WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2007
FIFTY-FIFTH DAY
____________
Charleston, W. Va., Monday, March 5, 2007
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Donald E. Adkins, Rock
Castle Baptist Church, Pineville, West Virginia.
On motion of Senator Chafin, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened.
Pending the reading of the Journal of Friday, March 2, 2007,
On motion of Senator Hall, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 104, Establishing date Consolidated Public Retirement Board shall make annuity payments.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 105, Imposing surcharge on
certain fees due Deputy Sheriff Retirement Fund.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 206, Assessing court costs for
participants in pretrial diversion programs.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 274, Authorizing Department
of Transportation promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 276, Authorizing Department
of Military Affairs and Public Safety promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 6. AUTHORIZATION FOR THE DEPARTMENT OF MILITARY AFFAIRS
AND PUBLIC SAFETY TO PROMULGATE LEGISLATIVE RULES.
§64-6-1. Division of Corrections.
The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section two, article thirteen, chapter sixty-two of
this code relating to the Division of Corrections (parole
supervision, 90 CSR 2) is authorized with the following amendments:
On page one, section two, by striking out "2.1.";
On pages one and two, section two, by redesignating
subdivisions a. through r. as subdivisions 2.1. through 2.18;
On page two, subdivision 2.1.r., line four, after the word
"jurisdictions," by striking out the word "you" and inserting in
lieu thereof the words "the parolee";
On page two, section four, by striking out "4.1.";
And,
On pages two and three, section four, by redesignating
subdivisions a. through e. as subdivisions 4.1. through 4.5.
§64-6-2. State Fire Commission.
(a) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand six, authorized under the
authority of section five-b, article three, chapter twenty-nine of
this code relating to the State Fire Commission (State Building
Code, 87 CSR 4), is authorized.
(b) The legislative rule filed in the State Register on the
twenty-sixth day of July, two thousand six, authorized under the
authority of section five, article three, chapter twenty-nine of
this code, modified by the State Fire Commission to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the second day of November, two
thousand six, relating to the State Fire Commission (certification
and evaluation of local fire departments, 87 CSR 6) is authorized,
with the following amendments:
On page four, by striking out subsection 5.2 in its entirety
and by renumbering the remaining subsections accordingly; and
On page nine, subdivision 10.2.f., following the word
"subsection" by striking out "3.3" and inserting in lieu thereof
"3.2"; and
On page twelve, subsection 12.3, line eight, following the
word "subdivision", by striking out "10.2.b" and inserting in lieu
thereof "10.3.b".
§64-6-3. Homeland Security and Emergency Management.
The legislative rule filed in the State Register on the first day of May, two thousand six, authorized under the authority of
section five, article five-b, chapter fifteen of this code,
modified by the Division of Homeland Security and Emergency
Management to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the
nineteenth day of January, two thousand seven, relating to the
Division of Homeland Security and Emergency Management (mine and
industrial accident rapid response system, 170 CSR 1) is authorized
with the following amendments:
On page one, subsection 1.1, line one, by striking out the
word "coordinating" and inserting in lieu thereof the words "to
coordinate";
On page one, subsection 1.1, lines two through four, by
striking out the word "governing" and inserting in lieu thereof the
words "to govern";
On page two, subsection 2.2., line one, after the word
"means", by inserting the words "Mine and Industrial Accident
Emergency Operations Center, including";
On pages two and three, by striking out subsections 2.6., 2.7.
and 2.8. in their entirety;
On page three, by striking out section three in its entirety
and by renumbering the following sections accordingly;
On page three, subsection 4.1., line three, by capitalizing the word "director";
On page three, subsection 4.2., line two, by striking out the
word "Such", by capitalizing the word "recording" and by inserting
a comma after the word "automatic";
On page three, subsection 4.2., lines three and four, by
striking out the
words "to include" and inserting in lieu thereof
the word "including" and by striking out the words "appropriate,
approved and authorized";
On page three, subsection 4.2., line four, after the words
"representative of" by inserting the word "a", by striking out the
words "regulatory, enforcement, or investigative agencies" and
inserting in lieu thereof the words "government agency responsible
for enforcing rules and regulations and investigating violations
relating to mining and industrial safety";
On page three, subsection 4.2., line five, by striking out the
words "Such requests" and inserting in lieu thereof the words "The
request", by striking out the words "the nature of the need for
such" and inserting in lieu thereof the words "why the" and, after
the word "information", by inserting the words "is needed";
On page three, subsection 5.1., line one, by striking out the
words "shall be" and inserting in lieu thereof the word "is";
On page three, subsection 5.1., line two, by striking out the
word "purposes" and inserting in lieu thereof the word "purpose" and after "§29B-1" by inserting "-1";
On page four, by striking out subsection 5.2. in its entirety
and by renumbering the remaining subsections accordingly;
On page four, subsection 5.3., by striking out the word
"should" and inserting in lieu thereof the word "must";
On page four, subsection 5.4., after "W. Va. Code §29B-1" by
inserting "-1" and, after the words "et seq." by striking out the
remainder of the subsection;
On page four, subsection 6.1., after the word "considered", by
striking out the word "a" and, after the word "requests" by
inserting the words "in writing";
And,
On page four, by striking out subsection 6.2. in its entirety
and renumbering the remaining subsection accordingly.
§64-6-4.
Regional Jail and Correctional Facility Authority.
The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section ten, article twenty, chapter thirty-one of
this code, modified by the Regional Jail and Correctional Facility
Authority to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the
eighteenth day of January, two thousand seven, relating to the
Regional Jail and Correctional Facility Authority (criteria and procedures for determination of projected cost per day for inmates
incarcerated in regional jails operated by the Authority, 94 CSR 7)
is authorized with the following amendments:
On page one, subsection 2.1., line one, by striking out
"establishes" and inserting in lieu thereof "shall establish";
On page one, subsection 2.1., line three, after the word
"including", by inserting a comma;
On page one, subsection 2.1, line six, after the period by
inserting the following:
"Provided, that an operational reserve fund may not exceed the
amount of three months of anticipated operational expenditures."
On page one, section three, by striking out "3.1.";
On page one, section three, line two, after the word "entity"
by inserting the words "who has or may have" and, after the word
"inmate", by striking out the words "may be";
On page one, subsection 4.1., after the word "Authority", by
striking out the word "prepares" and inserting in lieu thereof the
words "shall prepare", after the word "statement" by changing the
period to a comma and striking out the words "This statement" and
inserting in lieu thereof the word "which", and, after the word
"at", by inserting the word "a";
And,
On page one, subsection 4.1, line three, after the word "charges", by inserting the words "per entity"."
§64-6-5. State Police.
The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter fifteen of this
code, modified by the State Police to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the twenty-third day of October, two thousand six,
relating to the State Police (West Virginia DNA Data Bank, 81 CSR
9) is authorized.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 276, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 276) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 276) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 314, Authorizing Department
of Education and the Arts promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out the everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 4. AUTHORIZATION FOR DEPARTMENT OF EDUCATION AND THE ARTS
TO PROMULGATE LEGISLATIVE RULES.
§64-4-1. Library Commission.
The legislative rule filed in the State Register on the
twenty-third day of May, two thousand six, authorized under the
authority of section twenty, article one, chapter ten of this code,
modified by the Library Commission to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the sixteenth day of January, two thousand seven,
relating to the Library Commission (Library Commission
administrative rule, 173 CSR 1) is authorized with the following
amendment:
On page 4, by striking the section heading and inserting the
following, "º173-1-3 Requirements for Receiving Grants."; and
On page 4, following the section heading for section 173-1-3
by inserting a new subsection designated as 3.1, to read as
follows: "3.1 A public library must fulfill all of the requirements
set forth in this section to be eligible to receive a grant from the library commission." and renumbering the remaining subsections
accordingly;
and,
On page 7, subsection 5.2, by striking the subsection in its
entirety and inserting in lieu thereof the following:
5.2 The eligibility requirements contained in section 3 of
this rule may be waived if the Commission determines that due to
exceptional or uncontrollable circumstances, one or more of the
requirements for receiving grants contained in section 3 would
impose an undue hardship on a public library. For the purposes of
this subsection, exceptional or uncontrollable
circumstances may
include, but are not limited to, a natural or man-made disaster or
a governing authority's lack of financial resources to provide
adequate local funding to support a public library's operations.
On page 8, subsection 5.2, by striking the last sentence of
the subsection;
and,
On page 8 following subsection 5.4, by inserting a new
subsection designated as 5.5 to read as follows: "5.5 The
provisions of this rule shall be liberally construed to accomplish
its objectives and purposes."
On page 8, subsection 6.2, by striking the word, "may" and
inserting the word, "shall" and by striking the word, "only";
and,
On page 13, subsection 9.1, after the word, "library" by
inserting the word, "shall".
§64-4-2. Division of Rehabilitation Services.
(a) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section three, article ten-a, chapter eighteen of this
code relating to authorizing the Division of Rehabilitation
Services (case services, 130 CSR 1) is authorized.
(b) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section three, article ten-a, chapter eighteen of this
code relating to the Division of Rehabilitation Services (resources
manual, 130 CSR 2) is authorized.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 314, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 314) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 314) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 436, Selecting executive secretary for county commission on crime, delinquency and corrections.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 484, Finding and declaring certain claims
against state.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 531, Relating to filing service of
process on corporations in class action suits.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 594, Making supplemental appropriation to
various accounts.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 626, Relating to child advocacy centers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting section
and
inserting in lieu thereof the following:
ARTICLE 1. PURPOSES AND DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code; or
(4) Domestic violence as defined in section two hundred two,
article twenty-seven, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as alleged
in the petition charging child abuse or neglect, has been adjudged by the court to constitute child abuse or neglect.
(c) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of
domestic violence as defined by section two hundred two, article
twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.
(d) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent treatment
or maltreatment of a child by a parent, guardian or custodian who
is responsible for the child's welfare, under circumstances which
harm or threaten the health and welfare of the child.
(e) "Child abuse and neglect services" means social services
which are directed toward:
(1) Protecting and promoting the welfare of children who are
abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from their
families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a
breakup of the family;
(4) In cases where children have been removed from their
families, providing services to the children and the families so as
to reunify such children with their families or some portion
thereof;
(5) Placing children in suitable adoptive homes when
reunifying the children with their families, or some portion
thereof, is not possible or appropriate; and
(6) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(f) "Child advocacy center" means a community based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc. and is working to implement the
following program components:
(1) Child-appropriate/Child-friendly facility: A Children
Advocacy Center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.
(2) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child advocacy center.
(3) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(4) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.
(5) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature and coordinated
to avoid duplicative interviewing.
(6) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the
team response, either at the CAC or through coordination and
referral with other specialized medical providers.
(7) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the CAC or through coordination and referral with other
appropriate treatment providers.
(8) Victim support/advocacy: Victim support and advocacy are to be made available as part of the team response, either at the
CAC or through coordination with other providers, throughout the
investigation and subsequent legal proceedings.
(9) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(10) Case tracking: CACs must develop and implement a system
for monitoring case progress and tracking case outcomes for team
components, Provided, That a child advocacy center may establish a
safe exchange location for children and families who have a
parenting agreement or an order providing for visitation or custody
of the children that require a safe exchange location.
(f) (g) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, or
reasonable cause to believe that the following conditions threaten
the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered child syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian;
(5) Inadequate treatment of serious illness or disease;
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian.
(g) (h) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the
provisions of chapters forty-eight and forty-nine of this code.
(h) (i) "Multidisciplinary team" means a group of
professionals and paraprofessionals representing a variety of
disciplines who interact and coordinate their efforts to identify,
diagnose and treat specific cases of child abuse and neglect.
Multidisciplinary teams may include, but are not limited to,
medical, educational, child care and law-enforcement personnel,
social workers, psychologists and psychiatrists. Their goal is to
pool their respective skills in order to formulate accurate
diagnoses and to provide comprehensive coordinated treatment with
continuity and follow-up for both parents and children. "Community
team" means a multidisciplinary group which addresses the general problem of child abuse and neglect in a given community and may
consist of several multidisciplinary teams with different
functions.
(i) (j) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by
a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education is
conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(j) (k) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological
support appropriate to a child's age and state of development.
(k) (l) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have willingly participated in such conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any of
the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have consented to such conduct or the fact that the
child may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the purpose
of gratifying the sexual desire of the parent, guardian or
custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.
(l) (m) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(m) (n) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for the
sexual gratification of the parent, guardian, custodian or a third
person, or to display his or her sex organs under circumstances in
which the parent, guardian or custodian knows such display is
likely to be observed by others who would be affronted or alarmed.
(n) (o) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(o) (p) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(p) (q) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited to, custodial rights and visitational rights and rights to participate
in the decisions affecting a minor child.
(q) (r) "Placement" means any temporary or permanent placement
of a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(r) (s) "Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(s) (t) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(t) (u) "Time-limited reunification services" means
individual, group, and family counseling, inpatient, residential or
outpatient substance abuse treatment services, mental health
services, assistance to address domestic violence, services
designed to provide temporary child care and therapeutic services
for families, including crisis nurseries and transportation to or
from any such services, provided during fifteen of the most recent
twenty-two months a child has been in foster care, as determined by
the earlier date of the first judicial finding that the child is
subjected to abuse or neglect, or the date which is sixty days
after the child is removed from home.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, or any facility that provides care for
unmarried mothers and their children;
(2) "Child advocacy center" means a community based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc. and is working to implement the
following program components:
(A) Child-appropriate/Child-friendly facility: A children's
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.
(B) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child
advocacy center.
(C) Organizational capacity: A designated legal entity responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(D) Cultural competency and diversity: The Child advocacy
center promotes policies, practices and procedures that are
culturally competent. Cultural competency is defined as the
capacity to function in more than one culture, requiring the
ability to appreciate, understand and interact with members of
diverse populations within the local community.
(E) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature, and
coordinated to avoid duplicative interviewing.
(F) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to child advocacy center clients
as part of the team response, either at the child advocacy center
or through coordination and referral with other specialized medical
providers.
(G) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the child advocacy center or through coordination and
referral with other appropriate treatment providers.
(H) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the child advocacy center or through coordination with other providers,
throughout the investigation and subsequent legal proceedings.
(I) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(J) Case tracking: Child advocacy centers must develop and
implement a system for monitoring case progress and tracking case
outcomes for team components, Provided, That a child advocacy
center may establish a safe exchange location for children and
families who have a parenting agreement or an order providing for
visitation or custody of the children that require a safe exchange
location.
(2) (3) "Community based," when referring to a facility,
program, or service, means located near the juvenile's home or
family and involving community participation in planning,
operation, and evaluation, and which may include, but is not
limited to, medical, educational, vocational, social and
psychological guidance, training, special education, counseling,
alcoholism and any treatment, and other rehabilitation services;
(3) (4)
"Court" means the circuit court of the county with
jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(4) (5)
"Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(5) (6)
"Department" or "state department" means the state
Department of Health and Human Resources;
(6) (7)
"Division of juvenile services" means the division
within the Department of Military Affairs and Public Safety
pursuant to article five-e of this chapter;
(7) (8)
"Guardian" means a person who has care and custody of
a child as a result of any contract, agreement or legal proceeding;
(8) (9)
"Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime under
state law or a municipal ordinance if committed by an adult;
(9) (10)
"Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(10) (11)
"Referee" means a juvenile referee appointed
pursuant to section one, article five-a of this chapter, except
that in any county which does not have a juvenile referee, the
judge or judges of the circuit court may designate one or more magistrates of the county to perform the functions and duties which
may be performed by a referee under this chapter;
(11) (12)
"Secretary" means the secretary of health and human
resources;
(12) (13)
"Secure facility" means any public or private
residential facility which includes construction fixtures designed
to physically restrict the movements and activities of juveniles or
other individuals held in lawful custody in such facility;
(13) (14)
"Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the
movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community, but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents;
(14) (15)
"Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety, or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good cause;
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county, or state
law regarding use of alcoholic beverages by minors;
(15) (16)
"Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to such
order, and who received, before the issuance of such order, the
full due process rights guaranteed to such juvenile by the
Constitutions of the United States and the State of West Virginia.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-2. Multidisciplinary investigative teams; establishment;
procedures; coordination between agencies.
(a) The prosecuting attorney shall establish a
multidisciplinary investigative team in each county. The
multidisciplinary team shall be headed and directed by the
prosecuting attorney or his or her designee and shall include as
permanent members the prosecuting attorney or his or her designee,
a local child protective services caseworker from the department of
health and human resources, a local law-enforcement officer
employed by a law-enforcement agency in the county, a child
advocacy center representative where available and, where
appropriate to the particular case under consideration and
available, a child advocacy center representative, and a representative from the licensed domestic violence program serving
the county. The department of health and human resources and any
local law-enforcement agency or agencies selected by the
prosecuting attorney shall appoint their representatives to the
team by submitting a written designation of the team to the
prosecuting attorney of each county within thirty days of the
prosecutor's request that the appointment be made. Within fifteen
days of the appointment, the prosecuting attorney shall notify the
chief judge of each circuit within which the county is situated of
the names of the representatives so appointed. Any other person or
any other appointee of an agency who may contribute to the team's
efforts to assist a minor child as may be determined by the
permanent members of the team may also be appointed as a member of
the team by the prosecutor with notification to the chief judge.
(b) Any permanent member of the multidisciplinary
investigative team shall refer all cases of accidental death of any
child reported to their agency and all cases when a child dies
while in the custody of the state for investigation and review by
the team. The multidisciplinary investigative team shall meet at
regular intervals at least once every calendar month.
(c) The investigative team shall be responsible for
coordinating or cooperating in the initial and ongoing
investigation of all civil and criminal allegations pertinent to cases involving child sexual assault, child sexual abuse, child
abuse and neglect, and shall make a recommendation to the county
prosecuting attorney as to the initiation or commencement of a
civil petition and/or criminal prosecution.
(d) State, county and local agencies shall provide the
multidisciplinary investigative team with any information requested
in writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies
to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remains
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
§49-5D-3. Multidisciplinary treatment planning process.
(a) (1) A multidisciplinary treatment planning process shall
be established within each county of the state, either separately
or in conjunction with a contiguous county, by the secretary of the
department with advice and assistance from the prosecutor's
advisory council as set forth in section four, article four,
chapter seven of this code. The Division of Juvenile Services
shall establish a similar treatment planning process for
delinquency cases in which the juvenile has been committed to the custody of the director of the division.
(2) Treatment teams shall assess, plan and implement a
comprehensive, individualized service plan for children who are
victims of abuse or neglect and their families when a judicial
proceeding has been initiated involving the child or children for
juveniles and their families involved in status offense or
delinquency proceedings when, in a status offense proceeding, the
court refers the juvenile for services pursuant to sections eleven
and eleven-a, article five of this chapter and when, in a
delinquency proceeding, the court is considering placing the
juvenile in the department's custody or placing the juvenile
out-of-home at the department's expense pursuant to the provisions
of section thirteen of said article. In any such status offense or
delinquency case, the juvenile probation officer shall notify the
local office of the Department of Health and Human Resources and
the Division of Juvenile Services at least five working days before
the court proceeding in order to allow the multidisciplinary
treatment team to convene and develop a comprehensive
individualized service plan for the child: Provided, That such
notice is not required in cases where the child is already in state
custody or there exist exigent circumstances which justify taking
the child immediately into custody without a judicial proceeding.
