game of chance where tickets are dispensed in any manner:
Provided, That if the tickets are dispensed by a machine, the
machine may not make use of any internal random number generator to
determine a prize winner; or (D) any other similar game which may
be defined by the commission by legislative rule.
(7) "Sale" means the transfer of the ownership of tangible
personal property for a consideration.
(8) "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 any other form
of identification as may be prescribed by the commission upon a
showing of undue hardship by the taxpayer: Provided, That any
other form of identification shall be prescribed by rule in
accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(9) "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 commission, and licensed under the provisions of this article, to
distribute the 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 by the
charitable or public service organization of the printing or
duplicating operation from the activity does not exceed fifteen
thousand five hundred dollars per calendar year and who is donating
the items or services to a nonprofit entity without compensation
may not be considered a "wholesaler" or "distributor" under this
article.
§10A-3-3. Fees.
Wholesalers or distributors of charitable raffle boards and
games to retailers are licensed and a license fee in the amount of
five hundred dollars shall be paid to the commission 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 is in addition to any tax imposed pursuant to the provisions of article fifteen, chapter eleven of this code.
The fees imposed by this article are deposited in a special revenue
account established in the treasury and, after appropriation by the
Legislature, used to support the operations of the charitable
gaming commission.
§10A-3-4. No fee on charitable raffle boards and games by
municipalities or other governmental subdivisions.
No municipality or governmental subdivision shall levy any
excise or other tax or fee requiring charitable raffle boards or
games to be stamped, or requiring licenses for sale thereof, other
than licenses which may be imposed as a result of licenses provided
for in article twelve, chapter eleven of this code.
§10A-3-5. Requirement of wholesalers and distributors to be
licensed to do business in state; resident agent
requirement.
(a) Any wholesaler or distributor supplying charitable raffle
boards or games to retailers in this state are registered to do
business in this state pursuant to the provisions of article
twelve, chapter eleven of this code.
(b) Nonresidents otherwise complying with the provisions of
this article may be licensed as wholesalers or distributors of
charitable raffle boards or games upon designating to the
charitable gaming commission a resident agent upon whom notices,
orders or other communications issued pursuant to this article may be served and upon whom process may be served.
§10A-3-6. How fee paid; reports required; due date; records to be
kept; inspection of records and stocks; examination
of witnesses, summons, etc.
The retail value fee imposed by section three of this article
is paid by each licensed wholesaler or distributor to the
commission 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
is 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 three-month period by
twenty percent. The fee is in addition to any tax imposed pursuant
to the provisions of article fifteen, chapter eleven of this code.
All fees due and owing to the commission by reason of this article,
if paid after the due dates required by this section, are subject
to the provisions of article ten, chapter eleven of this code.
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 other information as
the commission may consider necessary for the ascertainment or
assessment of the fee imposed by this article. The return is
signed under penalty of perjury on forms the commission prescribes
and the wholesaler or distributor shall at the time of filing remit all fees owed or due.
The returns prescribed are required, although a fee might not
be due or no business transacted for the period covered by the
return.
Each person required to file a return under this article shall
make and keep records as are prescribed by the commission 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 not less than three years.
Unless otherwise permitted, in writing, by authority of the
commission, each delivery ticket or invoice for each purchase,
sale, gift, donation or any other transaction or occurrence where
charitable raffle boards or games leave the possession of the
retailer are recorded upon a serially numbered invoice showing the
name and address of the seller and the purchaser, the point of
delivery, the date, quantity, serial number and price of the
product sold and the fee must be set out separately, and any other
reasonable information as the commission may require. These
invoicing requirements also apply to cash sales and a person making
any sales must maintain records as may be reasonably necessary to
substantiate his or her return.
The commission may use any of the powers set forth in section
five, article ten, chapter eleven of this code. In addition, the commission has 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 has 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.
In addition to the 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 commission
may examine witnesses under oath; and if the witness fails or
refuses at the request of the commission to grant access to the
books, records or papers, the commission shall certify the facts
and names to the circuit court of the county having jurisdiction of
the party and the court shall issue summons to the party to appear
before the commission, at a place designated within the
jurisdiction of the court, on a day fixed, to be continued as the
occasion may require for good cause shown and give evidence and lay
open for inspection the books and papers as may be required for the purpose of ascertaining the amount of fees and returns due, if any.
§10A-3-7. Penalty for failure to file return when no fee due;
other offenses;
penalties; seizures of illegal boards
and games; disposition.
(a) Penalty for failure to file required return where no fee
due. -- In the case of any failure to make or file a return when no
fee is due, as required by this article, on the date prescribed,
unless it is shown that the failure was due to reasonable cause and
not due to willful neglect, there is collected a penalty of
twenty-five dollars for each month of the failure or fraction of a
month.
(b) It is a misdemeanor, punishable pursuant to the terms of
this article, if any person:
(1) Makes any false entry upon an invoice required to be made
under the provisions of this article or with intent to evade the
fee imposed by this article presents any false entry for the
inspection of the commission;
(2) Prevents or hinders the commission from making a full
inspection of any place where charitable 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 any charitable raffle boards or games in this state
on which the applicable fee or tax has not been paid;
(4) Being a retailer in this state, fails to produce on demand
by the commission invoices and verification of all charitable
raffle boards and games purchased or received by him or her within
three years prior to the demand, unless upon satisfactory proof it
is shown that the nonproduction is due to providential or other
causes beyond his or her control; or
(5) Being a retailer in this state, purchases or acquires
charitable raffle boards and games from any person other than a
wholesaler or distributor licensed under this article.
(c) Any person convicted of violating the provisions of
subsection (b) of this section shall be confined in the county or
regional jail for not more than one year or fined not less than one
thousand dollars nor more than ten thousand dollars, or both fined
and confined.
