hb2327 intr

H. B. 2327

(By Delegates Mezzatesta, Michael,

Williams and Warner)

[Introduced January 16, 2003 ; referred to the

Committee on Government Organization then Finance.]

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; and to further amend said code by adding thereto a new chapter, chapter ten-a, all relating to creation of charitable gaming commission in department of tax and revenue; 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 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 and regulations; 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 license to advertise charitable gaming occasions; proceeds of state fire charitable games; state fair charitable gaming license; state fair may adopt rules and regulations regarding charitable gaming; rules and regulations of the charitable gaming commission; exempting certain solicitation and sales from law governing solicitation of charitable contributions; 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; restrictions on in certain circumstances; surety bonds required; 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; reports required; 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; rule making; required 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 the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; 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~~ the agencies and boards, are hereby transferred to and incorporated in and 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;~~ Bureau for child support enforcement designated in article eighteen, chapter forty-eight of this code; and

(13) The charitable gaming commission created in article one, chapter ten-a of this code.

(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 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;

(i) Enterprise zone authority provided for in article two-b, chapter five-b of this code;

(ii) Economic development authority provided for in article fifteen, chapter thirty-one of this code; and

(iii) 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~~ of the agencies or boards, are hereby transferred to and incorporated in and 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~~ of the agencies or boards, are hereby transferred to and incorporated in and 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 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~~ Bureau for child support enforcement ~~division~~ designated in ~~chapter forty-eight-a~~ article eighteen, chapter forty-eight 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~~ of the agencies or boards, are hereby transferred to and incorporated in and 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, chapter twenty-nine of this code;

(4) Agency of insurance commissioner provided for in article, 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;

(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~~ of the agencies or boards, are hereby transferred to and incorporated in and 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 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 affected by the enactment of this chapter and all boards which are appellate bodies or were otherwise established to be independent decision makers shall 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 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 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 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 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 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 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 shall be appointed by the governor. The executive director of the commission shall be appointed by the commission.

The Legislature also intends that the charitable gaming commission promulgate 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, but not limited to, 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 of this chapter.

(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 hereby created within the department of administration a state charitable gaming commission, which shall consist of seven members, all residents and citizens of this state. Commission members shall be 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 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: Provided, That 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 four, two for the term ending the thirtieth day of June, two thousand five, two for the term ending the thirtieth day of June, two thousand six and two for the term ending the thirtieth day of June, two thousand seven. 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 shall be 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 shall serve 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 thereof engaged in the discharge of official duties and shall reimburse each member for actual and necessary expenses incurred in the discharge of official duties: Provided, That the per mile rate to be reimbursed shall be 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 chairman, executive director or majority of the commission members.

(h) Quorum. -- A majority of the members constitutes 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 promulgate legislative rules to regulate charitable gaming in this state.

(b) Powers and duties. -- The commission has authority to:

(1) Promulgate rules in accordance with chapter twenty-nine-a it believes are reasonable and necessary to implement, explain, administer or enforce the provisions of this chapter;

(2) Promulgate 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;

(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 shall 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 hereby 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 will serve on a full-time basis for five-year terms and 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 twenty or twenty-one, chapter forty-seven of this code.

(f) Compensation. -- The director shall receive an annual salary of sixty thousand dollars and 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 regulations.

(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 may:

(1) Appoint, with the approval of the commission, a deputy director who will serve 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, professional, clerical, 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 must execute an authorization to allow an investigation of that person's background.

(3) Issue charitable gaming licenses and enforce the provisions of this chapter.

(b) Civil service. -- All employees of the commission, except as otherwise expressly provided in this article, shall be in the classified service under 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 tenth day of each regular session of the Legislature, provide to the Legislature, the commission, the governor and the secretary of tax and revenue 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 tax and revenue.

(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 twenty, twenty-one or twenty-three, chapter forty-seven 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 wherein the violation occurred or to any appropriate law-enforcement agency.

(f) Assistance of other officials. -- 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 three, all fees, taxes and penalties collected under article three, of this chapter shall be deposited in a special revenue account established in the office of the treasurer 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 three, 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. The transferred employees shall have civil service coverage and the positions shall be covered positions for civil service.
§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 may not affect other sections, sentences, clauses, phrases or provisions or their application to any other person or circumstance, and to this end every article, section, sentence, clause, phrase or provision of this article is hereby declared to be severable.
§10A-1-9. Effective date.

The provisions of this article shall take effect on the first day of June, two thousand three, and apply to charitable gaming conducted after the thirtieth day of June, two thousand three.