In developing an individualized service plan for a child, the team shall utilize a uniform comprehensive assessment of the child. The
department shall adopt a standard uniform comprehensive assessment
instrument or protocol to be used by treatment teams.
(3) Prior to disposition, in each case in which a treatment
planning team has been convened, the team shall advise the court as
to the types of services the team has determined are needed and the
type of placement, if any, which will best serve the needs of the
child. If the team determines that an out-of-home placement will
best serve the needs of the child, the team shall first consider
placement at facilities or programs located within the state. The
team may only recommend placement in an out-of-state facility if it
concludes, after considering the best interests and overall needs
of the child, that there are no available and suitable in-state
facilities which can satisfactorily meet the specific needs of the
child.
(b) Each treatment team shall be convened and directed by the
child's or family's case manager in the Department of Health and
Human Resources or the Division of Juvenile Services if the
juvenile has been ordered into its custody for examination and
diagnosis pursuant to section thirteen, article five of this
chapter. The treatment team shall consist of the child's custodial
parent or parents, guardian or guardians, other immediate family
members, the attorney or attorneys representing the child, the parent or parents of the child, the child's attorney, the guardian
ad litem, if any, the prosecuting attorney or his or her designee,
a member of a child advocacy center when the child has been
processed through the child advocacy center program(s) and where
appropriate to the particular case under consideration and
available, a court-appointed special advocate, a member of a child
advocacy center, an appropriate school official and any other
person or an agency representative who may assist in providing
recommendations for the particular needs of the child and family.
The child may participate in multidisciplinary treatment team
meetings if such is deemed appropriate by the multidisciplinary
treatment team. For purposes of delinquency proceedings, the
juvenile probation officer shall be a member of the treatment team.
Any person authorized by the provisions of this chapter to convene
a multidisciplinary team meeting may seek and receive an order of
the circuit court setting such meeting and directing attendance.
Members of the multidisciplinary team may participate in team
meetings by telephone or video conferencing: Provided, That a
member of a child advocacy center should participate in any case
when appropriate to the particular case under consideration.
(c) The treatment team shall coordinate its activities and
membership with local family resource networks and coordinate with
other local and regional child and family service planning committees to assure the efficient planning and delivery of child
and family services on a local and regional level.
(d) State, county and local agencies shall provide the
multidisciplinary treatment teams with any information requested in
writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies
to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remain
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
(e) Nothing in this section may be construed to require a
multidisciplinary team meeting to be held prior to temporarily
placing a child out-of-home under exigent circumstances or upon a
court order placing the juvenile in a juvenile facility operated by
the Division of Juvenile Services.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 626--A Bill
to amend and reenact §49-1-3
and §49-1-4 of the Code of West Virginia, 1931, as amended; and to
amend and reenact §49-5D-2 and §49-5D-3 of said code, all relating to child advocacy centers; defining terms; providing for role of
child advocacy center in multidisciplinary teams; and providing for
the role of a child advocacy center in multidisciplinary treatment
teams.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 626, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 626) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 43, Requesting Congress erect
national monument to motherhood, with emphasis on veterans'
mothers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 49, Urging Governor sponsor
establishment and maintenance of state cemetery for veterans.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 50, Requesting WV
congressional delegation sponsor national veterans' cemetery in
southern WV.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 24--Requesting the Division of
Highways to name the bridge designated 70-36-12.62 in Wayne County,
West Virginia, the "Everett Dillon Memorial Bridge".
Whereas, Mr. Everett Dillon was born January 15, 1949 in
Radner, West Virginia and attended Wayne High School; and
Whereas, Everett Dillon after high school joined the United
States Army at the age of 18, where he then served honorably from
1967 to 1970; and
Whereas, Everett Dillon following his service in the United
States Army worked as a pipe-liner/welder until his death; and
Whereas, Everett Dillon was an avid hunter who enjoyed the
outdoors and nature. Most of all Everett Dillon was a people
person. He had a real and genuine love for his fellow man; and
Whereas, Everett Dillon's love for his fellow man drove him to
tirelessly work for the repair and improvement of the bridge
designated 70-36-12.62. His efforts caused much needed repairs to
be made as well as weight limits to be established and posted on
the bridge; and
Whereas, Everett Dillon was not motivated by self-interest in
regard to seeing bridge repaired and weight limits established as
he did not have a need to personally utilize the bridge. He truly
did not want to see anyone hurt or killed should the bridge fail
because of disrepair or driving on the bridge with a vehicle that
exceeded the load bearing capabilities of the structure; and
Whereas, Mr. Everett Dillon died September 1, 1994. He is
survived by his wife Kelly and three children, Shane, Todd, and
Stormy. He is also survived by a brother Henry Dillon of Wayne
County, West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name the bridge designated 70-36-12.62 the "Everett Dillon Memorial Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of
Highways is hereby requested to post signs thereon with words,
printed in bold and prominent fashion, designating the bridge as
the "Everett Dillon Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates is
hereby requested to forward a certified copy of this resolution to
the Secretary of Transportation, the Commissioner of the Division
of Highways and the family of Mr. Everett Dillon.
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 38--Naming the bridge over
40th Street in the Town of Nitro on Interstate 64 between mile
posts 45 and 46 in memory of Staff Sergeant Robert F. White.
Whereas, Robert F. White was born on February 20, 1971, in
Cross Lanes, West Virginia, and later graduated from Nitro High
School; and
Whereas, Robert F. White enlisted in the United States Army
and received basic combat training and advanced individual training
at Fort Benning, Georgia; and
Whereas, After honorably completing his original enlistment
commitment, he reenlisted and was assigned to various locations,
including Camp Greaves in South Korea where he served as a Squadron
Leader with Bravo Company, first Battalion, 506th Infantry, 2nd
Division, attaining the rank of Staff Sergeant; and
Whereas, Staff Sergeant Robert F. White's last assignment was
to Alpha Company, 1st Battalion, 325th Airborne Infantry Regiment,
82nd Airborne, where he held the position of Weapons Squadron
Leader and was deployed in support of "Task Force Gun Devil" to
Kandahar Airfield, Afghanistan; and
Whereas, Staff Sergeant White, while in Kandahar Province in
Afganhistan, led his squadron on numerous joint United States and
Afghanistan company missions and combat patrols on which he
displayed uncommon leadership and valor resulting in the capture of
anti-coalition forces as well as improvised explosive devices,
other weapons and drug caches; and
Whereas, On the 26th day of September, 2005, Staff Sergeant
White, while in the prime of his life and in the line of duty for
this country, was mortally wounded by enemy forces - paying the
ultimate price, leaving behind his beloved wife, Cathy and his
beloved son, Zachary; and
Whereas, This truly patriotic man has been recognized for his
exceptionally meritorious service, tireless work, dedication to the mission and professional excellence in service to his country - in
support of "Operation Enduring Freedom" as well as many other
compellingly essential missions to the security of our nation,
receiving variously the Purple Heart, the Bronze Star, the
Meritorious Service Medal, the Army Achievement Medal, the Army
Good Conduct Medal, the Global War on Terrorism Medal, the National
Defense Service Medal, the Afghanistan Campaign Medal, the Korean
Defense Service Medal and a multitude of other commendations for
his exceptional dedication and service; therefore, be it
Resolved by the Legislature of West Virginia:
That the bridge over 40th Street in the Town of Nitro on
Interstate 64 between mile posts 45 and 46 be named the "Staff
Sergeant Robert F. White Bridge" in memory of this dedicated
patriot who paid the ultimate price for his country; and, be it
Further Resolved, That the Division of Highways is hereby
directed to erect signs at the entrance of each end of the subject
bridge, proclaiming the name of the bridge in prominent lettering
as "The Staff Sergeant Robert F. White Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a certified copy of this Resolution to Staff Sergeant
White's wife Cathy and son Zachary White of Hope Mills, North
Carolina, his parents, Stan and Shirley White of Cross Lanes, West
Virginia, his brothers, William H. White, Jr. Of Hampton, Virginia, and Andrew White of Cross Lanes, West Virginia, his sisters,
Phyllis White-Sellards of Huntington, West Virginia, Christina
White of Cross Lanes, West Virginia, his paternal grandmother, Eva
Mae White of Chesapeake, West Virginia, and to the Division of
Highways.
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 48--Requesting the Joint
Committee on Government and Finance to study sustainable funding
methods to conserve land important to West Virginia's natural
resources and economy.
Whereas, The State of West Virginia's rural character, natural
wonders, scenic beauty, and recreational opportunities combine to
create an exceptional quality of life for its citizens; and
Whereas, West Virginia's landscapes serve as an economic
engine supporting vibrant timber and agricultural industries and
drawing tourists from around the world supporting a large segment
of the State of West Virginia's economy; and
Whereas, West Virginia's unique and important lands provide
all West Virginians hunting, fishing, rafting, hiking and other recreational opportunities important to their health and well-
being; and
Whereas, West Virginia's unique and important lands are
critical to the continued health of the state's wildlife habitats
which are some of the richest places on Earth for certain types of
plants and animals found only in the Appalachians, and West
Virginia's Wildlife Conservation Action Plan, mandated by the
United States Congress, recognizes that habitat loss is a key issue
confronting conservation of the state's valuable fish and wildlife
resources; and
Whereas, The conversion of rural land to developed land in
West Virginia doubled between 1982 and 1997 (NRCS 2001); and
Whereas, West Virginia is lagging behind land conservation
investments being made by over 40 other states, including large
investments in adjoining states, and lack of sustainable funding
for conserving West Virginia's unique and important lands threaten
the very resources that contribute to West Virginia's quality of
life; and
Whereas, Repeated polling shows that more than two-thirds of
West Virginia voters support public spending to help preserve
forests, mountains and natural areas in West Virginia; and
Whereas, It is important for the people of the State of West
Virginia to understand the economic, health, environmental, and quality of life benefits of our forests, farmlands, natural areas,
wildlife habitat, and waters; therefore, be it
Resolved by the Legislature of West Virginia:
That the Committee is hereby requested to study potential
funding mechanisms and sustainable sources of revenue to protect
and conserve West Virginia's most important unique, natural, and
rural lands to ensure the quality of life and economic well-being
of present and future West Virginians; and, be it
Further Resolved, That the Committee report to the regular
session of the Legislature, 2008, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary
to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Natural Resources; and then to
the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 49--Requesting the Division of
Highways to name the bridge crossing the Big Coal River on U. S. 119 between the southbound 69 and 69.5 mile markers, the "Steven
Wayne Smith Memorial Bridge".
Whereas, Steven Wayne Smith was born on November 1, 1971, in
Logan, West Virginia, the only son of James and Diane Smith; and
Whereas, Steven Wayne Smith dedicated his life to supporting
and helping the citizens of West Virginia by graduating from Logan
High School in 1990 and later receiving an Associates degree in
Radiologic Science from the University of Charleston in 1993, where
upon graduation he obtained a position as radiologic technologist
at the Charleston Area Medical Center, eventually being promoted to
Supervisor of Radiology; and
Whereas, Steven Wayne Smith's love of his family and friends,
compassion for colleagues and strangers, and his die hard support
of the West Virginia Mountaineers football program exemplified his
infectious and enthusiastic dedication to the citizens of West
Virginia; and
Whereas, Steven Wayne Smith's passion for the West Virginia
Mountaineers football program was honored at every home football
game last season by publicly dedicating the game to his memory on
the scoreboard on Mountaineer Field in Morgantown, West Virginia;
and
Whereas, Steven Wayne Smith's life was cut short at the Coal
River Bridge on July 30, 2006, devastating his family merely one month before he was set to move into a newly constructed home
located just minutes away from the bridge on U. S. 119 over the Big
Coal River with his wife, Mindy, and three-year old son, Tyler; and
Whereas, Before every home West Virginia Mountaineers football
game, Steven Wayne Smith's family and friends gather at the Big
Coal River Bridge to honor his memory by saying a prayer and
displaying West Virginia University flags and signs as he would
have been doing had his life not abruptly ended; and
Whereas, Steven Wayne Smith's family and friends, all agree
that it would be a great and deserving honor to name the Bridge on
U. S. 119 over the Big Coal River after Steven Wayne Smith, and to
dedicate it to his memory; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name the bridge spanning the Big Coal River on U. S. 119 South,
located between the 69 and 69.5 mile markers in Kanawha County,
West Virginia, the "Steven Wayne Smith Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby
requested to erect appropriate signage at the entryway of each end
of the bridge; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a copy of this resolution to the Commissioner of Highways
and to the Kanawha County Commission.
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 60--Requesting the Committee
on Government and Finance to conduct a study of the requirements
and restrictions for a license to operate a motor vehicle by
individuals with impaired vision, including, but not limited to,
the feasibility and potential benefits and risks of the use of
bioptic telescopic devices by visually impaired persons to qualify
for a license and the feasibility of mandatory vision examination
for license renewal.
Whereas, Many people with low vision are highly motivated to
drive and are willing to take measures such as the use of
corrective or bioptic lenses while driving, while others drive
either without an awareness of a vision impairment or without
regard for their need for vision correction, thus creating a hazard
on the road and a hazard to the safety of others; and
Whereas, West Virginia is one of eleven states that does not
require its citizens to have vision tests upon the renewal of their
driver's licenses; and
Whereas, Vision tests upon the renewal of driver's licenses could potentially be beneficial to drivers who may be unaware of
their vision impairment, and would potentially enhance the safety
of drivers that are unaware that he or she has a vision impairment,
as well as their passengers and others on the road; and
Whereas, Visually impaired individuals should not be
disqualified from being licensed to drive due to their impairment
if corrective vision devices are available to safely correct their
vision to enable the person to safely operate a motor vehicle; and
Whereas, Currently, thirty nine States license "bioptic"
drivers following an individual assessment and screening of the
driver's capabilities; and
Whereas, The Legislature desires to provide adequate measures
to allow visually impaired individuals to be licensed to operate a
motor vehicle if corrective vision measures can be utilized to
enable these individuals to safely operate a motor vehicle; and
Whereas, A collaborative effort composed of Legislative
Members, the Division of Motor Vehicles, the State Police,
ophthalmologists, optometrists and other interested parties would
be desirable to study and devise effective means to provide for
licensure of visually impaired individuals if feasible, and to also
identify drivers that have vision impairments to determine whether
they can safely drive with proper vision correction; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the requirements and restrictions for a license
to operate a motor vehicle by individuals with impaired vision,
including, but not limited to, the feasibility and potential
benefits and risks of the use of bioptic telescopic devices by
visually impaired persons to qualify for a license and the
feasibility of mandatory vision examination for license renewal;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance appoint an interim committee to conduct the study composed
of eleven members, including three members of the Senate appointed
by the President of the Senate, three members of the House of
Delegates appointed by the Speaker of the House of Delegates, the
commissioner of the Division of Motor Vehicles or his or her
designee, the director of the Division of Rehabilitation Services
or his or her designee, an ophthalmologist licensed in this state,
an optometrist licensed in this state and one citizen member with
impaired vision, whose driving vision could potentially benefit by
the use of bioptic telescopic lenses, appointed by the director of
the Division of Rehabilitation Services in consultation with the
President of the Senate and the Speaker of the House of Delegates;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2008, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 67--Requesting the Division of
Highways to name the cable barriers located between mile marker six
and mile marker fifteen, on I-64, the "Brian Keith Paul Cable
Barriers".
Whereas, Brian Keith Paul, born May 18, 1963 to Homer and Ina
Paul of Barboursville, West Virginia, brother to Theresa Paul
Vithalani, father to Megan, Lenza and Bryce Paul, and husband to
Cathy Paul, passed away November 25, 2006, after a courageous
battle with colon cancer; and
Whereas, Brian Keith Paul was a model citizen and a good
father, active in the lives of his children, often volunteering to
coach their various sports teams and determined to teach young
people the value of dedication on and off the field. Indeed,
Brian's motto was "Never Say Can't"; a motto, by which he lived,
and a virtue that guided him in his pursuit to make I-64 safe for
all travelers; and
Whereas, Brian Keith Paul was a third generation mechanic and
vice president of Paul's Garage. As part of his occupation, he
remediated, often fatal, car wrecks and preserved those person'
belongings for collection by loved ones. His experience cleaning
up car accident sites allowed him to witness the devastating
effects car crashes have on people in our community; and
Whereas, Brian, in light of his unique perspective regarding
vehicular accidents, formed the opinion that too many serious
crossover collisions were occurring on said portion of I-64,
particularly for lack of a median barrier; and
Whereas, Brian, in his efforts to better his community,
doggedly pursued the Division of Highways, lobbying them to
construct a barrier in the median between the eastbound and
westbound lanes of said stretch of I-64; and
Whereas, His pursuit took hours of research and countless
phone calls, often resulting in dead ends; and
Whereas, Brian persevered through this difficulty by staying
true to his motto "Never Say Can't" and was successful in
convincing local and state government officials to construct a
median barrier which now spans from mile marker six to mile marker
twenty-seven on I-64 and where this barrier has saved many lives.
As such, the Legislature hereby acknowledges that Brian Keith Paul
was instrumental in initiating the construction of said cable
barrier project and finds that it is right and just to perpetuate
and honor his memory by formally naming that stretch of cable
barriers, the "Brian Keith Paul Cable Barriers"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
name the cable barriers located between mile marker six and mile
marker fifteen, on I-64, the "Brian Keith Paul Cable Barriers";
and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a certified copy of this resolution to the Commissioner of
the Division of Highways and to the family members of the late
Brian Keith Paul.
Referred to the Committee on Transportation and
Infrastructure.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor,
consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 2, 2007
Senate Executive Message No. 4
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nominations for your
advice and consent:
1.For Director, Division of Rehabilitation Services,
Deborah Lovely, South Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
2.For Member, Glenville State College Board of Governors,
Jim Estep, Morgantown, Monongalia County, for the term ending June
30, 2010.
3.For Member, Glenville State College Board of Governors,
Thomas McPherson, Glenville, Gilmer County, for the term ending
June 30, 2010.
Notice of these appointments was previously provided to the
appropriate legislative staff at the time the appointments were
made.
Sincerely,
Joe Manchin III,
Governor.
Which communication was referred to the Committee on
Confirmations and incorporated with the executive nominations
received earlier this session; all to be considered as a special
order of business for Saturday, March 10, 2007, at 11 a.m.
The Senate proceeded to the fourth order of business.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 28, Designating December,
2007, as "West Virginia Legislature's Back to School Month".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 41, Requesting Joint
Committee on Government and Finance study School Aid Formula issues.
And,
Senate Concurrent Resolution No. 47, Requesting Joint
Committee on Government and Finance study mandatory drug testing
for student athletes.
And reports the same back with the recommendation that they
each be adopted; but under the original double committee references
first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
The resolutions, under the original double committee
references, were then referred to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 48, Requesting Legislative
Oversight Commission on Education Accountability explore options to
improve school health.
And has amended same.
And reports the same back with the recommendation that it be
adopted, as amended; but under the original double committee
reference first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules, with amendments from
the Committee on Education pending.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
House Concurrent Resolution No. 29, Requesting the Joint
Committee on Government and Finance to study the establishment of
partnerships between the state's colleges and employers.
And has amended same.
And reports the same back with the recommendation that it be
adopted, as amended; but under the original double committee
reference first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules, with amendments from
the Committee on Education pending.
The Senate proceeded to the sixth order of business.
Senator Unger offered the following resolution:
Senate Concurrent Resolution No. 62--Requesting the Division
of Highways name the new bridge replacing the Low Water Bridge in
Berkeley County the "Allensville Memorial Bridge".