(d) Any person who falsely or fraudulently makes, forges,
alters or counterfeits any invoice or serial number prescribed by
the provisions of this article, or its related rules, for the
purpose of evading the fee hereby imposed, is guilty of a felony
and, upon conviction thereof, is sentenced to pay a fine of not
less than five thousand dollars nor more than fifteen thousand
dollars or imprisoned in a state correctional facility for a term
of not less than one year nor more than five years, or both fined
and imprisoned.
(e) Whenever the commission, or any of its deputies or employees authorized thereby, or any peace officer of this state
shall discover any charitable raffle boards or games subject to the
fee as provided by this article and upon which the fee has not been
paid as required, the charitable raffle boards and games are
contraband, and the commission, director, or the deputy, or
employee or any peace officer of this state, may seize the
charitable raffle boards or games, without a warrant, and the
charitable raffle boards and games shall be forfeited to the state.
The commission shall retain the forfeited charitable raffle boards
and games until they are no longer needed as evidence in any
prosecution of the person from whom the raffle boards and games
were seized. The commission may within a reasonable time
thereafter destroy the charitable raffle boards and games or sell
the charitable raffle boards or games at public auction to the
highest bidder: Provided, That the seizure and destruction or
public auction do not relieve any person from fine or imprisonment
for violation of any provisions of this article. The destruction
may be made in any county the commission considers most convenient
and economical. All revenue from the license fee shall be
deposited in the special revenue account established under the
authority of section three of this article and used to support the
charitable gaming commission.
(f) Magistrates have concurrent jurisdiction with any other
court having jurisdiction for the trial of all misdemeanors arising under this article.
§10A-3-8. Transportation of charitable raffle boards and games;
forfeitures and sales of charitable raffle boards,
charitable raffle games and equipment; criminal
sanctions.
Every person who knowingly transports charitable raffle boards
or games upon the public highways, waterways, airways, roads or
streets of this state must have in his or her actual possession
invoices or delivery tickets for the charitable raffle boards or
games which shows the true name and the complete and exact address
of the manufacturer, the true name and complete and exact address
of the wholesaler or distributor who is the purchaser, the quantity
and description of the charitable raffle boards and games
transported and the true name and complete and exact address of the
person who has or assumes payment of the West Virginia state fee,
or the tax, if any, of the state or foreign country at the point of
ultimate destination. In the absence of invoices, delivery tickets
or bills of lading, as the case may be, the charitable raffle
boards or games so transported, the vehicle or vessel in which the
charitable raffle boards or games are being transported and any
paraphernalia or devices used in connection with them, are
contraband goods and may be seized by the commission, director or
his or her agents or employees or by any peace officer of the state
without a warrant.
Any person who transports charitable raffle boards or games in
violation of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five hundred
dollars nor more than five thousand dollars, or confined in the
regional or county jail not more than one year, or both fined and
confined.
Charitable raffle boards and games seized under this section
are destroyed in the manner provided in this section and the
destruction does not relieve the owner of the destroyed charitable
raffle boards and games of any action by the commission for
violations of this or any other sections of this article.
The commission shall immediately, after any seizure made
pursuant to this section, institute a proceeding for the
confiscation thereof in the circuit court of the county in which
the seizure is made. The court may proceed in a summary manner and
may direct confiscation by the commission: Provided, That any
person claiming to be the holder of a security interest in any
vehicle or vessel, the disposition of which is provided for above,
may present his or her petition so alleging and be heard, and in
the event it appears to the court that the property was unlawfully
used by a person other than the claimant, and if the claimant
acquired his or her security interest in good faith and without
knowledge that the vehicle or vessel was going to be so used, the
court shall waive forfeiture in favor of the claimant and order the vehicle or vessel returned to the claimant.
§10A-3-9. Administration; rule making; required verification.
(a) The commission shall propose for promulgation, rules to
administer the provisions of this article in accordance with the
provisions of chapter twenty-nine-a of this code. However, the
initial promulgation of rules to administer the provisions of this
article are by emergency rule. Additionally, the commission shall
propose for promulgation a rule which requires that every
charitable raffle board or game bear verification, as defined by
section two of this article, printed by a manufacturer on each
ticket in a game unless, upon application by the taxpayer showing
undue hardship, the commission consents to waive the requirement in
favor of some other form of verification.
(b) The commission shall deny an application for a license if
it finds that its issuance would be in violation of the provisions
of this article.
(c) The commission may suspend, revoke or refuse to renew any
license issued for a material failure to maintain the records or
file the reports required by this article or administrative rule,
if the commission finds that the failure will substantially impair
the commission's ability to administer the provisions of this
article with regard to the licensee.
(d) The burden of proof in any administrative or court
proceeding is on the applicant to show cause why a charitable raffle boards or games wholesaler's or distributor's license should
be issued or renewed and on the licensee to show cause why its
license should not be revoked or suspended.
§10A-3-10. Effective date; preservation of former article.
The provisions of this article enacted in the year two
thousand one are effective after the thirtieth day of June, two
thousand one. All rights, debts and causes of action existing
under article twenty-three, chapter forty-seven of this chapter are
preserved and survive the repeal of that article and the placement
of that article in this chapter.
NOTE: The purpose of this bill is to create the charitable
gaming commission to license, regulate and oversee charitable
raffles and charitable bingo in this state. The bill repeals the
articles on charitable bingo and charitable raffles and combines
charitable raffles and charitable bingo into one article.
The bill addresses and clarifies many issues and concerns
regarding charitable gaming. Prize caps are increased, employee
number and compensation are increased and uses of proceeds from
charitable gaming is expanded.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§47-20, 21 and 23 are repealed.
Chapter 10A is new; therefore, strike-throughs and
underscoring have been omitted.