ARTICLE 2. 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 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:

(a) "Bingo" means the game wherein 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 00000commences, numbers are selected by chance, one by one, and announced. The numbers announced are covered or marked as they appear on the face or faces which they are using. The player or players who first announce that he, she or they have completed a predetermined sequence or pattern which had been preannounced for that game is, upon verification, declared the winner or winners of that game.

(b) "Bingo occasion" or "occasion" means a single gathering or session at which a series of one or more successive bingo games is conducted by a single licensee.

(c) "Charitable or public service activity or endeavor" means any bona fide activity or endeavor which directly benefits a number of people by:

(1) Assisting them to establish themselves in life as contributing members of society through education or religion; or

(2) Relieving them from disease, distress, suffering, constraint, or the effects of poverty;

(3) Increasing their comprehension of and devotion to the principles upon which this nation was founded and to the principles of good citizenship;

(4) Making them aware of or educating them about issues of public concern so long as the activity or endeavor is not aimed at influencing legislation or supporting or participating in the campaign of any candidate for public office;

(5) By lessening the burdens borne by government or voluntarily supporting, augmenting or supplementing services which government would normally render to the people;

(6) Providing or supporting nonprofit community activities for youth, senior citizens or the disabled;

(7) Providing or supporting nonprofit cultural or artistic activities; or

(8) Providing scholarships for a person or persons considered worthy by the organization.

(d) "Charitable or public service organization" means a bona fide, not for profit, tax-exempt, benevolent, educational, philanthropic, humane, patriotic, civic, religious, fraternal, or eleemosynary incorporated or unincorporated association or organization; or a volunteer fire department, rescue unit, or other similar volunteer community service organization or association; but 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. Such organizations are, for the purposes of this article, automatically considered a charitable or public service organization. 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.

(e) "Charitable gaming" means and includes the licensed conduct of charitable bingo or charitable raffles or both charitable bingo and charitable raffles.

(f) "Commission" means the charitable gaming commission.

(g) "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.

(h) "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.

(i) "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.

(j) "Licensee" means any organization or association granted an annual, limited occasion, super bingo or state fair charitable gaming license pursuant to the provisions of this article.

(k) "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: (1) 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; (2) the timely filing of all required financial and operational reports; (3) obtaining required financial compilations, reviews or audits; (4) maintaining the integrity of the gaming process and fair gaming operations; (5) assuring the prompt payment of gaming prizes which have been legitimately won; (6) assuring that all gaming operations are free of fraud or misrepresentation; (7) scheduling charitable gaming operations; (8) supervising charitable gaming operations; (9) supervising volunteer and paid workers at the charitable gaming occasion; supervising the preparation of any required daily report forms; and (11) any other managerial duties that may be performed in connection with the conduct of charitable gaming.

(l) "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.

(m) "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.

(n) "Person" means any individual, association, society, incorporated or unincorporated organization, firm, partnership or other nongovernmental entity or institution.

(o) "Qualified recipient organization" means a bona fide, not for profit, tax-exempt, incorporated or unincorporated association or organization; or a veterans association or any other association to which a person making donations or contributions thereto is entitled to deduct the amount of his or her donation made to such 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 (1) through (8), subdivision (c) 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" includes without limitation the state of West Virginia, any of its political subdivisions and agencies. "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 twenty percent of the disallowed expenditure to a qualified recipient organization, no further action may taken against the licensee for the disallowed expenditure.

(p) "Qualified expenditure for charitable or public service purposes" means any expenditure of moneys derived from a licensee for: (1) 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, 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; (2) 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: Provided, That no more than sixty percent of the proceeds from charitable gaming remaining after the expenses set forth in subdivision (1) of this subsection may be expended for the purposes set forth in subdivision (2) of this subsection: Provided, however, That in all events at least two per cent of gross proceeds from charitable gaming shall be used for charitable or public service purposes.

(q) "Raffle" means a finite game involving the selling of chances to participate in such game entitling the player purchasing the chance or chances the opportunity to win a predetermined prize or prizes.

(r) "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: Provided, That a separate license is required for charitable bingo and for charitable raffles.

Application for a charitable bingo or charitable raffles license shall be made to the charitable gaming commission and shall be on a form which shall be 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 ten 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 shall send the applicant its license within five days after approval of the application.