Whereas, After many years of requesting the replacement of the
Low Water Bridge, the Division of Highways approved the
construction and the new bridge was built in 2006. The Blue Heron
Environmental Network, Inc., of Hedgesville, Berkeley County, was
instrumental in gaining support for the new bridge; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name the new bridge replacing the Low Water Bridge in Berkeley
County the "Allensville Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested
to have made and be placed signs identifying the bridge as the
"Allensville Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Secretary of
the Department of Transportation.
Which, under the rules, lies over one day.
Senators Love, White, Tomblin (Mr. President),
Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells and Yoder
offered the following
resolution:
Senate Resolution No. 42--Memorializing the life of the
Honorable Carl E. Gainer, former member of the West Virginia Senate
and dedicated public servant.
Whereas, Carl E. Gainer was born January 19, 1915, in Barbour
County, the son of the late Marvin J. and Pearl Poling Gainer; and
Whereas, Carl E. Gainer earned a B. A. from Alderson-Broaddus
College and underwent graduate studies at Duke University; and
Whereas, Carl E. Gainer was a high school principal in Barbour
County from 1934 to 1941. He served in World War II as a
Lieutenant Commander and Captain of an amphibious ship, the USS LSM
556. After his discharge as Lieutenant Commander in 1946, he
organized Gainer Oil Company. In 1951, he started Richwood Cable
T.V.; and
Whereas, In 1958, the Honorable Carl E. Gainer was elected to
the West Virginia Senate from the 12th senatorial district and
served in the Senate for 24 years. During his tenure in the
Senate, he served as President pro Tempore of the 61st, 62nd, 63rd
and 64th Legislatures. He was a member of the Senate Committees on
Elections, Energy, Industry and Mining, Finance, Interstate Cooperation (Chairman), Natural Resources and Transportation. He
served as chairman of the 17-state Southern Legislative Conference
and was a board member of the National Council of State Governments
and a Commissioner with the Department of Natural Resources; and
Whereas, The Honorable Carl E. Gainer was President and a
member of the West Virginia Cable Television Advisory Board and
National Cable Television Association, Director of Farmers and
Merchants Bank, President of the West Virginia Development
Association and Vice President of All South Rentals in New Orleans,
Louisiana; and
Whereas, The Honorable Carl E. Gainer was a Methodist, Mason,
Shriner, member of BPOE, LOOM, Rotary and American Legion, Veteran
of Foreign Wars, and past Trustee of Alderson-Broaddus College; and
Whereas, The Honorable Carl E. Gainer was the recipient of the
Governor's Distinguished West Virginian Award, the Sears, Roebuck
& Co. Conservation Wildlife Award, the Izaak Walton League
Conservation Award, the West Virginia Wildlife Federation Award and
the U. S. Forest Service Award; and
Whereas, The Honorable Carl E. Gainer was married to his late
beloved wife of 45 years, Clarise, with whom he shared the joy of
having two sons, Walter and Carl, Jr., and a daughter Grace Ann;
and
Whereas, Sadly, the Honorable Carl E. Gainer passed away on August 16, 2006, bringing an end to a long and productive life of
dedication and commitment to his community and state; therefore, be
it
Resolved by the Senate:
That the Senate hereby memorializes the life of the Honorable
Carl E. Gainer, former member of the West Virginia Senate and
dedicated public servant; and, be it
Further Resolved, That the Senate hereby extends its sincere
sympathy at the passing of the Honorable Carl E Gainer; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the family of the Honorable Carl E.
Gainer.
At the request of Senator Love, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Bowman, and by unanimous
consent, the remarks by Senators Fanning, Deem and Helmick
regarding the adoption of Senate Resolution No. 42 were ordered
printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Petitions
Senator Bailey presented a petition from H. Larry Kittle and
numerous West Virginia teachers, requesting the Legislature to
enact the West Virginia Education Association's salary and pay
raise recommendations.
Referred to the Committee on Education.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 63 (originating in the
Committee on Government Organization)--Requesting the Joint
Committee on Government and Finance study regulating the
professional employer organization industry in West Virginia.
Whereas, Professional employer organizations (PEOs) provide
human resource services to small businesses in this state; and
Whereas, PEO services allow small businesses more time to
focus on their business; and
Whereas, PEO services increase the opportunities of small
business employers by developing cost-effective methods to satisfy
their personnel requirements and help provide small business employees with access to certain employment benefits which might
otherwise not be available to them; and
Whereas, The PEO industry is relatively new in West Virginia,
but is quickly growing; and
Whereas, To protect public interest, there may be a need to
regulate the PEO industry; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study
regulating the professional employer organization industry in West
Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2008, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Bowman, the resolution (S. C. R. No. 63)
contained in the preceding report from the Committee on Government
Organization was referred to the Committee on Rules.
Senator Foster, from the Committee on Pensions, submitted the
following report, which was received:
Your Committee on Pensions has had under consideration
Senate Concurrent Resolution No. 64 (originating in the
Committee on Pensions)--
Requesting the Joint Committee on
Government and Finance study the benefits, costs and feasibility of
establishing a West Virginia Universal Voluntary Accounts Program
to assist private employers in offering employees an optional
retirement plan.
Whereas, Approximately 60 percent of West Virginia workers are
not covered by retirement plans at work; and
Whereas, A substantial number of West Virginia workers reach
retirement age without retirement funds or personal savings in an
amount, when added to Social Security income, sufficient to
maintain a healthy, comfortable and secure retirement; and
Whereas, Pension benefits to augment Social Security payments
are critical for the long-term well-being of West Virginia's senior citizens and to protect the state from the burden of caring for
seniors with inadequate incomes; and
Whereas, Administrative and cost hurdles discourage many small
businesses from offering pension benefits to employees; and
Whereas, The provision of a low-cost, convenient and portable
pension plan offering easy participation by small business owners
provides workers a convenient way to invest in their own retirement
security; and
Whereas, A system of defined contribution accounts
administered by the state, but funded entirely by voluntary
employee and employer contributions will encourage employees to
save for their retirement and encourage employers to offer the
benefit; and
Whereas, Other states are studying state-administered
universal voluntary accounts as a means of providing low-cost plans
that offer portability between jobs and immediate and convenient
access with no vesting period; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the benefits, costs and feasibility of
establishing a West Virginia Universal Voluntary Accounts Program
to assist private employers in offering their employees an optional
retirement plan; and, be it
Further Resolved,
That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2008, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Dan Foster,
Chair.
At the request of Senator Foster, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Foster, the resolution (S. C. R. No. 64)
contained in the preceding report from the Committee on Pensions
was referred to the Committee on Rules.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 53, Requesting Joint
Committee on Government and Finance study program for veterans' careers in construction project scheduling.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Military;
and then to the Committee on Rules.
Senate Concurrent Resolution No. 54, Requesting Joint
Committee on Government and Finance study sequestration of
greenhouse gases.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary; and then to the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 758, Supplementing and amending
appropriations from federal funds to Department of Health and Human
Resources, Division of Human Services.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 758) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 758) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 759, Making supplemental appropriation to
Division of Health and Board of Examiners for Registered
Professional Nurses.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 759) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 759) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2718, Authorizing West
Virginia Lottery Table Games at State Racetracks.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent being granted, the unreported Finance
committee amendment to the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18. State Lottery Fund; appropriations and deposits; not
part of general revenue; no transfer of state funds
after initial appropriation; use and repayment of
initial appropriation; allocation of fund for
prizes, net profit and expenses; surplus; State Lottery Education Fund; State Lottery Senior
Citizens Fund; allocation and appropriation of net
profits.
(a) There is hereby continued a special revenue fund in the
State Treasury which shall be designated and known as the State
Lottery Fund. The fund consists of all appropriations to the fund
and all interest earned from investment of the fund and any gifts,
grants or contributions received by the fund. All revenues
received from the sale of lottery tickets, materials and games
shall be deposited with the State Treasurer and placed into the
State Lottery Fund. The revenue shall be disbursed in the manner
provided in this section for the purposes stated in this section
and shall not be treated by the Auditor and Treasurer as part of
the general revenue of the state.
(b) No appropriation, loan or other transfer of state funds
may be made to the commission or Lottery Fund after the initial
appropriation.
(c) A minimum annual average of forty-five percent of the
gross amount received from each lottery shall be allocated and
disbursed as prizes.
(d) Not more than fifteen percent of the gross amount received
from each lottery may be allocated to and may be disbursed as
necessary for fund operation and administration expenses: Provided, That for the period beginning the first day of January,
two thousand two through the thirtieth day of June, two thousand
three the month following the first passage of a referendum
election held pursuant to section seven, article twenty-two-c of
this chapter and for eighteen months thereafter, not more than
seventeen percent of the gross amount received from each lottery
shall be allocated to and may be disbursed as necessary for fund
operation and administration expenses.
(e) The excess of the aggregate of the gross amount received
from all lotteries over the sum of the amounts allocated by
subsections (c) and (d) of this section shall be allocated as net
profit. In the event that the percentage allotted for operations
and administration generates a surplus, the surplus shall be
allowed to accumulate to an amount not to exceed two hundred fifty
thousand dollars. On a monthly basis, the director shall report to
the Joint Committee on Government and Finance of the Legislature
any surplus in excess of two hundred fifty thousand dollars and
remit to the State Treasurer the entire amount of those surplus
funds in excess of two hundred fifty thousand dollars which shall
be allocated as net profit.
(f) After first satisfying the requirements for funds
dedicated to the School Building Debt Service Fund in subsection
(h) of this section to retire the bonds authorized to be issued pursuant to section eight, article nine-d, chapter eighteen of this
code and then satisfying the requirements for funds dedicated to
the Education, Arts, Sciences and Tourism Debt Service Fund in
subsection (I) (i) of this section to retire the bonds authorized
to be issued pursuant to section eleven-a, article six, chapter
five of this code, any and all remaining funds in the State Lottery
Fund shall be made available to pay debt service in connection with
any revenue bonds issued pursuant to section eighteen-a of this
article, if and to the extent needed for such purpose from time to
time. The Legislature shall annually appropriate all of the
remaining amounts allocated as net profits in subsection (e) of
this section, in such proportions as it considers beneficial to the
citizens of this state, to: (1) The Lottery Education Fund created
in subsection (g) of this section; (2) the School Construction Fund
created in section six, article nine-d, chapter eighteen of this
code; (3) the Lottery Senior Citizens Fund created in subsection
(j) of this section; and (4) the Division of Natural Resources
created in section three, article one, chapter twenty of this code
and the West Virginia Development Office as created in section one,
article two, chapter five-b of this code, in accordance with
subsection (k) of this section. No transfer to any account other
than the School Building Debt Service Account, the Education, Arts,
Sciences and Tourism Debt Service Fund, the Economic Development Project Fund created under section eighteen-a, article twenty-two,
chapter twenty-nine of this code or any fund from which debt
service is paid under subsection (c), section eighteen-a of this
article may be made in any period of time in which a default exists
in respect to debt service on bonds issued by the School Building
Authority, the State Building Commission, the Economic Development
Authority or which are otherwise secured by lottery proceeds. No
additional transfer may be made to any account other than the
School Building Debt Service Account and the Education, Arts,
Sciences and Tourism Debt Service Fund when net profits for the
preceding twelve months are not at least equal to one hundred fifty
percent of debt service on bonds issued by the School Building
Authority and the State Building Commission which are secured by
net profits.
(g) There is hereby continued a special revenue fund in the
State Treasury which shall be designated and known as the Lottery
Education Fund. The fund shall consist of the amounts allocated
pursuant to subsection (f) of this section, which shall be
deposited into the Lottery Education Fund by the State Treasurer.
The Lottery Education Fund shall also consist of all interest
earned from investment of the Lottery Education Fund and any other
appropriations, gifts, grants, contributions or moneys received by
the Lottery Education Fund from any source. The revenues received or earned by the Lottery Education Fund shall be disbursed in the
manner provided below and may not be treated by the Auditor and
Treasurer as part of the general revenue of the state. Annually,
the Legislature shall appropriate the revenues received or earned
by the Lottery Education Fund to the state system of public and
higher education for these educational programs it considers
beneficial to the citizens of this state.
(h) On or before the twenty-eighth day of each month, as long
as revenue bonds or refunding bonds are outstanding, the lottery
director shall allocate to the School Building Debt Service Fund
created pursuant to the provisions of section six, article nine-d,
chapter eighteen of this code, as a first priority from the net
profits of the lottery for the preceding month, an amount equal to
one tenth of the projected annual principal, interest and coverage
ratio requirements on any and all revenue bonds and refunding bonds
issued, or to be issued, on or after the first day of April, one
thousand nine hundred ninety-four, as certified to the lottery
director in accordance with the provisions of section six, article
nine-d, chapter eighteen of this code. In no event shall the
monthly amount allocated exceed one million eight hundred thousand
dollars, nor may the total allocation of the net profits to be paid
into the School Building Debt Service Fund, as provided in this
section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or eighteen
million dollars. In the event there are insufficient funds
available in any month to transfer the amount required to be
transferred pursuant to this subsection to the School Debt Service
Fund, the deficiency shall be added to the amount transferred in
the next succeeding month in which revenues are available to
transfer the deficiency. A lien on the proceeds of the State
Lottery Fund up to a maximum amount equal to the projected annual
principal, interest and coverage ratio requirements, not to exceed
twenty-seven million dollars annually, may be granted by the School
Building Authority in favor of the bonds it issues which are
secured by the net lottery profits.
When the school improvement bonds, secured by profits from the
lottery and deposited in the School Debt Service Fund, mature, the
profits shall become available for debt service on additional
school improvement bonds as a first priority from the net profits
of the lottery or may at the discretion of the authority be placed
into the School Construction Fund created pursuant to the
provisions of section six, article nine-d, chapter eighteen of this
code.
(I) (i) Beginning on or before the twenty-eighth day of July,
one thousand nine hundred ninety-six, and continuing on or before
the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery
director shall allocate to the Education, Arts, Sciences and
Tourism Debt Service Fund created pursuant to the provisions of
section eleven-a, article six, chapter five of this code, as a
second priority from the net profits of the lottery for the
preceding month, an amount equal to one tenth of the projected
annual principal, interest and coverage ratio requirements on any
and all revenue bonds and refunding bonds issued, or to be issued,
on or after the first day of April, one thousand nine hundred
ninety-six, as certified to the lottery director in accordance with
the provisions of that section. In no event may the monthly amount
allocated exceed one million dollars nor may the total allocation
paid into the Education, Arts, Sciences and Tourism Debt Service
Fund, as provided in this section, in any fiscal year exceed the
lesser of the principal and interest requirements certified to the
lottery director or ten million dollars. In the event there are
insufficient funds available in any month to transfer the amount
required pursuant to this subsection to the Education, Arts,
Sciences and Tourism Debt Service Fund, the deficiency shall be
added to the amount transferred in the next succeeding month in
which revenues are available to transfer the deficiency. A
second-in-priority lien on the proceeds of the State Lottery Fund
up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed fifteen
million dollars annually, may be granted by the State Building
Commission in favor of the bonds it issues which are secured by the
net lottery profits.
When the bonds, secured by profits from the lottery and
deposited in the Education, Arts, Sciences and Tourism Debt Service
Fund, mature, the profits shall become available for debt service
on additional bonds as a second priority from the net profits of
the lottery.
(j) There is hereby continued a special revenue fund in the
State Treasury which shall be designated and known as the Lottery
Senior Citizens Fund. The fund shall consist of the amounts
allocated pursuant to subsection (f) of this section, which amounts
shall be deposited into the Lottery Senior Citizens Fund by the
State Treasurer. The Lottery Senior Citizens Fund shall also
consist of all interest earned from investment of the Lottery
Senior Citizens Fund and any other appropriations, gifts, grants,
contributions or moneys received by the Lottery Senior Citizens
Fund from any source. The revenues received or earned by the
Lottery Senior Citizens Fund shall be distributed in the manner
provided below and may not be treated by the Auditor or Treasurer
as part of the general revenue of the state. Annually, the
Legislature shall appropriate the revenues received or earned by the Lottery Senior Citizens Fund to such any senior citizens
medical care and other programs as it considers beneficial to the
citizens of this state.
(k) The Division of Natural Resources and the West Virginia
Development Office, as appropriated by the Legislature, may use the
amounts allocated to them pursuant to subsection (f) of this
section for one or more of the following purposes: (1) The payment
of any or all of the costs incurred in the development,
construction, reconstruction, maintenance or repair of any project
or recreational facility, as these terms are defined in section
four, article five, chapter twenty of this code, pursuant to the
authority granted to it under said article; (2) the payment,
funding or refunding of the principal of, interest on or redemption
premiums on any bonds, security interests or notes issued by the
parks and recreation section of the Division of Natural Resources
under said article; or (3) the payment of any advertising and
marketing expenses for the promotion and development of tourism or
any tourist facility or attraction in this state.
ARTICLE 22A. RACETRACK VIDEO LOTTERY ACT.
§29-22A-10c. Surcharge; capital reinvestment fund.
(a) For all fiscal years beginning on or after the first day
of July, two thousand one, there shall be imposed a surcharge of
ten percent against the excess of total net terminal income generated from a licensed racetrack for that fiscal year over total
net terminal income from that licensed racetrack for the fiscal
year ending the thirtieth day of June, two thousand one.
(b) A Capital Reinvestment Fund is hereby created within the
lottery fund. Forty-two percent of the surcharge amount
attributable to each racetrack shall be retained by the commission
and deposited into a separate Capital Reinvestment Account for that
licensed racetrack. For each dollar expended by a licensed
racetrack for capital improvements at the racetrack, and at the
location of any amenity associated with the licensed racetrack's
destination resort facility operations or at adjacent facilities
owned by the licensee, having a useful life of fifteen seven or
more years and placed in service after the first day of April, two
thousand one, the licensed racetrack shall receive one dollar in
recoupment from its Capital Reinvestment Fund Account: Provided,
That in the case of thoroughbred horse tracks, four cents of every
dollar in recoupment shall be reserved into a separate account,
which shall only be spent on capital improvements and upgrading in
the barn area or other areas at the track to facilities used for
the housing and care of horses, facilities located inside the
perimeter of the racing surface, including the surface thereof,
facilities used for housing persons responsible for the care of
horses and that any such capital improvements and upgrading shall be subject to recoupment under this section only if they have been
approved by the Horsemen's Benevolent and Protective Association
acting on behalf of the horsemen: Provided, however, That in the
case of greyhound race tracks, four cents of every dollar in
recoupment shall be spent on capital improvements and upgrading in
the kennel area or other areas at the track approved by the Racing
Commission. If a licensed racetrack's unrecouped capital
improvements exceed its capital reinvestment fund account at the
end of any fiscal year, the excess improvements may be carried
forward to three seven subsequent fiscal years.
(c) Fifty-eight percent of the surcharge amount plus any
moneys remaining in a racetrack's Capital Reinvestment Fund Account
at the end of any fiscal year shall be deposited in the State
Excess Lottery Revenue Fund created in section eighteen-a, article
twenty-two of this chapter.
ARTICLE 22C. WEST VIRGINIA LOTTERY RACETRACK TABLE GAMES ACT.
§29-22C-1. Short title.
This article shall be known and may be cited as the West
Virginia Lottery Racetrack Table Games Act.
§29-22C-2. State authorization of table games at licensed
racetrack facilities; legislative findings and
declarations.
(a) Operation of West Virginia lottery table games. -- Notwithstanding any provision of law to the contrary, the operation
of West Virginia lottery racetrack table games and ancillary
activities at a licensed racetrack and the playing of those West
Virginia lottery table games at a licensed racetrack are only
lawful when conducted in accordance with the provisions of this
article and rules of the commission.
(b) Legislative findings. -
(1) The Legislature finds that horse racing and dog racing and
breeding play a critical role in the economy of this state, enhance
the revenue collected at the racetracks, contribute vital revenues
to the counties and municipalities in which the activities are
conducted, provide for significant employment and protect and
preserve greenspace and that a substantial state interest exists in
protecting these industries. Furthermore, it finds that the
breeding and racing of thoroughbred horses is an integral part of
West Virginia's agriculture and that agriculture is a critical
ingredient in West Virginia's economy. It further finds that the
operation of table games pursuant to this article, at the four
existing racetracks in this state that hold racetrack video lottery
licenses and licenses to conduct horse or dog racing, will protect
and preserve the horse racing and dog racing industries and horse
and dog breeding industries, will protect and enhance the tourism
industry in this state and indirectly benefit other segments of the economy of this state.
(2) The Legislature finds that, pursuant to section thirty-
six, article VI of the Constitution of the State of West Virginia
grants exclusively to the state the right to lawfully own and
operate a lottery in this state.
(3) The Legislature finds that recognized principals of
ownership allow an owner to maintain ownership while operating an
enterprise through agents and licensees.
(4) The Legislature finds that it is in the best interest of
the State of West Virginia for the state to operate a lottery in
the form of table games.
(5) The Legislature finds that the table games authorized
under the provisions of this article are lotteries as each game
involves consideration, the possibility of a prize and their
outcome is determined predominantly by chance, which the common law
of West Virginia has long held are the three essential elements of
a lottery.
(6) The Legislature finds that the lottery authorized by the
provisions of this article is the exclusive intangible intellectual
property of the State of West Virginia as are the other versions of
lottery authorized under this chapter.
(7) The Legislature finds that the most effective manner in
which the state can operate and regulate the forms of lottery authorized by the provisions of this article is to do so through
licensees and further that effective operation and regulation
requires limiting the number of locations at which the lottery and
lottery games so authorized are allowed.
(8) The Legislature finds that limiting such table games as
authorized under this article to facilities authorized by the
provisions of article twenty-three, chapter nineteen of this code
which are licensed pursuant to the provisions of article twenty-
two-a of this chapter to operate video lottery terminals is the
most efficient and effective manner in which to regulate licensees.
(9) The Legislature finds that the granting of licenses
pursuant to the provisions of this article while maintaining all
ownership rights and exercising control through strict regulation
of all West Virginia lottery table games authorized by the
provisions of this article constitutes an appropriate exercise by
the Legislature of the power granted it by the constitution
pursuant to the provisions of section thirty-six, article VI of the
Constitution of West Virginia.
(10) The Legislature finds that the operation of West Virginia
lottery table games at racetracks licensed pursuant to the
provision of article twenty-two-a of this chapter and by the
provisions of article twenty-three, chapter nineteen of this code
serves to protect, preserve and promote the horse and dog racing and breeding industries of this state and will serve to protect,
promote and enhance the tourism industry of the state as well as
the general fiscal well-being of the state and its subdivisions.
§29-22C-3. Definitions.
(a) Applicability of definitions. -- For the purposes of this
article, the words or terms defined in this section, and any
variation of those words or terms required by the context, have the
meanings ascribed to them in this section. These definitions are
applicable unless a different meaning clearly appears from the
context in which the word or term is used.
(b) Terms defined. --
(1) "Adjusted gross receipts" means gross receipts from West
Virginia Lottery table games less winnings paid to patrons wagering
on the racetrack's table games.
(2) "Applicant" means any person who on his or her own behalf,
or on behalf of another, has applied for permission to engage in
any act or activity that is regulated under the provision of this
article for which a license is required by this article or rule of
the commission.
(3) "Application" means any written request for permission to
engage in any act or activity that is regulated under the
provisions of this article submitted in the form prescribed by the
commission.
(4) "Background investigation" means a security, criminal and
credit investigation of an applicant who has applied for the
issuance or renewal of a license pursuant to this article, or a
licensee who holds a current license.
(5) "Commission" or "State Lottery Commission" means the West
Virginia Lottery Commission created by article twenty-two of this
chapter.
(6) "Complimentary" means a service or item provided at no
cost or at a reduced price.
(7) "Compensation" means any money, thing of value, or
financial benefit conferred or received by a person in return for
services rendered, or to be rendered, whether by that person or
another.
(8) "Contested case" means a proceeding before the commission,
or a hearing examiner designated by the commission to hear the
contested case, in which the legal rights, duties, interests or
privileges of specific persons are required by law or
constitutional right to be determined after a commission hearing,
but does not include cases in which the commission issues a
license, permit or certificate after an examination to test the
knowledge or ability of the applicant where the controversy
concerns whether the examination was fair or whether the applicant
passed the examination and does not include rule making.
(9) "Control" means the authority directly or indirectly to
direct the management and policies of an applicant for a license
issued under this article or the holder of a license issued under
this article.
(10) "Designated gaming area" means one or more specific floor
areas of a licensed racetrack within which the commission has
authorized operation of racetrack video lottery terminals or table
games, or the operation of both racetrack video lottery terminals
and West Virginia Lottery table games.
(11) "Director" means the Director of the West Virginia State
Lottery Commission appointed pursuant to section six, article
twenty-two of this chapter.
(12) "Disciplinary action" is an action by the commission
suspending or revoking a license, fining, excluding, reprimanding
or otherwise penalizing a person for violating this article or
rules promulgated by the commission.
(13) "Financial interest" or "financially interested" means
any interest in investments, awarding of contracts, grants, loans,
purchases, leases, sales or similar matters under consideration for
consummation by the commission. A member, employee or agent of the
commission will be considered to have a financial interest in a
matter under consideration if any of the following circumstances
exist:
(A) He or she owns one percent or more of any class of
outstanding securities that are issued by a party to the matter
under consideration by the commission; or
(B) He or she is employed by an independent contractor for a
party to the matter under consideration or consummated by the
commission.
(14) "Gaming equipment" means gaming tables, cards, dice,
chips, shufflers, drop boxes or any other mechanical, electronic or
other device, mechanism or equipment or related supplies used or
consumed in the operation of any West Virginia Lottery table game
at a licensed racetrack.
(15) "Gross receipts" means the total of all sums including
valid or invalid checks, currency, tokens, coupons (excluding match
play coupons), vouchers or instruments of monetary value whether
collected or uncollected, received by a racetrack with table games
from table gaming operations at a race track, including all entry
fees assessed for tournaments or other contests.
(16) "Indirect ownership" means an interest a person owns in
an entity or in property solely as a result of application of
constructive ownership rules without regard to any direct ownership
interest (or other beneficial interest) in the entity or property.
"Indirect ownership" shall be determined under the same rules
applicable to determining whether a gain or loss between related parties is recognized for federal income tax purposes.
(17) "Licensed racetrack" means a thoroughbred horse or
greyhound dog racing facility licensed under both article
twenty-two-a of this chapter and article twenty-three, chapter
nineteen of this code.
(18) "License" means any license applied for or issued by the
commission under this article, including, but not limited to:
(A) A license to act as agent of the commission in operating
West Virginia Lottery table games at a licensed racetrack;
(B) A license to supply a racetrack licensed under this
article to operate table games with table gaming equipment or
services necessary for the operation of table games;
(C) A license to be employed at a racetrack licensed under
this article to operate West Virginia Lottery table games when the
employee works in a designated gaming area that has table games or
performs duties in furtherance of or associated with the operation
of table games at the licensed racetrack; or
(D) A license to provide management services under a contract
to a racetrack licensed under this article to operate table games.
(19) "Licensee" means any person who is licensed under any
provision of this article.
(20) "Lottery" means the public gaming systems or games
regulated, controlled, owned and operated by the State Lottery Commission in the manner provided by general law, as provided in
this article and in articles twenty-two, twenty-two-a, twenty-two-b
and twenty-five of this chapter.
(21) "Member" means a commission member appointed to the West
Virginia Lottery Commission under article twenty-two of this
chapter.
(22) "National criminal history background check system" means
the criminal history record system maintained by the Federal Bureau
of Investigation based on fingerprint identification or any other
method of positive identification.
(23) "Own" means any beneficial or proprietary interest in any
real or personal property, including intellectual property, and
also includes, but is not limited to, any direct or indirect
beneficial or proprietary interest in any business of an applicant
or licensee.
(24) "Person" means any natural person, and any corporation,
association, partnership, limited liability company, limited
liability partnership, trust or other entity, regardless of its
form, structure or nature other than a government agency or
instrumentality.
(25) "Player" or "patron" means a person who plays a racetrack
video lottery game or a West Virginia Lottery table game at a
racetrack licensed under this article to have table games.
(26) "Player's account" means a financial record established
by a licensed racetrack for an individual racetrack patron to which
the racetrack may credit winnings and other amounts due to the
racetrack patron and from which the patron may withdraw moneys due
to the patron for purchase of tokens, chips or electronic media or
other purposes.
(27) "Racetrack table games license" means authorization
granted under this article by the commission to a racetrack that is
already licensed under article twenty-two-a of this chapter to
operate racetrack video lottery terminals and holds a valid racing
license granted by the West Virginia Racing Commission pursuant to
the provision of article twenty-three, chapter nineteen of this
code, which permits the racetrack as an agent of the commission for
the limited purpose of operation of West Virginia Lottery table
games in one or more designated gaming areas in one or more
buildings owned by the licensed racetrack on the grounds where live
pari-mutuel racing is conducted by the licensee.
(28) "Racetrack Table Games Fund" means the special fund in
the State Treasury created in section twenty-seven of this article.
(29) "Significant influence" means the capacity of a person to
affect substantially (but not control) either, or both, of the
financial and operating policies of another person.
(30) "Supplier" means a person who the commission has identified under legislative rules of the commission as requiring
a license to provide a racetrack table games licensee with goods or
services to be used in connection with operation of table games.
(31) "Wager" means a sum of money or thing of value risked on
an uncertain occurrence.
(32) "West Virginia Lottery table game" means any game played
with cards, dice or any mechanical, electromechanical or electronic
device or machine for money, credit or any representative of value,
including, but not limited to, baccarat, blackjack, poker, craps,
roulette, wheel of fortune or any variation of these games similar
in design or operation and expressly authorized by rule of the
commission, including multiplayer electronic table games, machines
and devices, but excluding video lottery, punchboards, faro,
numbers tickets, push cards, jar tickets, pull tabs or similar
games.
(33) "Winnings" means the total cash value of all property or
sums including currency, tokens, or instruments of monetary value
paid to players as a direct result of wagers placed on West
Virginia Lottery table games.
§29-22C-4. Commission duties and powers.
(a) Duties. -- In addition to the duties set forth elsewhere
in this article or in articles twenty-two, twenty-two-a,
twenty-two-b and twenty-five of this chapter, the commission shall:
(1) Establish minimum standards for gaming equipment,
including, but not limited to, electronic and mechanical gaming
equipment;
(2) Enter into licensing agreements with facilities eligible
to operate West Virginia Lottery table games for the state,
providing criteria and guidelines for preservation of the state's
ownership, operation and control interests as provided by general
law herein;
(3) Approve, modify or reject game rules of play proposed by
the licensee for West Virginia Lottery table games proposed to be
operated at a licensed racetrack;
(4) Approve, modify or reject minimum internal control
standards proposed by the licensee governing racetrack table game
operations, including the maintenance of financial records;
(5) Approve staff considered necessary by the director to
oversee, inspect and monitor the operation of table games at any
racetrack licensed under this article and article twenty-two-a of
this chapter, including, but not limited to, inspection of
designated gaming areas, gaming equipment and security equipment
used in the operation of table games to assure continuous
compliance with the provisions of this article, required license
conditions and terms and applicable rules of the commission;
(6) Determine eligibility of a person to hold or continue to hold a license issued under this article;
(7) Issue all licenses;
(8) Maintain a record of all licenses issued;
(9) Levy and collect the taxes imposed by this article and the
fees, surcharges and civil penalties authorized, required or
specified in this article or the legislative rules of the
commission and receive, accept and pay all taxes, fees, surcharges
and civil penalties collected under this article into the Racetrack
Table Games Fund, except as otherwise provided under this article;
and
(10) Keep a public record of all commission actions and
proceedings with respect to West Virginia Lottery table games.
(b) Powers. -- In addition to the powers set forth elsewhere
in this article or in articles twenty-two, twenty-two-a,
twenty-two-b and twenty-five of this chapter, the commission may:
(1) Sue to enforce any provision of this article or any rule
of the commission, whether by civil action or petition for
injunctive relief;
(2) Hold hearings, administer oaths and issue subpoenas for
attendance of witnesses to testify or subpoenas duces tecum for the
production of documents or other evidence;
(3) Enter a licensed racetrack with West Virginia Lottery
table games at any time and without notice to ensure strict compliance with this article and with the rules of the commission;
(4) Bar, for cause, any person from:
(A) Entering a designated gaming area of a licensed racetrack
with table games, or the grounds of a racetrack licensed under this
article; or
(B) Participating in any capacity in the play of any West
Virginia Lottery table game or in the operation of West Virginia
Lottery table games;
(5) Promulgate, or propose for promulgation, in accordance
with the provision of article three, chapter twenty-nine-a of this
code, any legislative, interpretive and procedural rules the
commission considers necessary for the successful implementation,
administration and enforcement of this article and to amend or
revoke any promulgated rule, in accordance with provisions of
article three, chapter twenty-nine-a of this code, at the
discretion of the commission. Any rule proposed by the commission
before the first day of September, two thousand seven, may be
promulgated as an emergency rule;
(6) Upon the effective date of this article and prior to
promulgation of emergency rules, the commission may accept
applications, evaluate qualifications of applicants and undertake
initial review of licenses for: Racetracks under section eight of
this article; suppliers under section eleven of this article; racetrack employees under section twelve of this article; and
providers of management services under section thirteen of this
article; and
(7) Exercise any other powers necessary to effectuate the
provisions of this article and the rules of the commission.
§29-22C-5. Appointment of commission staff; conditions of
employment.
(a) The director, with the approval of the commission, may
appoint any professional, clerical, technical and administrative
personnel, who shall be state employees hired in accordance with
article six, chapter twenty-nine of this code, which the director
considers necessary to carry out the provisions of this article.
Prior to his or her appointment, each applicant for a position
shall provide his or her fingerprints and shall undergo a thorough
background investigation.
(b) No commission employee may directly or indirectly hold an
ownership or a financial interest in any racetrack table game
license, or a supplier license, or a management services license,
or in a holding company that owns the license, or in a business
related to the license for federal income tax purposes, or be an
applicant for any of these licenses.
(c) No commission employee may knowingly wager or be paid any
prize from any wager at any licensed racetrack with West Virginia Lottery table games within this state or at any facility outside
this state or this country that is directly or indirectly owned or
operated:
(1) By a racetrack table games licensee that is licensed
pursuant to this article; or
(2) By any person who directly or indirectly owns the
racetrack table games license.
§29-22C-6. Licenses required.
(a) No person may engage in any activity in connection with a
racetrack with West Virginia Lottery table games in this state for
which a license is required by this article or rules of the
commission unless all necessary licenses have been obtained in
accordance with this article and rules of the commission.
(b) Licenses are required for the following purposes:
(1) For any person operating a racetrack West Virginia Lottery
table game in the state;
(2) For any person supplying a racetrack table games licensee
with gaming equipment or gaming equipment services;
(3) For any individual employed by a racetrack table games
licensee in connection with the operation of West Virginia Lottery
table games in the state; and
(4) For any person providing management services under a
contract to a racetrack table games licensee.
(c) The commission may not grant a license to an applicant
until the commission determines that each person who has control of
the applicant also meets all of the qualifications the applicant
must meet to hold the license for which application is made. The
following persons are considered to have control of an applicant:
(1) Each person associated with a corporate applicant,
including any corporate holding company, parent company or
subsidiary company of the applicant, but not including a bank or
other licensed lending institution which holds a mortgage or other
lien acquired in the ordinary course of business, who has the
ability to control the activities of the corporate applicant or
elect a majority of the board of directors of that corporation;
(2) Each person associated with a noncorporate applicant who
directly or indirectly holds any beneficial or proprietary interest
in the applicant or who the commission determines to have the
ability to control the applicant; and
(3) Key personnel of an applicant, including any executive,
employee or agent, having the power to exercise significant
influence over decisions concerning any part of the applicant's
business operation.
(d) Any license required by this article or rules of the
commission is in addition to all other licenses or permits required
by applicable federal, state or local law.
§29-22C-7. Local option election.
(a) No racetrack may be licensed under this article to operate
West Virginia Lottery table games until a local option election is
held in the county in which pari-mutuel wagers are received at a
racetrack licensed under article twenty-three, chapter nineteen of
this code and the voters of that county voting on the question
approve having West Virginia Lottery table games at the racetrack.
(b) The county commission shall place the question on the
ballot upon the receipt of a written notice from a licensed
racetrack located within that county requesting that the question
be placed on the ballot.
(c) The county commission of the county in which table games
would be located shall give notice to the public of the election by
publication of the notice 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 shall be
the county in which the election is to be held. The date of the
last publication of the notice shall fall on a date at least thirty
days preceding the day of the election. A local option election
shall be effective even though the date of the order of the county
commission setting the election or the date of publication of
notice of the election is prior to the effective date of this
article if the election is otherwise held in accordance with the provisions of this section.
(d) On the local option election ballot shall be printed the
following:
Shall West Virginia Lottery table games be permitted at the
[name of licensed racetrack]?
[ ] Yes[ ] No
(Place a cross mark in the square next to your choice.)
(e) The local option election shall be held in conjunction
with the next primary or general election scheduled more than
ninety days following receipt by the county commission of the
notice required by this section or at a special election:
Provided, That upon written request by the licensed racetrack that
a special election be called, the county commission shall order a
special election to be held on the question within ninety days
after the receipt by the county commission of that request. The
county commission may require the licensed racetrack to pay the
entire cost incurred by the county to hold the special election.
Approval shall be by a majority of the voters casting votes at the
election on the question of approval or disapproval of West
Virginia Lottery table games at a licensed racetrack.
(f) If the majority votes against allowing table games at a
licensed racetrack, no election on the issue shall be held for a
period of one hundred four weeks. A local option election may thereafter be held in the manner provided in this section. The
process to hold another election on the question shall start anew,
as if no prior request for an election on the question had been
filed with county commission and as if there had been no prior
election on the question.
(g) If the majority votes for allowing West Virginia Lottery
table games at a licensed racetrack facility in a county, another
local option election on the issue shall not be held for a period
of five years. A local option election may thereafter be held if
a written petition of qualified voters residing within the county
equal to at least five percent of the number of persons who were
registered to vote in the next preceding general election is
received by the county commission of the county in which the horse
or dog racetrack is located. The petition may be in any number of
counterparts. The petition shall be in the following form:
Petition For Local Option Election
We, the undersigned legally qualified voters, resident within
the County of __________________, do hereby petition that a special
election be held within the County of _________________ upon the
following question: Shall West Virginia Lottery table games be
permitted at the [name of racetrack]?
NameAddressDate
(Post office or street address)
§29-22C-8. License to operate a racetrack with West Virginia
Lottery table games.