If the commission has not acted on an application within sixty days from the date it receives the application, as evidenced by a canceled 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 proceed to hold those charitable gaming events it had 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: Provided, That for purposes of this section the various branches, chapters or lodges of any national association or organization or local churches of a nationally organized church are not considered affiliates or auxiliaries of each other. The 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 bingo license is valid for one year from the date of issuance and entitles only the licensee to hold no more than one hundred four bingo occasions per year: Provided, That if the charitable gaming commission issues licenses on a calendar year basis it shall prorate the license fee. 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 must display its annual charitable bingo license or charitable raffle license, or a copy thereof, conspicuously at any location where a 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 must be open to the general public: Provided, That no licensee may permit or allow any individual under the age of eighteen to participate in the playing of any bingo game with knowledge or reason to believe that the individual is under the age of eighteen: Provided, however, That an individual under the age of eighteen may attend the playing of a bingo game, if allowed by the licensee, when accompanied by and under the supervision of an adult relative or a legal guardian of said individual: Provided further, That nothing contained herein may be construed to prohibit junior volunteer firefighters sixteen years of age or older from assisting the volunteer fire company of which 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: And provided further, That 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 license; conditions on holding of games.

A limited occasion license is valid only for the time period specified in the application and entitles only the licensee to hold a bingo occasion once every twenty-four hours for a time period not to exceed two weeks. Two or more organizations may hold a joint bingo occasion provided each participating organization has been granted a limited occasion bingo license for such 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, must obtain a limited occasion license notwithstanding the fact that it holds a valid annual license: Provided, That no licensee which holds an annual license may obtain more than one limited occasion license.

Only three limited occasion licenses per year in the aggregate may be granted to a charitable or public service organization and all of its auxiliaries or other associations or organizations otherwise affiliated with it, none of which hold an annual license. For purposes of this section, the various branches, chapters or lodges of any national association or organization or local churches of a nationally organized church are not considered affiliates or auxiliaries of each other. The commission shall by legislative rule provide the manner for determining to which organization, whether the parent organization, an affiliate or an auxiliary, the three licenses allowed under this section are granted.

A licensee must 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 shall conduct a bingo occasion only in the county within which the organization is principally located.

Any licensee which, in good faith, finds itself unable to comply with this requirement must apply to the commission for permission to conduct a bingo occasion in a location other than the county within which the organization is principally located: Provided, That the location must 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 within which the organization is principally located. The application must 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 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 such jointly held occasion: Provided, That 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 period 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 by regulation provide the manner for determining to which organization, whether the parent organization, an affiliate or an auxiliary, the three licenses allowed under this section are granted.

A licensee must 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 hereby authorized to conduct raffles without compliance with the licensing provisions of this article: Provided, That any prize awarded in any single raffle at a raffle occasion may not exceed in value the sum of three thousand dollars: Provided, however, That 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: Provided further, That any organization is not subject to the record keeping provisions of section eighteen of this article but must 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 must be available for reasonable inspection by the commissioner.

§10A-2-10. License fee and exemption from taxes.

(a) A license fee for charitable bingo must be paid to the commission for annual licenses in the amount of five hundred dollars, except that for volunteer or nonprofit groups who gross less than twenty thousand dollars the fee shall be two hundred dollars and for bona fide senior citizen organizations the fee is fifty dollars. A license fee must be paid to the commission for a limited occasion license in the amount of one hundred dollars. A license fee of five hundred dollars must be paid to the commission for a state fair license as provided in section twenty-two of this article. All revenue from said license fee shall be deposited in the special revenue account hereby established and used to support the charitable gaming commission: Provided, That 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.

(b) The gross proceeds derived from the conduct of a bingo occasion are exempt from state and local business and occupation taxes, income taxes, excise taxes and all special taxes. The licensee is exempt from payment of consumers sales and service taxes and use taxes on all purchases for use or consumption in the conduct of a bingo occasion and is exempt from collecting consumers sales taxes on any admission fees and sales of bingo faces: Provided, That the exemption provided in this subsection does not apply to state fair bingo proceeds.

(c) A license fee must be paid to the commission for annual raffle licenses in the amount of five hundred dollars. A license fee must 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: Provided, That 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.