(a) Racetrack table games licenses. -- The commission may
issue up to four racetrack table games licenses to operate West
Virginia Lottery table games in accordance with the provisions of
this article. The Legislature intends that no more than four
licenses to operate a racetrack with West Virginia Lottery table
games in this state shall be permitted in any event.
(b) Grant of license. -- Upon the passage of a local option
election in a county in accordance with the provisions of section
seven of this article, the commission shall immediately grant a
West Virginia Lottery table games license, and a license for the
right to conduct West Virginia Lottery table games as assignee to
the intellectual property rights of the state, to allow the
licensee to conduct West Virginia table games at the licensed pari-
mutuel racetrack identified on the local option election ballot,
provided that racetrack holds a valid racetrack video lottery
license issued by the commission pursuant to article twenty-two-a
of this chapter and a valid racing license granted by the West
Virginia Racing Commission pursuant to the provision of article
twenty-three, chapter nineteen of this code and has otherwise met
the requirements for licensure under the provisions of this article
and the rules of the commission.
(c) Location. -- A racetrack table games license authorizes
the operation of West Virginia Lottery table games on the grounds
of the particular licensed facility identified in the racetrack
video lottery license issued pursuant to article twenty-two-a of
this code and the license to conduct horse or dog racing issued
pursuant to article twenty-three, chapter nineteen of this code.
(d) Floor plan submission requirement. -- Prior to commencing
the operation of any table games in a designated gaming area, a
racetrack table games licensee shall submit to the commission for
its approval a detailed floor plan depicting the location of the
designated gaming area in which table games gaming equipment will
be located and its proposed arrangement of the table games gaming
equipment. Any floor plan submission that satisfies the
requirements of the rules promulgated by the commission shall be
considered approved by the commission unless the racetrack table
games licensee is notified in writing to the contrary within one
month of filing a detailed floor plan.
(e) Management service contracts. --
(1) Approval. -- A racetrack table games licensee may not
enter into any management service contract that would permit any
person other than the licensee to act as the commission's agent in
operating West Virginia Lottery table games unless the management
service contract is: (A) With a person licensed under this article to provide management services; (B) is in writing; and (C) the
contract has been approved by the commission.
(2) Material change. -- The licensed racetrack table games
licensee shall submit any material change in a management service
contract previously approved by the commission to the commission
for its approval or rejection before the material change may take
effect.
(3) Prohibition on assignment or transfer. -- A management
services contract may not be assigned or transferred to a third
party.
(4) Other commission approvals and licenses. -- The duties and
responsibilities of a management services provider under a
management services contract may not be assigned, delegated,
subcontracted or transferred to a third party to perform without
the prior approval of the commission. Third parties must be
licensed under this article before providing service. The
commission may by rule clarify application of this subdivision and
provide exceptions to its application. The commission shall
license and require the display of West Virginia Lottery game logos
on appropriate game surfaces and other gaming items and locations
as the commission considers appropriate.
(f) Coordination of licensed activities. -- In order to
coordinate various licensed activities within racetrack facilities, the following provisions apply to licensed racetrack facilities:
(1) The provisions of this article and of article twenty-two-a
of this chapter shall be interpreted to allow West Virginia Lottery
table games and racetrack video lottery operations under those
articles to be harmoniously conducted in the same designated gaming
area.
(2) On the effective date of this article, the provisions of
section twenty-one of this article apply to all video lottery games
conducted within a racetrack facility, notwithstanding any
inconsistent provisions contained in article twenty-two-a of this
chapter to the contrary.
(3) On and after the effective date of this article, vacation
of the premises after service of beverages ceases is not required,
notwithstanding to the contrary any inconsistent provisions of this
code or inconsistent rules promulgated by the Alcohol Beverage
Control Commissioner with respect to hours of sale of those
beverages, or required vacation of the premises.
(g) Fees, expiration date and renewal. --
(1) An initial racetrack table games license fee of one
million five hundred thousand dollars shall be paid to the
commission at the time of issuance of the racetrack table games
license, regardless of the number of months remaining in the
license year for which it is issued. All licenses expire at the end of the day on the thirtieth day of June each year.
(2) The commission shall annually renew a racetrack table
games license as of the first day of July of each year provided the
licensee:
(A) Successfully renews its racetrack video lottery license
under article twenty-two-a of this chapter before the first day of
July;
(B) Pays to the commission the annual license renewal fee of
two million five hundred thousand dollars required by this section
at the time it files its application for renewal of its license
under article twenty-two-a of this chapter; and
(C) During the current license year, the licensee complied
with all provisions of this article, all rules adopted by the
commission and all final orders of the commission applicable to the
licensee.
(3) Annual license surcharge for failure to construct hotel on
premises -- It is the intent of the Legislature that each racetrack
for which a racetrack table games license has been issued be or
become a destination tourism resort facility. To that end, it is
important that each racetrack for which a racetrack table games
license has been issued operate a hotel with significant amenities.
Therefore, in addition to all other taxes and fees required by the
provisions of this article, there is hereby imposed, upon each racetrack for which a racetrack table games license has been issued
an annual license surcharge, payable to the commission in the
amount of two million five hundred thousand dollars if that
racetrack does not operate a hotel on its racing property that
contains at least one hundred fifty guest rooms with significant
amenities within three years of the passage of the local option
election in its county authorizing table games at the racetrack,
provided the time for completion of the hotel shall be extended by
the same number of days as the completion of the hotel is delayed
by a force majeure events or conditions beyond the reasonable
control of the racetrack licensee. The surcharge shall be paid
upon each renewal of its racetrack table games license made after
the expiration of the three-year period and may be extended by the
above force majeure events or conditions until the racetrack opens
a qualifying hotel.
(4) If the licensee fails to apply to renew its license under
article twenty-three, chapter nineteen of this code and article
twenty-two-a, chapter twenty-nine of this code until after the
license expires, the commission shall renew its license under this
article at the time it renews its license under article twenty-two-
a of this chapter provided the licensee has paid the annual license
fee required by this section and during the preceding license year
the licensee complied with all provisions of this article, all rules adopted by the commission and all final orders of the
commission applicable to the licensee.
(h) Facility qualifications. -- A racetrack table games
licensee shall demonstrate that the racetrack with West Virginia
Lottery table games will: (1) Be accessible to disabled
individuals in accordance with applicable federal and state laws;
(2) be licensed in accordance with this article and all other
applicable federal, state and local laws; and (3) meet any other
qualifications specified in rules adopted by the commission.
(i) Surety bond. -- A racetrack table games licensee shall
execute a surety bond to be given to the state to guarantee the
licensee faithfully makes all payments in accordance with the
provisions of this article and rules promulgated by the commission.
The surety bond shall be:
(1) In the amount determined by the commission to be adequate
to protect the state against nonpayment by the licensee of amounts
due the state under this article;
(2) In a form approved by the commission; and
(3) With a surety approved by the commission who is licensed
to write surety insurance in this state. The bond shall remain in
effect during the term of the license and may not be canceled by a
surety on less than thirty days' notice in writing to the
commission. The total and aggregate liability of the surety on the bond is limited to the amount specified in the bond.
(j) Authorization. -- A racetrack table games license
authorizes the licensee act as an agent of the commission in
operating an unlimited amount of West Virginia Lottery table games
while the license is active, subject to subsection (d) of this
section. A racetrack table games license is not transferable or
assignable and cannot be sold or pledged as collateral.
(k) Audits. -- When applying for a license and annually
thereafter prior to license renewal, a racetrack table games
licensee shall submit to the commission an annual audit, by a
certified public accountant, of the financial transactions and
condition of the licensee's total operations. The audit shall be
made in accordance with generally accepted accounting principles
and applicable federal and state laws.
(l) Commission office space. -- A racetrack table games
licensee shall provide to the commission, at no cost to the
commission, suitable office space at the racetrack facility for the
commission to perform the duties required of it by this article and
the rules of the commission.
§29-22C-9. State ownership of table games.
All table games authorized by this article shall be West
Virginia lottery games owned by the State of West Virginia. A
racetrack table games license granted to a pari-mutuel racetrack by the commission pursuant to this article shall include the transfer
by the commission to the racetrack limited license rights in and to
the commission's intellectual property ownership of the West
Virginia lottery games which includes granting licensees limited
lawful authority relating to the conduct of lottery table games for
consideration, within the terms and conditions established pursuant
to this article and any rules promulgated under this article.
§29-22C-10. Duties of racetrack table games licensee.
(a) General. -- All racetrack table games licensees shall:
(1) Promptly report to the commission any facts or
circumstances related to the operation of a racetrack with West
Virginia Lottery table games which constitute a violation of state
or federal law;
(2) Conduct all table games activities and functions in a
manner which does not pose a threat to the public health, safety or
welfare of the citizens of this state and which does not adversely
affect the security or integrity of the operation of West Virginia
Lottery table games;
(3) Hold the commission and this state harmless from and
defend and pay for the defense of any and all claims which may be
asserted against a racetrack licensee, the commission, the state or
employees thereof arising from the licensee's actions or omission
while acting as an agent of the commission by operation of West Virginia Lottery table games pursuant to this article;
(4) Assist the commission in maximizing table games revenues;
(5) Give preference in hiring to existing employees who have
expressed an interest in transferring to an entry level West
Virginia Lottery Table games job and who have demonstrated the
potential to succeed in that job. To enable these employees to
develop the skills necessary to fill an entry level West Virginia
Lottery table games position, a licensee shall provide customary
industry training for entry level West Virginia Lottery table games
jobs. The dates, times, place and manner of providing such
training, the appropriate qualifications and certifications, the
number of existing employees to be trained, the determination of
standards for evaluating successful performance in live auditions
for such positions and the determination of who shall be given West
Virginia Lottery table game jobs shall be within the sole business
discretion of the licensee's management, provided that among
equally qualified applicants, as determined by the licensee, length
of service shall be the determining factor;
(6) Maintain all records required by the commission;
(7) Upon request by the commission, provide the commission
access to all records and the physical premises where the
licensee's table games activities and related activities occur, for
the purpose of monitoring or inspecting the licensee's activities and the table games, gaming equipment and security equipment;
(8) Keep current in all payments and obligations to the
commission; and
(9) Conduct no less than two hundred twenty live racing dates
for each horse or dog race meeting or such other number of live
racing dates as may be approved by the racing commission in
accordance with the provisions of section twelve-b, article twenty-
three, chapter nineteen of this code and otherwise keep in good
standing all licenses and permits granted by the racing commission
pursuant to section six, article twenty-three, chapter nineteen of
this code and any rules promulgated thereunder.
(b) Specific. -- All racetrack table games licensees shall:
(1) Acquire West Virginia Lottery table games and gaming
equipment by purchase, lease or other assignment and provide a
secure location for the placement, operation and play of the table
games and gaming equipment;
(2) Permit no person to tamper with or interfere with the
operation of any West Virginia Lottery table game;
(3) Ensure that West Virginia Lottery table games are within
the sight and control of designated employees of the licensed
racetrack with West Virginia Lottery table games and under
continuous observation by security equipment in conformity with
specifications and requirements of the commission;
(4) Ensure that West Virginia Lottery table games are placed
and remain placed in the specific locations within designated
gaming areas at the licensed racetrack which have been approved by
the commission. West Virginia Lottery table games at a licensed
racetrack shall only be relocated in accordance with the rules of
the commission;
(5) Maintain at all times sufficient cash and gaming tokens,
chips and electronic cards or other electronic media;
(6) Install, post and display conspicuously at locations
within or about the licensed racetrack with West Virginia Lottery
table games, signs, redemption information and other promotional
material as required by the commission; and
(7) Assume liability for stolen money from any table game.
§29-22C-11. Reports by a racetrack table games licensee.
A racetrack table games licensee shall maintain daily records
showing the gross receipts and adjusted gross receipts of the
racetrack from West Virginia Lottery table games and shall timely
file with the commission any additional reports required by rule
promulgated by the commission or required by other provisions of
this code.
§29-22C-12. License to supply a racetrack with gaming equipment
or services
.
(a) License. -- The commission may issue a license to a person to supply a racetrack licensed under this article with gaming
equipment or services when the commission determines that the
person meets the requirements of this section and any applicable
rules of the commission.
(b) License qualifications. -- Each applicant who is an
individual and each individual who controls an applicant, as
provided in subsection (c) section six of this article, shall be of
good moral character, honesty and integrity and shall have the
necessary experience and financial ability to successfully carry
out the functions of a West Virginia Lottery table games supplier.
The commission may adopt rules establishing additional requirements
for a West Virginia Lottery table games supplier. The commission
may accept licensing by another jurisdiction, specifically
determined by the commission to have similar licensing
requirements, as evidence the applicant meets West Virginia Lottery
table games supplier licensing requirements.
(c) Supplier specifications. -- An applicant for a license to
supply gaming equipment or services to a racetrack table games
licensee shall demonstrate that the gaming equipment or services
that the applicant plans to offer to the racetrack table games
licensee conform or will conform to standards established by rules
of the commission and applicable state law. The commission may
accept gaming equipment or services approval by another jurisdiction, specifically determined by the commission to have
similar equipment standards, as evidence the applicant meets the
standards established by the commission and applicable state law.
(d) License application requirements. -- An applicant for a
license to supply a racetrack table games licensee shall:
(1) Submit an application to the commission in the form the
commission requires including adequate information to serve as a
basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check
by the Criminal Identification Bureau of the West Virginia State
Police and the Federal Bureau of Investigation. The fingerprints
shall be furnished by all persons required to be named in the
application and shall be accompanied by a signed authorization for
the release of information by the Criminal Investigation Bureau and
the Federal Bureau of Investigation. The commission may require
any applicant seeking the renewal of a license or permit to furnish
fingerprints for a national criminal records check by the Criminal
Identification Bureau of the West Virginia State Police and the
Federal Bureau of Investigation; and
(3) Pay to the commission a nonrefundable application and
license fee for deposit into the Racetrack Table Games Fund in the
amount of one hundred dollars, which shall be in lieu of the first
year's license fee provided in subsection (g) of this section.
(e) Authorization. -- A license to supply a racetrack table
games licensee authorizes the licensee to sell or lease gaming
equipment or offer services to a racetrack with West Virginia
Lottery table games while the license is active. The commission
may by rule establish the conditions which constitute an emergency
under which the commission may issue provisional licenses pending
completion of final action on an application.
(f) Inventory. -- A licensed table games supplier shall submit
to the commission a list of all gaming equipment and services sold,
delivered to or offered to a racetrack with West Virginia Lottery
table games in this state when required by the commission.
(g) Fees, expiration date and renewal. -- A licensed table
games supplier shall pay to the commission an annual license fee of
one hundred dollars for an initial term beginning prior to the date
of the supplier's first sale to a racetrack table games licensee
and continuing through the end of the twelfth month thereafter
whenever the licensee has paid the renewal fee and has continued to
comply with all applicable statutory and rule requirements. The
commission shall renew a license to supply a racetrack with West
Virginia Lottery table games annually thereafter. A racetrack
table games licensee may continue to use supplies acquired from a
licensed table games supplier while that supplier was licensed,
notwithstanding the expiration of the supplier's license, unless the commission finds a defect in those gaming supplies.
§29-22C-13. License to be employed in a racetrack with West
Virginia Lottery table games
.
(a) Licenses. -- The commission shall issue a license to be
employed in the operation of racetrack table games to a person who
meets the requirements of this section.
(b) License qualifications. -- To qualify for a license to be
employed in the operation of West Virginia Lottery table games, the
applicant shall be an individual of good moral character, honesty
and integrity and have been offered employment by the racetrack
table games licensee contingent upon licensure pursuant to the
provisions of this section. The commission by rule may establish
different specific requirements for each job classification that
may be created by the commission to recognize the extent to which
a particular job classification has the ability to impact the
proper operation of West Virginia Lottery table games.
(c) License application requirements. -- An applicant for a
license to be employed by a racetrack with West Virginia Lottery
table games in a position or to perform duties for which a license
is required under this article or rules of the commission shall:
(1) Submit an application to the commission in the form
required by the commission for each job classification including
adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check
by the Criminal Identification Bureau of the West Virginia State
Police and the Federal Bureau of Investigation. The fingerprints
shall be furnished by all persons required to be named in the
application and shall be accompanied by a signed authorization for
the release of information by the Criminal Investigation Bureau and
the Federal Bureau of Investigation. The commission may require
any applicant seeking the renewal of a license or permit to furnish
fingerprints for a national criminal records check by the Criminal
Identification Bureau of the West Virginia State Police and the
Federal Bureau of Investigation; and
(3) Pay to the commission a nonrefundable application fee for
deposit into the Racetrack Table Games Fund in the amount of one
hundred dollars. The fee may be paid on behalf of an applicant by
the employer.
(d) Authorization. -- A license to be employed by a racetrack
with West Virginia Lottery table games permits the licensee to be
employed in the capacity designated by the commission with respect
to the license while the license is still active.
(e) Renewal fee and form. -- Each licensed employee shall pay
to the commission an annual license fee set by the commission by
rule by the thirtieth day of June of each year. The fee may vary based on the job classification of the applicant, but in no event
shall it exceed one hundred dollars. The fee may be paid on behalf
of the licensed employee by the employer. In addition to a renewal
fee, each licensed employee shall submit a renewal application on
the form required by the commission.
§29-22C-14. License to be a provider of management services.
(a) License. -- The commission may issue a license to a person
providing management services under a management services contract
to a racetrack table games licensee when the commission determines
that the person meets the requirements of this section and any
applicable rules of the commission.
(b) License qualifications. -- Each applicant who is an
individual and each individual who controls an applicant, as
provided in subsection (c), section six of this article, shall be
of good moral character, honesty and integrity and shall have the
necessary experience and financial ability to successfully carry
out the functions of a management services provider. The
commission may adopt rules establishing additional requirements for
an authorized management services provider. The commission may
accept licensing by another jurisdiction, specifically determined
by the commission to have similar licensing requirements, as
evidence the applicant meets authorized management services
provider licensing requirements.
(c) Management service provider specifications. -- An
applicant for a license to provide management services to a
racetrack table games licensee shall demonstrate that the
management services that the applicant plans to offer to the
racetrack table games licensee conform or will conform to standards
established by rules of the commission and applicable state law.
The commission may accept management services provider approval by
another jurisdiction, specifically determined by the commission to
have management services, as evidence the applicant meets the
standards established by the commission and applicable state law.
(d) License application requirements. -- An applicant for a
license to provide management services to a racetrack table games
licensee shall:
(1) Submit an application to the commission in the form
required by the commission including adequate information to serve
as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check
by the Criminal Identification Bureau of the West Virginia State
Police and the Federal Bureau of Investigation. The fingerprints
shall be furnished by all persons required to be named in the
application and shall be accompanied by a signed authorization for
the release of information by the Criminal Investigation Bureau and
the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish
fingerprints for a national criminal records check by the Criminal
Identification Bureau of the West Virginia State Police and the
Federal Bureau of Investigation; and
(3) Pay to the commission a nonrefundable application and
license fee for deposit into the Racetrack Table Games Fund in the
amount of one hundred dollars, which shall be in lieu of the first
year's license fee provided in subsection (f) of this section.
(e) Authorization. -- A license to provide management services
to a racetrack table games licensee authorizes the licensee to
provide management services to a racetrack with West Virginia
Lottery table games while the license is active. The commission
may by rule establish the conditions which constitute an emergency
under which the commission may issue provisional licenses pending
completion of final action on an application.