(d) The gross proceeds derived from the conduct of a raffle occasion are exempt from state and local business and occupation taxes, income taxes, excise taxes and all special taxes. 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 per occasion, notwithstanding the fifteen thousand dollar limitation on prizes specified in section fifteen of this article: Provided, That 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. Information required in application.
An application for a charitable gaming license must include the following information:

(a) Name of the applicant and name and headquarter's address of any state or national organization of which it is a local branch or lodge;

(b) The address and telephone number of the applicant organization, if any. If the applicant organization has no telephone, then the address and telephone number of the person applying on behalf of the organization shall be supplied;

(c) 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 must be present and function as a manager-operator for the applicant's charitable gaming operations at all times gaming operations are conducted; and the names and addresses of the highest elected officer of the licensee and his or her officially appointed designee;

(d) For an annual license, the names, addresses and telephone numbers of three or more bona fide active member 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;

(e) The address or location of the premises where licensed charitable games are to be held;

(f) Information as may be required by the commissioner to satisfy him or her that the applicant meets the requirements of:

(1) Being a charitable or public service organization as required by this article; and

(2) Being in existence in this state two years prior to filing an application for a charitable gaming license.

(g) The day or days of the week, and the time or times when the bingo occasions will be held;

(h) The name of the owner of the premises where the bingo occasions are to be held and a copy of all rental agreements involved if leased or subleased by the applicant from the owner or lessee;

(i) 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;

(j) A sworn statement that the proceeds from charitable gaming will be solely used for charitable or public service purpose;

(k) A statement or statements to the effect that the individuals specified in subdivision (c) of this section and the officers of the applicant understand:

(1) That it is a violation of this article to allow any persons other than those authorized by this article to conduct any part of the charitable games;

(2) That it is required to file the reports and keep the records as provided by this article; and

(3) That it is a crime to violate the provisions of this article and, in addition, that a violation may result in suspension or revocation of its license and denial of applications for subsequent licenses;

(l) 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;

(m) A list of the names and addresses of all officers and members of the board of directors, governors or trustees, if any, of the applicant organizations; and

(n) Any other necessary and reasonable information which the commission may require.

§10A-2-13. 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:

(a) Modify the holding of one or more bingo occasions held pursuant to an annual license or super bingo license if the changes are temporary; or

(b) Modify the holding of one or more bingo 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

(c) Amend its original license if the changes to the holding of occasions pursuant to an annual 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-2-14. Licensee rules and regulations.

Each licensee may adopt rules and regulations, not inconsistent with or in violation of the provisions of this article, or rules or regulations promulgated hereunder, to govern the conduct of charitable gaming occasions, except that no licensee may allow an individual not present to play any charitable bingo: Provided, That no individual may be determined absent merely because he or she is temporarily in the bathroom or is temporarily obtaining refreshments.

Any rules and regulations adopted by the licensee must be made available for inspection at all charitable occasions held. Any rules and regulations adopted are a part of the records required to be kept by section sixteen of this article.
§10A-2-15. 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: Provided, That after the thirtieth day of June, two thousand four, 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 set forth herein. In formulating any increases, the charitable gaming commission must be familiar with the prize limits in other states and increases in prize limits must be made so as to allow the charitable and public service organizations of this state to be competitive with 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-2-16. Compensation.

Except as provided herein 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 work, labor or services, except as provided in this section.

(a) A licensee may pay a salary, the minimum of which shall be established at the federal minimum wage, and the maximum which shall be ten dollars and fifty cents per hour, to operators of charitable raffle or charitable bingo games.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) After the thirtieth day of June, two thousand four, 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-2-17. 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-2-18. Permitted uses of proceeds.

(a) Proceeds from charitable gaming may only be used by a licensee for qualified expenditures for charitable or public service purposes as that term is defined in subsection (q), 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 may disapprove any contract for sale of goods or services to any charitable bingo licensee for use in or with relation to any charitable bingo operation or occasion, or any lease of real or tangible personal property to any charitable bingo licensee for use in or with relation to any charitable bingo operation or occasion, if the contract or lease is unreasonable or not representative of fair market value. Contracts or leases which are disapproved shall be considered to be in contravention of this article, and are void. Any attempt by any charitable bingo licensee to engage in transactions under the terms of any lease or contract that has been disapproved is grounds for revocation or suspension of the charitable bingo license and for refusal by the commission to renew the charitable bingo 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-2-19. 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 and 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 must maintain all records required by this article for at least five 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 must 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 must file a copy of the completed audit with the county commission of the county wherein the licensee holds charitable gaming occasions.
§10A-2-20. Advertising.

A licensee may advertise its charitable gaming occasions in a manner reasonably necessary to promote the occasion.

§10A-2-21. 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 and regulations.

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 permits 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 must be paid to the commission for the state fair charitable gaming 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 and regulations, 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-2-23. Administration; rules and regulations.

(a) The commission must administer the provisions of this article in accordance with the provisions of chapter twenty- nine-a of this code.