(f) Fees, expiration date and renewal. -- A licensed provider
of management services shall pay to the commission an annual
license fee of one hundred dollars for an initial term beginning
prior to the date of the provider's first contract with a racetrack
table games licensee and continuing through the end of the twelfth
month thereafter whenever the licensee has paid the renewal fee and
has continued to comply with all applicable statutory and rule
requirements. The commission shall renew a license to provide management services to a racetrack with West Virginia Lottery table
games annually thereafter. A racetrack table games licensee may
continue to use the management services provided by the management
services provider while that provider was licensed, notwithstanding
the expiration of the provider's license, unless the commission
finds the services provided are not conforming to standards
established by rule of the commission and applicable state law.
§29-22C-15. License prohibitions.
(a) The commission may not grant any license pursuant to the
provisions of this article if evidence satisfactory to the
commission exists that the applicant:
(1) Has knowingly made a false statement of a material fact to
the commission;
(2) Has been suspended from operating a gambling game, gaming
device or gaming operation, or had a license revoked by any
governmental authority of a state of the United States having
responsibility for the regulation of gambling or gaming activities;
or
(3) Has been convicted of a crime of moral turpitude, a
gambling-related offense, a theft or fraud offense, or has
otherwise demonstrated, either by a police record or other
satisfactory evidence, a lack of respect for law and order.
(b) In the case of an applicant for a license to supply a racetrack with West Virginia Lottery table games, the commission
may deny a license to any applicant, reprimand any licensee or
suspend or revoke a license:
(1) If the applicant or licensee has not demonstrated to the
satisfaction of the commission financial responsibility sufficient
to adequately meet the requirements of the proposed enterprise;
(2) If the applicant or licensee is not the true owner of the
business or is not the sole owner and has not disclosed the
existence or identity of other persons who have an ownership
interest in the business; or
(3) If the applicant or licensee is a corporation which sells
more than five percent of a licensee's voting stock, or more than
five percent of the voting stock of a corporation which controls
the licensee, or sells a licensee's assets, other than those bought
and sold in the ordinary course of business, or any interest in the
assets, to any person not already determined by the commission to
have met the qualifications of a licensee under this article.
(c) In the case of an applicant for a racetrack table games
license, the commission may deny a license to any applicant,
reprimand any licensee or suspend or revoke a license:
(1) If the applicant or licensee knowingly employs an
individual in a job classification which includes West Virginia
Lottery table games management duties who has been convicted of a crime of moral turpitude, a gambling-related offense, or a theft or
fraud offense under the laws of this state, another state, the
United States or a territory of the United States or knowingly
employs any individual in a job classification which includes West
Virginia Lottery table games management duties who has had a
license relating to the operation of a gaming activity revoked by
this state or any other state;
(2) If the applicant or licensee is not the true owner of the
business or is not the sole owner and has not disclosed the
existence or identity of other persons who have an ownership
interest in the business; or
(3) If the applicant or licensee is a corporation, which sells
more than five percent of a licensee's voting stock, or more than
five percent of the voting stock of a corporation which controls
the licensee or sells a licensee's assets, other than those bought
and sold in the ordinary course of business, or any interest in the
assets, to any person not already determined by the commission to
have met the qualifications of a licensee under this article,
unless the sale has been approved in advance by the commission.
§29-22C-16. License denial, revocation, suspension and reprimand.
(a) Notwithstanding any provision of subsection (b), section
thirteen of this article to the contrary, the commission may deny
a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee, or any person having
control of the applicant or licensee:
(1) Fraudulently or deceptively obtains or attempts to obtain
a license for the applicant or licensee or another person;
(2) Fraudulently or deceptively uses a license;
(3) Is convicted of a felony under the laws of this state,
another state, the United States or a territory of the United
States; or
(4) Is convicted of a misdemeanor under the laws of this
state, another state, the United States or a territory of the
United States for gambling or a gambling related activity.
(b) Instead of or in addition to reprimanding a licensee or
suspending or revoking a license, the commission may impose a civil
penalty under section thirty-one of this article.
§29-22C-17. Hearing procedures.
(a) Right to a hearing. -- Except as otherwise provided by
law, before the commission takes any adverse action involving a
licensee under the provisions of this article, it shall give the
persons against whom the action is contemplated an opportunity for
a hearing before the commission or a hearing examiner designated by
the commission.
(b) Notice of hearing and right to counsel. -- The commission
shall give notice and hold the hearing in accordance with article five, chapter twenty-nine-a of this code. The notice shall be sent
to the person by certified mail addressed to the last known address
of the person at least thirty days before the hearing. The person
may be represented at the hearing by legal counsel.
(c) Failure to comply with subpoena. -- If a person fails to
comply with a subpoena issued for purposes of this section, on
petition of the commission, the circuit court may compel obedience
to the subpoena. If after due notice the person against whom the
action is contemplated fails or refuses to appear or provide the
item or items for which a subpoena duces tecum was issued, the
commission or the commission's designated hearing examiner may hear
and determine the matter.
(d) Appeal. -- Any person aggrieved by a final order or
decision of the commission in a contested case may file a petition
for appeal in the circuit court of Kanawha County within thirty
days after the person received notice of the final order or
decision, as provided in section four, article five, chapter
twenty-nine-a of this code.
§29-22C-18. Notice of license expiration and renewal.
At least two months before any license issued under this
article expires, the commission shall send to the licensee, by mail
addressed to the last known address of the licensee, a renewal
application form and notice that states:
(1) The date on which the current license expires;
(2) The date by which the commission must receive the renewal
application for the renewal to be issued and mailed before the
existing license expires; and
(3) The amount of the renewal fee.
§29-22C-19. Miscellaneous license provisions.
(a) The commission shall include on each license that it
issues:
(1) The type of license;
(2) The identity and address of the licensee;
(3) The effective date of the license;
(4) For employee licenses, the picture of the licensee; and
(5) Any other information the commission considers
appropriate.
(b) Each racetrack table games licensee, licensed supplier of
a racetrack with West Virginia Lottery table games or a licensed
management services provider shall display the license
conspicuously in its place of business or have the license readily
available for inspection at the request of any agent of the
commission or of a state, local or municipal law-enforcement
agency.
(c) Each holder of a license to be employed by a racetrack
with West Virginia Lottery table games shall carry the license on his or her person at all times when present in a racetrack with
West Virginia Lottery table games and, if required by rules adopted
by the commission with respect to the particular capacity in which
the licensee is employed, have some indicia of licensure
prominently displayed on his or her person in accordance with the
rules of the commission.
(d) Each person licensed under this article shall give the
commission written notice of any change of address or any change of
any other information provided in the licensee's application for a
license or for renewal of a license as soon as the effective date
of the change is known to the licensee but not later than thirty
days after the change occurs.
§29-22C-20. Game rules of play; disputes.
(a) Each racetrack licensed as an agent of the commission
authorized to operate West Virginia Lottery table games shall have
written rules of play for each table game it operates that are
approved by the commission before the table game is offered to the
public. Rules of play proposed by a racetrack table games licensee
may be approved, amended or rejected by the commission.
(b) All West Virginia Lottery table games shall be conducted
according to the specific rules of play approved by the commission.
All wagers and pay-offs of winning wagers shall be made according
to those rules of play, which shall establish any limitations necessary to assure the vitality of table games operations.
(c) Each racetrack table game licensee shall make available in
printed form to any patron, upon request of the patron, the
complete text of the rules of play of any West Virginia Lottery
table game in operation at its racetrack facility, pay-offs of
winning wagers and any other advice to the player required by the
commission.
(d) Patrons are considered to have agreed that the
determination of whether the patron is a valid winner is subject to
the game play rules and, in the case of any dispute, will be
determined by the commission. The determination by the commission
shall be final and binding upon all patrons and shall not be
subject to further review or appeal.
§29-22C-21. Betting limits; operations and services.
(a) Notwithstanding anything to the contrary contained
elsewhere in this article, a racetrack licensee may, as agent of
the commission, in the exercise of its business judgment, determine
and establish with the approval of the commission, with respect to
West Virginia lottery table games, the following:
(1) Minimum and maximum wagers;
(2) Advertising and promotional activities and the offering of
any complimentary to a player, subject to the standards provided in
section twenty-three of this article and rules of the commission;
(3) Hours of operation;
(4) The days during which games may be played; and
(5) Currency denominations accepted by any mechanical or
electronic bill acceptors.
(b) Notwithstanding anything to the contrary contained
elsewhere in this chapter, the commission may establish the
following parameters for any commission regulated lottery game of
any kind which is played at a licensed racetrack:
(1) Minimum and maximum payout percentages;
(2) Any probability limits of obtaining the maximum payout for
a particular play; and
(3) Limitations on the types and amounts of financial
transactions, including extension of credit to a patron, which a
racetrack can enter into with its patrons.
§29-22C-22. Posting of betting limits.
A racetrack table game licensee shall conspicuously post a
sign at each West Virginia Lottery table game indicating the
permissible minimum and maximum wagers pertaining at that table.
A racetrack table games licensee may not require any wager to be
greater than the stated minimum or less than the stated maximum.
However, any wager actually made by a patron and not rejected by a
racetrack table games licensee prior to the commencement of play
shall be treated as a valid wager.
§29-22C-23. Complimentary service, gift, cash or other item.
(a) No racetrack table games licensee may offer or provide any
complimentary service, gift, cash or other item of value to any
person unless:
(1) The complimentary consists of room, food, beverage or
entertainment expenses provided directly to the patron and his or
her guests by the racetrack table games licensee or indirectly to
the patron and his or her guests on behalf of the licensee by a
third party;
(2) The complimentary consists of documented transportation
expenses provided directly to the patron and his or her guests on
behalf of a racetrack table games licensee by a third party
provided that the licensee complies with the rules promulgated by
the commission to ensure that a patron's and his or her guests'
documented transportation expenses are paid for or reimbursed only
once; or
(3) The complimentary consists of coins, tokens, cash or other
complimentary items or services provided through any complimentary
distribution program, the terms of which shall be filed with the
commission upon implementation of the program or maintained
pursuant to commission rule. Any change in the terms of a
complimentary program shall be filed with the commission upon
implementation of the change.
(b) Notwithstanding any provision of subsection (a) of this
section to the contrary, a racetrack table games licensee may offer
and provide complimentary cash or non-cash gifts that are not
otherwise included in that subsection to any person: Provided,
That any complimentary cash or non-cash gifts in excess of an
amount per trip to be set by interpretive rule of the commission,
are supported by documentation regarding the reason the gift was
provided to the patron and his or her guests, including where
applicable a patron's player rating. The documentation shall be
maintained by a racetrack table games licensee in accordance with
commission rules. For purposes of this subsection, all gifts
presented to a patron and a patron's guests directly by the
racetrack table games licensee or indirectly on behalf of the
licensee by a third party within any five-day period shall be
considered to have been made during a single trip.
§29-22C-24. Law enforcement.
(a) Generally. -- Notwithstanding any provision of this code
to the contrary, the commission shall, by contract or cooperative
agreement with the West Virginia State Police, arrange for those
law-enforcement services uniquely related to gaming as such occurs
at facilities of the type authorized by this article that are
necessary to enforce the provisions of this article.
(b) Costs. -- The cost of services provided by the West Virginia State Police pursuant to a contract or cooperative
agreement entered into pursuant to the provisions of subsection (a)
of this section, including, but not limited to, necessary training
costs, shall be paid by the commission as an administrative
expense.
(c) Notwithstanding any provision of this code to the
contrary, the West Virginia State Police shall have exclusive
jurisdiction over felony offenses committed on the grounds of any
racetrack licensed under the provisions of this article.
§29-22C-25. Inspection and seizure.
As a condition of licensure, to inspect or investigate for
criminal violations of this article or violations of the rules
promulgated by the commission, the commission's agents and the West
Virginia State Police may each, without notice and without warrant:
(1) Inspect and examine all premises of the racetrack with
West Virginia Lottery table games, gaming devices, the premises
where gaming equipment is manufactured, sold, distributed or
serviced or any premises in which any records of the activities are
prepared or maintained;
(2) Inspect any gaming equipment in, about, upon or around the
premises of a racetrack with West Virginia Lottery table games;
(3) Seize summarily and remove from the premises and impound
any gaming equipment for the purposes of examination, inspection or testing;
(4) Inspect, examine and audit all books, records, and
documents pertaining to a racetrack table games licensee's
operation;
(5) Summarily seize, impound or assume physical control of any
book, record, ledger, table game, gaming equipment or device, cash
box and its contents, counting room or its equipment or West
Virginia Lottery table games operations; and
(6) Inspect the person and the person's personal effects
present on the grounds of a licensed racetrack with West Virginia
Lottery table games, of any holder of a license issued pursuant to
this article, while that person is present on the grounds of a
licensed racetrack with West Virginia Lottery table games.
§29-22C-26. Tax on the privilege of holding a license to operate
West Virginia Lottery table games
.
(a) Imposition and rate of tax. -- For the privilege of
holding a license under this article to operate table games, there
is levied and shall be collected from the racetrack table games
licensee the annual privilege tax imposed by this section. The tax
shall be thirty-six percent of the licensee's adjusted gross
receipts from the operation of West Virginia Lottery table games.
For purposes of calculating the amount of tax due under this
section, the licensee shall use the accrual method of accounting.
(b) Tax returns and payment of tax. --
(1) The annual tax levied by subsection (a) of this section is
due and payable to the commission in weekly installments on or
before the Wednesday of the calendar week following the week in
which the adjusted gross receipts were received and the tax
accrued.
(2) The racetrack table games licensee shall, on or before
Wednesday of each week, make out and submit by electronic
communication to the commission, a return for the preceding week,
in the form prescribed by the commission, showing:
(A) The total gross receipts and adjusted gross receipts from
operation of West Virginia Lottery table games during that week;
(B) The amount of tax for which the racetrack table games
licensee is liable; and
(C) Any additional information necessary in the computation
and collection of the tax required by the commission.
(3) The amount of tax shown to be due on the return shall be
remitted by electronic funds transfer simultaneously with the
filing of the return. All payments received pursuant to this
section shall be deposited in the Racetrack Table Games Fund in
accordance with the provisions of section twenty-seven of this
article.
(4) When adjusted gross receipts for a week is a negative number because the winnings paid to patrons wagering on the
racetrack's West Virginia Lottery table games exceeds the
racetrack's gross receipts from the purchase of table game tokens,
chips or electronic media by patrons, the commission shall allow
the licensee to, pursuant to rules of the commission, carry over
the negative amount of adjusted gross receipts to returns filed for
subsequent weeks. The negative amount of adjusted gross receipts
may not be carried back to an earlier week and the commission is
not required to refund any tax received by the commission, except
when the licensee surrenders its license to act as agent of the
commission in operating West Virginia lottery table games under
this article and the licensee's last return filed under this
section shows negative adjusted gross receipts. In that case, the
commission shall multiply the amount of negative adjusted gross
receipts by the applicable rate of tax and pay the amount to the
licensee, in accordance with rules of the commission.
(c) Tax imposed by this section is in lieu of other taxes. --
(1) With the exception of the ad valorem property tax
collected under chapter eleven-a of this code, the tax imposed by
this section is in lieu of all other state taxes and fees imposed
on the operation of, or the proceeds from operation of, West
Virginia Lottery table games, except as otherwise provided in this
section.
The consumers sales and service tax imposed pursuant to
article fifteen, chapter eleven of this code shall not apply to the
licensee's gross receipts from any wagering on West Virginia
Lottery table games authorized pursuant to this article or to the
licensee's purchase of gaming equipment, supplies or services
directly used in operation of the table games authorized by this
article. These purchases are also exempt from the use tax imposed
by article fifteen-a, chapter eleven of this code.
(2) With the exception of the ad valorem property tax
collected under chapter eleven-a of this code, the tax imposed by
this section is in lieu of all local taxes and fees levied on or
imposed with respect to the privilege of offering West Virginia
Lottery table games to the public, including, but not limited to,
the municipal business and occupation taxes and amusement taxes
authorized by article thirteen, chapter eight of this code and the
municipal sales and service tax and use taxes authorized by article
thirteen-c of said chapter.
(d) Prohibition on credits. -- Notwithstanding any other
provision of this code to the contrary, no credit may be allowed
against the tax imposed by this section or against any other tax
imposed by any other provision of this code for any investment in
gaming equipment, or for any investment in real property, or in
improvements to the real property, that is used in the operation of West Virginia Lottery table games.
§29-22C-27. West Virginia Lottery Racetrack Table Games Fund;
Community-Based Service Fund; State Debt Reduction
Fund; distribution of funds.
(a) (1) There is hereby created and established a special fund
in the State Treasury to be known as the West Virginia Lottery
Racetrack Table Games Fund and all tax collected under this article
shall be deposited with the State Treasurer and placed in the West
Virginia Lottery Racetrack Table Games Fund. The fund shall be an
interest bearing account with all interest or other return earned
on the money of the fund credited to and deposited in the fund.
(2) Notwithstanding any provision of this article to the
contrary, all racetrack table games license fees received by the
commission pursuant to section eight of this article shall be
deposited into the Community-Based Service Fund which is hereby
created in the State Treasury. Moneys of the fund shall be
expended by the Bureau of Senior Services upon appropriation of the
Legislature solely for the purpose of enabling the aged and
disabled citizens of this state to maintain their residency in the
community based setting through the provision of home and community
based services.
(b) From the gross amounts deposited into the Racetrack Table
Games Fund pursuant to subsection (a) of this section, the commission shall:
(1) Retain an amount for the administrative expenses of the
commission as determined by the commission in accordance with
subsection (d) of this section;
(2) Transfer two and one-half percent of adjusted gross
receipts from all thoroughbred racetracks with West Virginia
Lottery table games to the special funds established by each
thoroughbred racetrack table games licensees for the payment of
regular racetrack purses, such amount being divided equally between
such special funds of each thoroughbred racetrack table games
licensee and transfer two and one-half percent of adjusted gross
receipts from all greyhound racetracks with West Virginia Lottery
table games to the special funds established by each greyhound
racetrack table games licensees for the payment of regular
racetrack purses, such amount being divided equally between such
special funds of each greyhound racetrack table games licensee;
(3) Transfer two percent of adjusted gross receipts from all
thoroughbred racetracks with West Virginia Lottery table games to
the West Virginia Thoroughbred Development Fund created under
section thirteen-b, article twenty-three, chapter nineteen of this
code and the thoroughbred development funds for each thoroughbred
racetrack table games licensee shall receive an equal share of such
funds transferred to the West Virginia Thoroughbred Development Fund and transfer two percent of adjusted gross receipts from all
greyhound racetracks with West Virginia Lottery table games to the
West Virginia Greyhound Development Fund created under section ten
of said article and the greyhound development funds for each
greyhound racetrack table games licensee shall receive an equal
share of such funds transferred to the West Virginia Greyhound
Development Fund;
(4) Transfer one percent of the adjusted gross receipts from
each licensed racetrack to the county commissions of the counties
where racetracks with West Virginia Lottery table games are
located. The one percent transferred under this subdivision shall
be divided equally among the counties with a racetrack with West
Virginia Lottery table games;
(5) Transfer two percent of the adjusted gross receipts from
each licensed racetrack to the governing bodies of municipalities
within counties where racetracks with West Virginia Lottery table
games are located, which shall be allocated as follows:
(A) One half of the amounts transferred under this subdivision
shall be allocated to the municipalities within each county having
a racetrack table games licensee, based on relative adjusted gross
receipts from West Virginia Lottery table games from those
racetracks and the total amount allocated to the municipalities
within a county shall be divided pro-rata among the municipalities based on each municipality's population determined at the most
recent United States decennial census of population: Provided,
That: (i) For each allocation, when a municipality is physically
located in two or more counties, only that portion of its
population residing in the county where the authorized table games
are located shall be considered; (ii) no single municipality in a
county where West Virginia Lottery racetrack table games are played
may receive a total share under this part A that is in excess of
seventy-five percent of the total distribution under this part A
for the county in which the municipality is located; and (iii) no
municipality receiving monies under this part A shall receive an
amount which is less than that received by a municipality under
provisions of subdivision four, subsection (c) of this section; and
(B) One half of the amounts transferred under this subdivision
shall be allocated pro-rata to the municipalities within all the
counties having a racetrack table games licensee based on each
municipality's population determined at the most recent United
States decennial census of population: Provided, That: (i) No
municipality which received funds above its pro-rata share pursuant
to subpart (iii) of part A above shall receive an allocation under
this part B; (ii) for each allocation, when a municipality is
physically located in two or more counties, only that portion of
its population residing in the county where the authorized table games are located shall be considered; and (iii) no single
municipality in a county where West Virginia Lottery racetrack
games are played may receive a total share under this part B that
is in excess of twenty-five percent of the total transfers under
this part B;
(6) Transfer one half of one percent of the adjusted gross
receipts to the governing bodies of municipalities in which a
racetrack table games licensee is located, which municipalities
shall each receive an equal share of the total amount allocated
under this subdivision: Provided, That no distribution under this
subdivision shall be made to any municipality which did not have a
licensed racetrack within its municipal boundaries as they existed
on the first day of January, two thousand seven: Provided, however,
That if no racetrack table games licensee is located within a
municipality, no transfer shall be made under this subdivision;
(7) Transfer one percent of adjusted gross receipts to the
Limited Video Lottery Reduction Fund, which is hereby created in
the State Treasury. Moneys of the fund shall be expended solely
for the purpose of accelerating the reduction of limited video
lottery licenses and shall be expended or transferred only upon
appropriation of the Legislature; and
(8) Distribute the remaining amounts, hereinafter referred to
as the net amounts in the Racetrack Table Games Funds, in accordance with the provisions of subsection (c) of this section.
(c) From the net amounts in the Racetrack Table Games Fund,
the commission shall:
(1) Transfer seventy-six percent to the State Debt Reduction
Fund, which is hereby created in the State Treasury. Moneys of the
fund shall be expended solely for the purpose of accelerating the
reduction of existing unfunded liabilities and existing bond
indebtedness of the state and shall be expended or transferred only
upon appropriation of the Legislature;
(2) Transfer four percent, divided pro rata based on relative
adjusted gross receipts from the individual licensed racetracks for
and on behalf of all employees of each licensed racing association,
into a special fund to be established by the Racing Commission to
be used for payment into the pension plan for all employees of each
licensed racing association;
(3) Transfer ten percent, to be divided and paid in equal
shares, to each county commission in the state that is not eligible
to receive a distribution under subdivision (4), subsection (b) of
this section: Provided, That funds transferred to county
commissions under this subdivision shall be used only to pay
regional jail expenses and the costs of infrastructure improvements
and other capital improvements.
(4) Transfer ten percent, to be divided and paid in equal shares, to the governing bodies of each municipality in the state
that is not eligible to receive a distribution under subdivisions
(5) and (6), subsection (b) of this section: Provided, That funds
transferred to municipalities under this subdivision shall be used
only to pay for debt reduction in municipal police and fire pension
funds and the costs of infrastructure improvements and other
capital improvements.
(d) All expenses of the commission incurred in the
administration and enforcement of this article shall be paid from
the Racetrack Table Games Fund, including reimbursement of state
law-enforcement agencies for services performed at the request of
the commission pursuant to this article. At no time may the
commission's expenses associated with a particular racetrack with
authorized table games under this article exceed three percent of
the total annual adjusted gross receipts received from that
licensee's operation of table games under this article, including,
but not limited to, all license fees or other amounts attributable
to the licensees operation of table games under this article.
These expenses shall either be allocated to the racetrack with West
Virginia Lottery table games for which the expense is incurred, if
practicable, or be treated as general expenses related to all
racetrack table games facilities and be allocated pro-rata among
the racetrack table games facilities based on the ratio that annual adjusted gross receipts from operation of table games at each
racetrack with West Virginia Lottery table games bears to total
annual adjusted gross receipts from operation of table games at all
racetracks with West Virginia Lottery table games during the fiscal
year of the state. From this allowance, the commission shall
transfer at least one hundred thousand but not more than five
hundred thousand dollars into the Compulsive Gambling Treatment
Fund created in section nineteen, article twenty-two-a of this
chapter.
§29-22C-28. Prohibition on unauthorized wagering.
(a) A racetrack table games licensee may receive wagers only
from an individual physically present in a designated gaming area
at a licensed racetrack with West Virginia Lottery table games.
(b) All racetracks with West Virginia Lottery table games
shall use a method of wagering whereby the table game player's
money for wagering on table games is, at the request of the player,
converted to tokens, electronic cards or other electronic media or
chips at the table or elsewhere at the licensed racetrack.
(1) The tokens, electronic cards or other electronic media or
chips issued by a licensee racetrack with West Virginia Lottery
table games can only be used for wagering at that racetrack.
(2) Wagering on West Virginia Lottery table games may not be
conducted with money or other negotiable currency or with tokens, electronic cards or other electronic media or chips not issued by
the racetrack where the table games will be played.
(3) At the request of the player, the licensee shall convert
a player's tokens, electronic cards or other electronic media or
chips back to money.
(4) The licensee may not charge a fee for converting a
player's money to an acceptable media for play at a gaming table or
charge a fee for converting the acceptable media for wagering at a
gaming table back to money.
(c) No licensed racetrack employee may place a wager on any
table game at the employer's racetrack.
§29-22C-29. Offenses and penalties.
(a) A racetrack table games licensee is guilty of unlawful
operation when:
(1) The licensee operates a West Virginia Lottery table game
without authority of the commission to do so;
(2) The licensee operates a West Virginia Lottery table game
in any location that is not a designated gaming area approved by
the commission;
(3) The licensee knowingly conducts, carries on, operates or
exposes for play or allows to be conducted, carried on, operated or
exposed for play any table game or other device, equipment or
material that has in any manner been tampered with or placed in a condition or operated in a manner, the result of which is designed
to deceive the public;
(4) The licensee employs an individual in a position or to
perform duties, for which a license is required by this article or
rules of the commission and the employee does not have a license
issued under the provisions of this article or the licensee
continues to employ the individual in a position or to perform
duties, for which a license is required by this article or rules of
the commission, after the employee's license expired, was revoked
by the commission or not renewed by the commission;
(5) The licensee acts or employs another person to act as if
he or she is not an agent or employee of the licensee in order to
encourage participation in a West Virginia Lottery table game at
the licensed racetrack;
(6) The licensee knowingly permits an individual under the age
of twenty-one years of age to enter or remain in a designated
gaming area or to play racetrack video lottery terminals or West
Virginia Lottery table games at a licensed racetrack authorized
under this article to act as the commission's agent in operating
the West Virginia Lottery table games; or
(7) The licensee exchanges tokens, chips, electronic media or
other forms of credit to be used for wagering at a licensed
racetrack authorized under this article to operate West Virginia Lottery table games, for anything of value except in exchange for
money or credits to a player's account.
(b) A person is guilty of a misdemeanor when:
(1) The person knowingly makes a false statement on any
application for a license under this article or on an application
for renewal of a license issued under this article;
(2) The person operates, carries on or exposes for play a West
Virginia Lottery table game prior to obtaining a license or after
the person's license has expired and prior to actual renewal of the
license or before the West Virginia Lottery table game and the
licensee's rules for play of the game are approved or modified and
approved by the commission; or
(3) The person works or is employed in a position requiring a
license under the provisions of this article without having the
license required by this article.
(c) A person is guilty of a felony when:
(1) The person offers, promises or gives anything of value or
benefit to a person who has an ownership or financial interest in,
is employed by or has a service contract with a racetrack with West
Virginia Lottery table games or to that person's spouse or any
dependent child or dependent parent, pursuant to an agreement or
arrangement, in fact or implied from the circumstances, with intent
that the promise or thing of value or benefit will influence the actions of the person in order to affect or attempt to affect the
outcome of a West Virginia Lottery table game, or to influence
official action of the commission. For the purposes of this
subdivision and subdivision (2) of this subsection, the term
"person who is connected with a table games facility" includes, but
is not limited to, a person licensed under this article as well as
an officer or employee of a licensee;
(2) The person solicits or knowingly accepts or receives a
promise of anything of value or benefit while the person is
connected with a racetrack with West Virginia Lottery table games,
pursuant to an understanding or arrangement in fact or implied from
the circumstances, with the intent that the promise or thing of
value or benefit will influence the actions of the person to affect
or attempt to affect the outcome of a West Virginia Lottery table
game or to influence official action of the commission; or
(3) The person uses or possesses on property owned by the
licensed racetrack or on property contiguous to the licensed
racetrack, with the intent to use, an electronic, electrical or
mechanical device that is designed, constructed or programmed to
assist the user or another person:
(A) In projecting the outcome of a West Virginia Lottery table
game;
(B) In keeping track of the cards dealt or in play;
(C) In analyzing the probability of the occurrence of an event
relating to a West Virginia Lottery table game;
(D) In analyzing the strategy for playing or betting to be
used in a West Virginia Lottery table game, except as permitted in
writing by the commission; or
(E) In obtaining an advantage at playing any West Virginia
Lottery table game at a licensed racetrack authorized under this
article to operate West Virginia Lottery table games;
(4) The person manufactures, sells or distributes any card,
chip, die, game or device, by whatever name called, that is
intended by that person to be used to violate any provision of this
article or the table gaming laws of any other state;
(5) The person places a bet after unlawfully acquiring
knowledge of the outcome of the West Virginia Lottery table game
that is the subject of the bet or aids a person in acquiring that
knowledge for the purpose of placing a bet contingent on the
outcome of a West Virginia Lottery table game authorized under this
article;
(6) The person claims, collects, takes or attempts to claim,
collect or take anything of value into or from a racetrack with
West Virginia Lottery table games, with intent to defraud, without
having made a wager contingent on winning an West Virginia Lottery
table game or knowingly claims, collects or takes an amount of money or thing of value of greater value than the amount won;
(7) The person knowingly uses chips, electronic media or
tokens that are counterfeit to place a wager at a racetrack with
West Virginia Lottery table games;
(8) The person knowingly uses any medium to place a wager at
a racetrack licensed under this article other than tokens, chips,
electronic cards or other electronic media or other method of
credit approved by the commission and issued by the racetrack
licensed under this article at which the wager is placed on a West
Virginia Lottery table game;
(9) The person, not a licensed racetrack under this article or
an employee or agent of a racetrack licensed under this article
acting in furtherance of the licensee's interest, has in his or her
possession on grounds owned by the racetrack licensed under this
article or on grounds contiguous to the licensed racetrack any
device, by whatever name called, intended to be used to violate a
provision of this article or a rule of the commission implementing
or explaining a provision of this article; or
(10) The person, not a licensee or employee or agent of a
licensee acting in furtherance of the racetrack table games
licensee's interests, has in his or her possession any key or
device designed for the purpose of opening, entering or affecting
the operation of a West Virginia Lottery table game, drop box or an electronic or mechanical device connected with or used in
connection with a West Virginia Lottery table game in a licensed
racetrack or for removing bills, tokens, chips or other contents
therefrom.
(d) Any person who violates any provision of subsection (a) or
(b) of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars and
committed to a state correctional facility for not more than six
months, except that in the case of a person other than a natural
person, the amount of the fine imposed may not be more than
twenty-five thousand dollars.
(e) Any person who violates any provision of subsection (c) of
this section is guilty of a felony and, upon conviction thereof,
shall be fined not less than five thousand dollars nor more than
ten thousand dollars and committed to a state correctional facility
for a term of imprisonment not less than one year nor more than
five years.
(f) With regard to subdivision (3), subsection (c) of this
section, each racetrack table games licensee shall post notice of
this prohibition and the penalties of this section in a manner
determined by the commission.
§29-22C-30. Forfeiture of property.
(a) Anything of value, including all traceable proceeds, including, but not limited to, real and personal property, moneys,
negotiable instruments, securities and conveyances, is subject to
forfeiture to the State of West Virginia if the item is used for
any of the following:
(1) As a bribe intended to affect the outcome of a West
Virginia Lottery table game in a licensed racetrack; or
(2) In exchange for, or to facilitate, a violation of this
article.
(b) The Legislature finds and declares that the seizure and
sale of items under the provisions of this section is not
contemplated to be a forfeiture as that term is used in section
five, article XII of the Constitution of West Virginia and, to the
extent that a seizure and sale may be found to be such a
forfeiture, the Legislature hereby finds and declares that the
proceeds from a seizure and sale under this article are not part of
net proceeds as it is contemplated by section five, article XII of
the Constitution of West Virginia.
(c) If the forfeited property includes the racetrack real
property and all of its improvements and related personal property,
the commission may take control of and operate the racetrack and
all related functions until the forfeited property is sold or is
returned to the licensee as a result of due process proceedings.
(d) Subsection (a) of this section does not apply if the act or omission that gives rise to the forfeiture is committed or
omitted without the actual or reasonably implied knowledge or
consent of the owner of the property to be forfeited.
§29-22C-31. Civil penalties.
(a) The commission may impose on any person who violates the
provisions of this article a civil penalty not to exceed fifty
thousand dollars for each violation, whether or not the person is
licensed under this article.
(b) The provisions of article five, chapter twenty-nine-a of
this code apply to any civil penalty imposed pursuant to the
provisions of this section.
§29-22C-32. Preemption.
No local law or rule providing any penalty, disability,
restriction, regulation or prohibition for operating a racetrack
with West Virginia Lottery table games or supplying a licensed
racetrack may be enacted and the provisions of this article preempt
all regulations, rules, ordinances and laws of any county or
municipality in conflict with this article.
§29-22C-33. Exemption from federal law.
Pursuant to Section 2, Chapter 1194, 64 Stat. 1134, 15 U. S.
C. §1172, approved the second day of January, one thousand nine
hundred fifty-one, the State of West Virginia, acting by and
through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from Chapter 1194, 64
Stat. 1134, 15 U. S. C. §1171 to §1178.
§29-22C-34. Shipment of gambling devices.
All shipments of gambling devices, including video lottery
machines, to licensed racetracks in this state, the registering,
recording and labeling of which have been completed by the
manufacturer or dealer thereof in accordance with Chapter 1194, 64
Stat. 1134, 15 U. S. C. §1171 to §1178, are legal shipments of
gambling devices into the State of West Virginia.
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-1. Authorization of limited gaming facility; findings;
intent.
(a) Operation of authorized games of chance. --
Notwithstanding any provision of law to the contrary, the operation
of West Virginia lottery games permitted by this article and the
related operation of a gaming facility and ancillary activities is
not unlawful when conducted under the terms specified in this
article and article twenty-two-c of this chapter.
(b) Legislative findings. -- The Legislature finds and
declares that the tourism industry plays a critical role in the
economy of this state and that a substantial state interest exists
in protecting that industry. It further finds and declares that
the authorization of the operation of a gaming facility at no more than one well-established historic resort hotel in this state as
provided in this article will serve to protect and enhance the
tourism industry, and indirectly other segments of the economy of
this state, by providing a resort hotel amenity which is becoming
increasingly important to many actual and potential resort hotel
patrons.
The Legislature finds and declares that except for video
lottery operation operations pursuant to subsection (c), section
three of this article and the operation of the other authorized
games of chance permitted by this article does not constitute the
operation of lotteries or gift enterprises within the purview of
section thirty-six, article VI of the Constitution of West
Virginia. With respect to video lottery games contemplated
hereunder, the Legislature restates and reaffirms the findings and
declarations set forth in section two, article twenty-two-a of this
chapter
(c) Legislative intent. -- It is the intent of the Legislature
in the enactment of this article to promote tourism and year-round
employment in this state. It is expressly not the intent of the
Legislature to promote gaming. As a consequence, it is the intent
of the Legislature to allow limited gaming as authorized by this
article and article twenty-two-c of this chapter with all moneys
gained from the operation of the gaming facility, other than those necessary to reimburse reasonable costs of operation, to inure to
the benefit of the state.
On motions of Senators Prezioso and Jenkins, the following
amendment to Senator Helmick's amendment to the bill (Eng. Com.
Sub. for H. B. No. 2718) was next reported by the Clerk:
On page seventy six, after section thirty-four, by adding a
new section, designated section thirty-five, to read as follows:
§29-22C-35. Constitutional amendment required.
Notwithstanding any provision of this article to the contrary,
this article shall not become effective until an amendment to the
West Virginia Constitution specifically allowing table games
authorized under this article is ratified by a vote of the citizens
of West Virginia.
Following a point of inquiry to the President, with resultant
response thereto,
Thereafter, at the request of Senator Chafin, and by unanimous
consent, the point of inquiry by Senator Bowman and the resultant
response by Senator Tomblin (Mr. President) were ordered printed in
the Appendix to the Journal.
Following extended discussion,
The question being on the adoption of the amendment offered by
Senators Prezioso and Jenkins to Senator Helmick's amendment to the
bill (Eng. Com. Sub. for H. B. No. 2718), and on this question, Senator Prezioso demanded the yeas and nays.
The roll being taken, the yeas were: Boley, Caruth, Guills,
Hall, Jenkins, Oliverio, Plymale, Prezioso, Sprouse, Sypolt and
Unger--11.
The nays were: Bailey, Barnes, Bowman, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Helmick, Hunter, Kessler, Love,
McCabe, McKenzie, Minard, Stollings, Wells, White, Yoder and
Tomblin (Mr. President)--22.
Absent: Sharpe--1.
So, a majority of those present and voting not having voted in
the affirmative, the President declared the amendment offered by
Senators Prezioso and Jenkins to Senator Helmick's amendment to the
bill rejected.
Thereafter, at the request of Senator Plymale, and by
unanimous consent, the remarks by Senator Jenkins regarding the
adoption of the amendment offered by Senators Prezioso and Jenkins
to Senator Helmick's amendment to the bill (Eng. Com. Sub. for H.
B. No. 2718) were ordered printed in the Appendix to the Journal.
On motion of Senator Jenkins, the following amendment to
Senator Helmick's amendment to the bill was next reported by the
Clerk:
On page twelve, section two, subsection (b), by striking out
all of subdivision (4).
Following discussion,
The question being on the adoption of the amendment offered by
Senator Jenkins to Senator Helmick's amendment to the bill (Eng.
Com. Sub. for H. B. No. 2718), the same was put and did not
prevail.