(b) The commission must deny an application for a license if it finds that the issuance 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 must give notice to the licensee consisting of at least ten days, except the notice must be at least three days for a limited occasion or state fair license. Notice must be in writing, state the reason for revocation or suspension and must designate a time and place when the licensee may show cause why the license should not be revoked or suspended. Notice must 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 hereunder.

(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) The action is necessary to prevent a criminal violation of this article; or

(C) The action is necessary for the immediate preservation of the public peace, health, safety, morals, good order or general welfare.

(2) The emergency order must set forth the grounds upon which it is issued, including a statement of facts constituting the alleged emergency necessitating the action. This order must 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-2-24. Filing of reports.

Each licensee holding an annual license must 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 must be filed within twenty days after the end of the quarter which it covers. The annual report must 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 must 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 must 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-2-25. Filing of copy of license; application open to public inspection.

Whenever a license is granted pursuant to this article, the commission must 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 must be made available for public inspection in the office of the commission.

§10A-2-26. 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 will 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 must be signed by qualified voters residing within said county equal to at least ten percent of the persons qualified to vote within said 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 must 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 must 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 must be qualified to vote at the local option election. The election officers appointed and qualified to serve at any primary, general or special election must 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 must be held in connection with and as a part of that primary, general or special election. The ballots in the local option election must 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 they are applicable. The county commission shall, without delay, canvass the ballots cast at the local option election and certify the result of the election.

The ballot to be used in the local option election shall have printed on them 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 said 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-2-27. Prohibited acts by convicted individuals and corporations.

Any individual, organization, association or corporation convicted of any felony or any misdemeanor involving illegal gambling 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-2-28. 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-2-29. 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 misdemeanor, 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. 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 imprisoned in the county or regional jail not more than one year, or both fined and imprisoned.

§10A-2-31. Additional remedies for enforcement; 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. If 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 through 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 must 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 may 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 must 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, must be deposited into the general revenue fund of this state.
§10A-2-32. 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-2-33. 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 smoking and 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-2-34. Solicitation and sales of bingo cards and faces, and raffles chances not to constitute solicitation of charitable funds.

Notwithstanding any other provision of this code to the contrary, the advertising, promotion and other solicitation of the sale of bingo cards and faces, and of raffles chances, and the sales thereof does not constitute the solicitation of charitable contributions for purposes of article nineteen, chapter twenty-nine of this code, or otherwise.
§10A-2-35. Effective date.

The effective date of this article is the first day of July, two thousand three.
§10A-2-36. 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 shall 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:

(a) "Commission" means the charitable gaming commission of the state of West Virginia.

(b) "Director" means the director of the charitable gaming commission.

(c) "Retail value" means the actual consideration paid to the wholesaler by the retailer for any raffle boards or games, or, in the absence of consideration paid, the actual cost to the wholesaler of any raffle boards or games.

(d) "Person" means any individual, association, society, incorporated or unincorporated organization, firm, partnership or other nongovernmental entity or institution.

(e) "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.

(f) "Charitable raffle board" or "charitable raffle game" means: (1) A board or other device that has many folded printed slips to be pulled from the board or otherwise distributed without a board on payment of a nominal sum in an effort to obtain a slip or chance that entitles the player to a designated prize; (2) a series of paper cards with perforated break-open tabs, a face value of which is covered or otherwise hidden from view to conceal one or more numbers, letters or symbols, which, on payment of a nominal sum, entitles the player to obtain a chance to a designated prize; (3) any finite game of chance where tickets are dispensed in any manner: Provided, That any machine used may not make use of any internal random number generator to determine winners; or (4) any other similar game which may be defined by the commissioner by rule proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(g) "Sale" means the transfer of the ownership of tangible personal property for a consideration.

(h) "Verification" means a unique manufacture identifiable serial number which is required to be printed on each chance in a charitable raffle board or charitable raffle game or 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 must be prescribed by rule in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(i) "Wholesaler" or "distributor" means any person or entity engaged in the wholesale distribution of charitable raffleboards or games or similar boards or devices, as defined by the commissioner, 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 must be licensed and a license fee in the amount of five hundred dollars must be paid to the commission by each wholesaler or distributor for an annual license. Wholesalers and distributors must also pay a fee of twenty cents on each dollar of retail value of each charitable raffle board or game sold to a retailer. This fee shall be in addition to any tax imposed pursuant to the provisions of article fifteen, chapter eleven of this code. The fees imposed by this article must be deposited in
a special revenue account established in the office of the treasurer 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 may levy any excise or other tax or fee requiring charitable raffleboards 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 must be 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 and the tax commissioner 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 must be 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 shall be determined by multiplying the total amount of the retail value of all charitable raffle boards and games sold by a wholesaler or distributor to retailers during the said three-month period by twenty percent. This 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 commissioner 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 must provide with each quarterly payment of fees a return covering the business transacted in the previous three calendar months and providing any other information the commissioner considers necessary for the ascertainment or assessment of the fee imposed by this article. The return must be signed under penalty of perjury on forms the commission prescribes and the wholesaler or distributor must at the time of filing remit all fees owed or due.