On motion of Senator Kessler, the following amendments to
Senator Helmick's amendment to the bill were next reported by the
Clerk and considered simultaneously:
On page fifty-eight, section twenty-six, subsection (a), by
striking out the word "thirty-six" and inserting in thereof the
word "thirty-five";
On pages sixty-two and sixty-three, section twenty-seven,
subsection (b), by striking out subdivision (3) in its entirety and
inserting in lieu thereof a new subdivision (3), to read as
follows:
(3) Transfer two percent of the adjusted gross receipts from
all licensed racetracks to the Thoroughbred Development Fund
created under section thirteen-b, article twenty-three, chapter
nineteen of this code and the Greyhound Breeding Development Fund
created under section ten, article twenty-three, chapter nineteen
of this code. The total amount transferred under this subdivision
shall be divided pro rata among the development funds for each
racetrack table games licensee based on relative adjusted receipts from each racetrack. No portion of the amounts transferred to
these funds may be used for the benefit of any person or activity
other than at or associated with a racetrack table games licensee.;
On page sixty-three, section twenty-seven, subsection (b),
subdivision (4), by striking out the word "equally" and inserting
in lieu thereof the words "pro rata";
On page sixty-three, section twenty-seven, subsection (b),
subdivision (4), after the words "with a racetrack with West
Virginia Lottery table games" by inserting the words "based on
relative adjusted gross receipts from each county's racetrack:
Provided, That the county board of education of a growth county, as
that term is defined in section three, article twenty, chapter
seven of this code, which has enacted the Local Powers Act, and in
which county a racetrack is located that has participated in the
West Virginia Thoroughbred Development Fund since on or before the
first day of January, one thousand nine hundred ninety-one, shall
receive one percent of adjusted gross receipts as provided in this
subdivision for the purpose of capital improvements";
On page sixty-four, section twenty-seven, subsection (b),
subdivision (5), paragraph (B), after the words "transfers under
this part B" by changing the semicolon to a colon and inserting the
words "Provided, however, That the county board of education of a
growth county, as that term is defined in section three, article twenty, chapter seven of this code, which has enacted the Local
Powers Act, and in which county a racetrack is located that has
participated in the West Virginia Thoroughbred Development Fund
since on or before the first day of January, one thousand nine
hundred ninety-one, shall receive the two percent of adjusted gross
receipts as provided in this subdivision for the purpose of capital
improvements.";
On page sixty-five, section twenty-seven, subsection (b),
subdivision (6), after the words "made under this subdivision;" by
inserting the word "and";
On page sixty-five, section twenty-seven, subsection (b), by
striking out subdivision (7) in its entirety;
And,
By renumbering the remaining subdivision.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
The Senate again proceeded to the ninth order of business and
resumed consideration of
Eng. Com. Sub. for House Bill No. 2718, Authorizing West
Virginia Lottery Table Games at State Racetracks.
Senator Oliverio then requested a division of the question
contained in the foregoing amendments offered by Senator Kessler.
The President then stated that, without objection, the
question would be divided; and the body would first vote on Senator
Kessler's amendments to the bill on pages sixty-two and sixty-
three, section twenty-seven, subsection (b), by striking out
subdivision (3) in its entirety and inserting in lieu thereof a new
subdivision (3), to read as follows:
(3) Transfer two percent of the adjusted gross receipts from
all licensed racetracks to the Thoroughbred Development Fund
created under section thirteen-b, article twenty-three, chapter
nineteen of this code and the Greyhound Breeding Development Fund
created under section ten, article twenty-three, chapter nineteen
of this code. The total amount transferred under this subdivision
shall be divided pro rata among the development funds for each
racetrack table games licensee based on relative adjusted receipts
from each racetrack. No portion of the amounts transferred to
these funds may be used for the benefit of any person or activity
other than at or associated with a racetrack table games licensee.;
On page sixty-three, section twenty-seven, subsection (b),
subdivision (4), by striking out the word "equally" and inserting
in lieu thereof the words "pro rata";
On page sixty-three, section twenty-seven, subsection (b),
subdivision (4), after the words "with a racetrack with West
Virginia Lottery table games" by inserting the words "based on relative adjusted gross receipts from each county's racetrack:
Provided, That the county board of education of a growth county, as
that term is defined in section three, article twenty, chapter
seven of this code, which has enacted the Local Powers Act, and in
which county a racetrack is located that has participated in the
West Virginia Thoroughbred Development Fund since on or before the
first day of January, one thousand nine hundred ninety-one, shall
receive one percent of adjusted gross receipts as provided in this
subdivision for the purpose of capital improvements";
And,
On page sixty-four, section twenty-seven, subsection (b),
subdivision (5), paragraph (B), after the words "transfers under
this part B" by changing the semicolon to a colon and inserting the
words "Provided, however, That the county board of education of a
growth county, as that term is defined in section three, article
twenty, chapter seven of this code, which has enacted the Local
Powers Act, and in which county a racetrack is located that has
participated in the West Virginia Thoroughbred Development Fund
since on or before the first day of January, one thousand nine
hundred ninety-one, shall receive the two percent of adjusted gross
receipts as provided in this subdivision for the purpose of capital
improvements."
Following discussion and points of inquiry to the President, with resultant response thereto,
The question being on the adoption of Senator Kessler's
amendments to Senator Helmick's amendment to the bill, and on this
question, Senator Sprouse demanded the yeas and nays.
To which demand, Senator Bailey objected.
Thereafter, Senator Sprouse's demand for a roll call was
sustained.
The roll being taken, the yeas were: Bailey, Barnes, Bowman,
Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--28.
The nays were: Boley, Caruth, Guills, Hall and Sprouse--5.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared Senator Kessler's amendments to
Senator Helmick's amendment to the bill (Eng. Com. Sub. for H. B.
No. 2718) adopted.
The question now being on the adoption of Senator Kessler's
amendments to Senator Helmick's amendment to the bill on page
fifty-eight, section twenty-six, subsection (a), by striking out
the word "thirty-six" and inserting in thereof the word "thirty-
five";
On page sixty-five, section twenty-seven, subsection (b),
subdivision (6), after the words "made under this subdivision;" by
inserting the word "and";
On page sixty-five, section twenty-seven, subsection (b), by
striking out subdivision (7) in its entirety;
And,
By renumbering the remaining subdivision.
Following discussion and a point of inquiry to the President,
with resultant response thereto,
The question being on the adoption of Senator Kessler's
amendments to Senator Helmick's amendment to the bill, and on this
question, Senator Sprouse demanded the yeas and nays.
To which demand, Senator Bailey objected.
Thereafter, Senator Sprouse's demand for a roll call was
sustained.
The roll being taken, the yeas were: Bailey, Barnes, Bowman,
Chafin, Edgell, Facemyer, Green, Kessler, Love, McCabe, McKenzie,
Minard, Stollings, Unger, Wells, White and Tomblin (Mr.
President)--17.
The nays were: Boley, Caruth, Deem, Fanning, Foster, Guills,
Hall, Helmick, Hunter, Jenkins, Oliverio, Plymale, Prezioso,
Sprouse, Sypolt and Yoder--16.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared Senator Kessler's amendments to
Senator Helmick's amendment to the bill adopted.
On motion of Senator Chafin, the Senate recessed for fifteen
minutes.
Upon expiration of the recess, the Senate reconvened and
resumed consideration of
Eng. Com. Sub. for House Bill No. 2718, Authorizing West
Virginia Lottery Table Games at State Racetracks.
On motions of Senators Caruth and Guills, the following
amendments to Senator Helmick's amendment to the bill were next
reported by the Clerk and considered simultaneously:
On pages sixty-five and sixty-six, section twenty-seven,
subsection (c), by striking out subdivision (2) in its entirety and
inserting in lieu thereof the following:
"(2) Transfer two percent to the Mercer County Economic
Development Authority for the specific purpose of construction,
development and operation of a Mercer County Equestrian Park;
(3) Transfer two percent to Regional Jail and Correctional
Facility Authority, as provided in article twenty, chapter thirty-
one of this code, to offset the cost of maintaining inmates and
reduce the daily amount charged to counties for housing inmates;"
And,
By renumbering the remaining subdivisions.
Following extended discussion,
The question being on the adoption of the amendments offered
by Senators Caruth and Guills to Senator Helmick's amendment to the
bill, and on this question, Senator Caruth demanded the yeas and
nays.
The roll being taken, the yeas were: Barnes, Boley, Caruth,
Chafin, Deem, Fanning, Guills, Jenkins, Oliverio, Prezioso and
Sypolt--11.
The nays were: Bailey, Bowman, Edgell, Facemyer, Foster,
Green, Hall, Helmick, Hunter, Kessler, Love, McCabe, McKenzie,
Minard, Plymale, Sprouse, Stollings, Unger, Wells, White, Yoder and
Tomblin (Mr. President)--22.
Absent: Sharpe--1.
So, a majority of those present and voting not having voted in
the affirmative, the President declared the amendments offered by
Senators Caruth and Guills to Senator Helmick's amendment to the
bill (Eng. Com. Sub. for H. B. No. 2718) rejected.
On motion of Senator Caruth, the following amendments to
Senator Helmick's amendment to the bill were next reported by the
Clerk and considered simultaneously:
On page forty-seven, section fifteen, subsection (a),
subdivision (2), after the word "activities;" by striking out the word "or";
On page forty-seven, section fifteen, subsection (a),
subdivision (3), after the word "order" by changing the period to
a semicolon and inserting the word "or";
On page forty-seven, section fifteen, subsection (a), after
subdivision (3), by inserting a new subdivision, designated
subdivision (4), to read as follows:
(4) Is an elected official of the state or a public official
or public employee who may use his or her office or the prestige of
his or her office for his or her own private gain or that of
another person.
The question being on the adoption of Senator Caruth's
amendments to Senator Helmick's amendment to the bill, and on this
question, Senator Caruth demanded the yeas and nays.
The roll being taken, the yeas were: Barnes, Boley, Caruth,
Deem, Guills, Hall, Jenkins, Oliverio, Prezioso, Sprouse, Sypolt
and Yoder--12.
The nays were: Bailey, Bowman, Chafin, Edgell, Facemyer,
Fanning, Foster, Green, Helmick, Hunter, Kessler, Love, McCabe,
McKenzie, Minard, Plymale, Stollings, Unger, Wells, White and
Tomblin (Mr. President)--21.
Absent: Sharpe--1.
So, a majority of those present and voting not having voted in the affirmative, the President declared Senator Caruth's amendments
to Senator Helmick's amendment to the bill (Eng. Com. Sub. for H.
B. No. 2718) rejected.
On motion of Senator Oliverio, the following amendment to
Senator Helmick's amendment to the bill was next reported by the
Clerk:
On page sixty-five, section twenty-seven, subsection (b),
subdivision (7), after the word "Legislature" by inserting the
following proviso: "Provided, That at the time limited video
licenses are rebid in the year two thousand eleven, the total
number of limited video lottery machines permitted in the state
shall not exceed eight thousand, the total number of machines in
each retail location shall not exceed seven and the total number of
machines in each fraternal location shall not exceed twelve".
Senator Kessler arose to a point of order that Senator
Oliverio's amendment to Senator Helmick's amendment was not germane
to the bill.
Which point of order, the President ruled well taken.
On motion of Senator Caruth, the following amendments to
Senator Helmick's amendment to the bill were next reported by the
Clerk and considered simultaneously:
On pages sixty-five and sixty-six, section twenty-seven,
subsection (c), by striking out subdivision (2) in its entirety;
On page sixty-six, section twenty-seven, subsection (c),
subdivision (3), by striking out the word "ten" and inserting in
lieu thereof the word "thirteen";
And,
On page sixty-six, section twenty-seven, subsection (c),
subdivision (4), by striking out the word "ten" and inserting in
lieu thereof the word "thirteen".
The question being on the adoption of Senator Caruth's
amendments to Senator Helmick's amendment to the bill, and on this
question, Senator Caruth demanded the yeas and nays.
The roll being taken, the yeas were: Boley, Caruth, Deem,
Fanning, Guills, Hall, Jenkins, Oliverio, Prezioso, Sypolt and
Unger--11.
The nays were: Bailey, Barnes, Bowman, Chafin, Edgell,
Facemyer, Foster, Green, Helmick, Hunter, Kessler, Love, McCabe,
McKenzie, Minard, Plymale, Sprouse, Stollings, Wells, White, Yoder
and Tomblin (Mr. President)--22.
Absent: Sharpe--1.
So, a majority of those present and voting not having voted in
the affirmative, the President declared Senator Caruth's amendments
to Senator Helmick's amendment to the bill (Eng. Com. Sub. for H.
B. No. 2718) rejected.
On motion of Senator Oliverio, the following amendment to Senator Helmick's amendment to the bill was next reported by the
Clerk:
On page ten, after section ten-c, by inserting the following:
ARTICLE 22B. LIMITED VIDEO LOTTERY.
Part 11. Allocation and Distribution of Video Lottery Terminals.
§29-22B-1101. Limitation on number and location of video lottery
terminals.
(a) The Lottery Commission may not authorize the placement of
more than nine thousand video lottery terminals in restricted
access adult-only facilities in this state: Provided, That upon the
expiration of all permits pursuant to section one thousand one
hundred two-b of this article, and thereafter, the Lottery
Commission may not authorize the placement of more than eight
thousand video lottery terminals in restricted access adult-only
facilities in this state.
(b) No person may directly or indirectly operate more than
seven and one-half percent of the number of video lottery terminals
authorized in this section, which shall be located only in
restricted access adult-only facilities.
(c) No licensed limited video lottery retailer may be
authorized to have on the premises for which the license was issued
more than five video lottery terminals except that a fraternal
society or veteran's organization that is: (A) A fraternal beneficiary society that is exempt from federal income tax under
Section 501(c)(8) of the Internal Revenue Code of 1986, as amended;
(B) a domestic fraternal society that is exempt from federal income
tax under Section 501(c)(10); or (C) a veterans' organization that
is exempt from federal income tax under Section 501(c)(19) of the
Internal Revenue Code may be authorized to have on the premises for
which the license was issued not more than ten video lottery
terminals: Provided, That upon the expiration of all permits
pursuant to section one thousand one hundred two-b of this article,
and thereafter, no licensed limited video lottery retailer may be
authorized to have on the premises for which the license was issued
more than seven video lottery terminals and no fraternal society or
veteran's organization, as described herein, may be authorized to
have on the premises for which the license was issued no more than
twelve video lottery terminals.
At the request of Senator Oliverio, unanimous consent being
granted, Senator Oliverio addressed the Senate regarding his
earlier amendment to Senator Helmick's amendment to the bill which
was ruled not germane.
Thereafter, Senator Kessler arose to a point of order that
Senator Oliverio's pending amendment to Senator Helmick's amendment
was not germane to the bill.
Which point of order, the President ruled well taken.
Senator Oliverio then appealed the ruling of the Chair.
Following a point of inquiry to the President, with resultant
response thereto,
The question being "Shall the Chair be sustained?", and on
this question, Senator Plymale demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Bowman, Chafin,
Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale,
Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr.
President)--24.
The nays were: Barnes, Boley, Caruth, Guills, Hunter,
Oliverio, Sprouse, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared the Chair sustained.
The question now being on the adoption of Senator Helmick's
amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2718), as amended, was
then ordered to third reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular
order, were each read a first time and ordered to second reading:
Eng. House Bill No. 2349, Continuing the Board of Registration for Sanitarians.
Eng. House Bill No. 2568, Extending the sunset provision
regarding racial profiling analysis.
Eng. House Bill No. 2574, Continuing the Board of Social Work
Examiners.
Eng. House Bill No. 2586, Continuing the Board of Veterinary
Medicine.
Eng. House Bill No. 2587, Continuing the Board of Optometry.
Eng. House Bill No. 2712, Regarding whether a bank's
application to establish a branch presents a significant
supervisory concern or significant legal or policy issue.
Eng. Com. Sub. for House Bill No. 2741, Relating to worthless
checks.
Eng. Com. Sub. for House Bill No. 2776, Relating to the West
Virginia Residential Mortgage Lender, Broker and Servicer Act.
Eng. Com. Sub. for House Bill No. 2973, Declaring certain
claims against the state to be moral obligations of the state and
directing the Auditor to issue warrants for the payment thereof.
Eng. House Bill No. 2988, Relating to the West Virginia Tax
Procedure and Administration Act.
Eng. House Bill No. 2990, Making technical corrections to
assure the proper collection of offset fees.
Eng. House Bill No. 3073, Relating to prohibiting financial institutions from establishing or maintaining a branch in West
Virginia on, or within one and one-half miles of, the premises or
property of an affiliate, under certain circumstances.
And,
Eng. House Bill No. 3117, Clarifying that contractors must
have a state contractors license in order to submit a bid with the
State of West Virginia.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate recessed until 6 p.m.
today.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2027, Allowing awards under
the crime victims compensation program to be made to victims of
identity theft.
Eng. Com. Sub. for House Bill No. 2870, Authorizing the court
to order payment into the Domestic Violence Legal Services Fund
under certain circumstances.
And,
Eng. Com. Sub. for House Bill No. 3106, Increasing the number
of family court judges and realigning certain districts to address
excessive workloads.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, Engrossed Committee Substitute for House Bill Nos. 2027
and 3106 contained in the preceding report from the Committee on
the Judiciary were each taken up for immediate consideration, read
a first time, ordered to second reading and, under the original
double committee reference, were then referred to the Committee on
Finance.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of Engrossed Committee Substitute for
House Bill No. 2870 contained in the foregoing report from the
Committee on the Judiciary.
At the request of Senator Kessler, and by unanimous consent, the bill (Eng. Com. Sub. for H. B. No. 2870) was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2253, Providing certain
correctional officers be transferred into the civil service system
as covered employees.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2253) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time, ordered to
second reading and, under the original double committee reference,
was then referred to the Committee on Finance, with amendments from
the Committee on the Judiciary pending.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2380, Exempting the purchase
of certain drugs, durable medical goods, etc., from the consumers
sales and service tax.
Eng. Com. Sub. for House Bill No. 2422, Providing cost-saving
measures in connection with providing medical care in regional
jails.
Eng. House Bill No. 2578, Continuing current mental health
parity laws for group insurance plans.
And,
Eng. Com. Sub. for House Bill No. 2583, Relating to the
expansion of newborn testing.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2590, Authorizing the Department of Revenue to promulgate legislative rules.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2590) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2748, Relating to the
receipt and transfer of scrap metal.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2748) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2804, Eliminating time
schedules for utility relocation on highway projects.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2808, Increasing the fee for
issuance of one-trip permits.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2877, Funding entities
ensuring public safety on state highways.
Eng. House Bill No. 2989, Relating to certain tax shelters
used to avoid paying state income taxes.
Eng. House Bill No. 2991, Authorizing the Tax Commissioner to
conduct criminal record checks of prospective employees of the Tax
Division.
And,
Eng. House Bill No. 3072, Relating to defining "charitable
exemptions" for purposes of the municipal business and occupation
tax.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3036, Reforming, altering
and modifying the county commission of Hampshire County.
And,
Eng. Com. Sub. for House Bill No. 3269, Reforming, altering
and modifying the commission of Berkeley County.
And reports the same back without recommendation as to
passage; but with the further recommendation that they each first
be referred to the Committee on Government Organization; and then,
under the original double committee references, be referred to the
Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. Nos. 3036 and 3269)
contained in the preceding report from the Committee on the
Judiciary were each taken up for immediate consideration, read a
first time and ordered to second reading.
On motion of Senator Kessler, the bills (Eng. Com. Sub. for H.
B. Nos. 3036 and 3269) were referred to the Committee on Government
Organization; and then, under the original double committee references, to the Committee on Finance.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft
of oil, natural gas, water, telecommunications, electric and solid
waste service.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
On motion of Senator Chafin, a leave of absence for the day
was granted Senator Sharpe.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Tuesday, March 6, 2007, at 11 a.m.
____________