The returns prescribed herein 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 must make and keep records as prescribed by the commissioner that are necessary to substantiate the returns required by this article, including, but not limited to, invoices, serial numbers or other verification, inventories, receipts, disbursements and sales, for a period of time not less than three years.

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 must be recorded upon a serially numbered invoice showing the name and address of the seller and the purchaser, the point of delivery, the date, quantity, 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 the sales must maintain records as may be reasonably necessary to substantiate his return.

For each sale transaction, the product must be paid for when received or delivered. Further, all invoices must be printed, legible and in the possession of both the purchaser and the wholesaler/distributor at all times.

The commission may use any of the powers set forth for the tax commissioner in section five, article ten, chapter eleven of this code. In addition, the commissioner may inspect or examine the stock of charitable raffle boards and games kept in and upon the premises of any person where charitable raffle boards and games are placed, stored or sold, and he or she may 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 thereupon issue summons to the party to appear before the commissioner, 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 any books and papers required for the purpose of ascertaining the amount of fee 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 therefor, unless it be shown that the failure was due to reasonable cause and not due to willful neglect, there shall be collected a penalty of twenty-five dollars for each month of the failure or fraction thereof.

(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 commissioner 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 jail 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 imprisoned.

(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, shall be 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 his deputies or employees authorized by him, or any peace officer of this state discovers 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 herein required, the charitable raffle boards and games are considered to be contraband, and the commission, director, or the deputy or employee or any peace officer of this state, may forthwith seize and take possession of the charitable raffle boards or games, without a warrant, and the charitable raffle boards and games must be forfeited to the state, and the commissioner will 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 seizure and destruction or public auction may not be considered to relieve any person from fine or imprisonment as provided herein 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 said license fee must 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 courts having jurisdiction for the trial of all misdemeanors arising under this article.

§10A-3-8. Surety bonds required; release of surety; new bond.

The commissioner may require wholesalers and distributors to file continuous surety bond in an amount to be fixed by the commissioner except that the amount may not be less than one thousand dollars. Upon completion of the filing of a surety bond an annual notice of renewal, only, shall be required thereafter. The surety must be authorized to engage in business within this state. The bond shall be conditioned upon faithfully complying with the provisions of this article including the filing of the returns and payment of all fees prescribed by this article.

Any surety on a bond furnished hereunder shall be released and discharged from all liability accruing on the bond after the expiration of sixty days from the date the surety has lodged, by certified mail, with the tax commissioner a written request to be discharged. This does not relieve, release or discharge the surety from liability already accrued or which accrues before the expiration of the sixty-day period. Whenever any surety seeks release as herein provided, it is the duty of the wholesaler or distributor to supply the commissioner with another bond.
§10A-3-9. 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 actual possession invoices or delivery tickets for the charitable raffle boards or games which must show 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 will assume 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 declared to be contraband goods and may be seized by the commission, director or his 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 imprisoned in the county jail not more than one year, or both fined and imprisoned.

Charitable raffle boards and games seized under this section shall be forthwith destroyed in the manner provided hereinafter 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 must 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 petition so alleging and be heard, and if it appears to the court that the property was unlawfully used by a person other than the claimant, and if the claimant acquired his 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-3-10. 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: Provided, That the initial promulgation of rules to administer the provisions of this article shall be by emergency rule. Additionally, the commission shall promulgate a rule which requires that every charitable raffle board or game shall each 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 this requirement in favor of some other form of verification.

(b) The commission shall deny an application for a license if he or she finds that the issuance would be in violation of the provisions of this article.

(c) 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 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-3-11. Effective date; preservation of former article.

The provisions of this article enacted in the year two thousand one shall be effective after the thirtieth day of June, two thousand three. All rights, obligations, duties, privileges, debts, liabilities and causes of action existing under article twenty-three, chapter forty-seven of this chapter are hereby 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 liberalizes charitable gaming in many ways. 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.

§§10A is new; therefore, strike-throughs and underscoring have been omitted.