ENROLLED
H. B. 2279
(By Delegates J. Martin, Love, Michael, Fragale, Osborne,
Nesbitt and Harrison)
[Passed March 10, 1995; in effect July 1, 1995.]
AN ACT to repeal sections three, four and sixteen, article
nineteen, chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
amend and reenact sections two, ten, eleven and fifteen,
article nineteen, chapter twenty-nine of said code, all
relating to terminating the commission on charitable
organizations.
Be it enacted by the Legislature of West Virginia:
That sections three, four and sixteen, article nineteen,
chapter twenty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be repealed; and that
sections two, ten, eleven and fifteen, article nineteen, chapter
twenty-nine of said code be amended and reenacted, all to read as
follows:
§29-19-2. Definitions.
As used in this article:
(1) "Charitable organization" means a person who is or holds
itself out to be a benevolent, educational, philanthropic, humane,
patriotic, religious or eleemosynary organization, or any person
who solicits or obtains contributions solicited from the public for
charitable purposes, or any person who in any manner employs any
appeal for contributions which may be reasonably interpreted to
suggest that any part of such contributions will be used for
charitable purposes. A chapter, branch, area, office or similar
affiliate or any person soliciting contributions within the state
for a charitable organization which has its principal place of
business outside the state is a charitable organization for the
purposes of this article.
(2) "Contribution" means the promise or grant of any money or
property of any kind or value.
(3) "Solicit" and "solicitation" means the request or appeal,
directly or indirectly, for any contribution on the plea or
representation that such contribution will be used for a charitable
purpose, including, without limitation, the following methods of
requesting such contribution:
(a) Any oral or written request;
(b) Any announcement to the press, over the radio or television, or by telephone or telegraph, concerning an appeal or
campaign to which the public is requested to make a contribution
for any charitable purpose connected therewith;
(c) The distribution, circulation, posting or publishing of
any handbill, written advertisement or other publication which
directly or by implication seeks to obtain public support; or
(d) The sale of, offer or attempt to sell, any advertisement,
advertising space, subscription, ticket or any service or tangible
item in connection with which any appeal is made for any charitable
purpose or where the name of any charitable or civic organization
is used or referred to in any such appeal as an inducement or
reason for making any such sale, or when or where in connection
with any such sale, any statement is made that the whole or any
part of the proceeds from any such sale will be donated to any
charitable purpose.
"Solicitation", as defined herein, shall be deemed to occur
when the request is made, at the place the request is received,
whether or not the person making the same actually receives any
contribution.
(4) "Federated fund-raising organization" means a federation
of independent charitable organizations which have voluntarily joined together, including, but not limited to, a united fund or
community chest, for purposes of raising and distributing money for
and among themselves and where membership does not confer operating
authority and control of the individual agencies upon the federated
group organization.
(5) "Parent organization" is that part of a charitable
organization which coordinates, supervises or exercises control
over policy, fund raising and expenditures, or assists, receives
funds from or advises one or more chapters, branches or affiliates
in the state.
(6) "Person" means any individual, organization, trust,
foundation, group, association, partnership, corporation, society
or any combination of them.
(7) "Professional fund-raising counsel" means any person who
for a flat fixed fee under a written agreement plans, conducts,
manages, carries on, advises or acts as a consultant, whether
directly or indirectly, in connection with soliciting contributions
for, or on behalf of any charitable organization but who actually
solicits no contributions as a part of such services. A bona fide
salaried officer or employee of a charitable organization
maintaining a permanent establishment within the state shall not be deemed to be a professional fund-raising counsel.
(8) "Professional solicitor" means any person who, for a
financial or other consideration, solicits contributions for, or on
behalf of a charitable organization, whether such solicitation is
performed personally or through said person's agents, servants or
employees specially employed by, or for a charitable organization,
who are engaged in the solicitation of contributions under the
direction of such person, or a person who plans, conducts, manages,
carries on, advises or acts as a consultant to a charitable
organization in connection with the solicitation of contributions
but does not qualify as "professional fund-raising counsel" within
the meaning of this article. A bona fide salaried officer or
employee of a charitable organization maintaining a permanent
establishment within the state is not a professional solicitor.
No attorney, investment counselor or banker, who advises any
person to make a contribution to a charitable organization, shall
be considered, as the result of such advice, a professional fund-
raising counsel or a professional solicitor.
§29-19-10. Information filed to become public records.
Registration statements and applications, reports,
professional fund-raising counsel contracts or professional solicitor contracts, and all other documents and information
required to be filed under this article or by the secretary of
state shall become public records in the office of the secretary
of state, and shall be open to the general public for inspection
at such time and under such conditions as the secretary of state
may prescribe.
§29-19-11. Records to be kept by charitable organizations,
professional fund-raising counsel and professional solicitors.
Every charitable organization, professional fund raising
counsel and professional solicitor subject to the provisions of
this article shall, in accordance with the rules prescribed by the
secretary of state, keep true fiscal records as to its activities
in this state as may be covered by this article in such form as
will enable it accurately to provide the information required by
this article. Upon demand, such records shall be made available to
the secretary of state or the attorney general for inspection.
Such records shall be retained for a period of at least three years
after the end of the period of registration to which they relate.
§29-19-15. Enforcement and penalties.
(a) The secretary of state, upon his or her own motion, or
upon complaint of any person, may, if he or she finds reasonable
ground to suspect a violation, investigate any charitable organization, professional fund-raising counsel or professional
solicitor to determine whether such charitable organization,
professional fund-raising counsel or professional solicitor has
violated the provisions of this article or has filed any
application or other information required under this article which
contains false or misleading statements.
(b) In addition to the foregoing, any person who willfully and
knowingly violates any provision of this article, or who shall
willfully and knowingly give false or incorrect information to the
secretary of state in filing statements or reports required by this
article, whether such report or statement is verified or not, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall be
fined upon first conviction thereof in an amount not less than one
hundred dollars nor more than five hundred dollars, or be
imprisoned in the county jail for not more than six months, or be
both fined and imprisoned, and for the second and any subsequent
offense to pay a fine of not less than five hundred dollars nor
more than one thousand dollars, or be imprisoned for not more than
one year, or be both fined and imprisoned.
(c) Whenever the secretary of state, attorney general or any
prosecuting attorney has reason to believe that any charitable organization, professional fund-raising counsel or professional
solicitor is operating in violation of the provisions of this
article, the secretary of state, attorney general or prosecuting
attorney may bring an action in the name of the state against such
charitable organization and its officers, such professional fund-
raising counsel or professional solicitor or any other person who
has violated this article in the circuit court of the county
wherein the cause of action arises to enjoin such charitable
organization or professional fund-raising counsel or professional
solicitor or other person from continuing such violation,
solicitation or collection, or from engaging therein or from doing
any acts in furtherance thereof and for such other relief as the
court deems appropriate.
(d) In addition to the foregoing, any charitable organization,
professional fund-raising counsel or professional solicitor who
willfully and knowingly violates any provisions of this article by
employing any device, scheme, artifice, false representation or
promise with intent to defraud or obtain money or other property
shall be guilty of a misdemeanor, and, upon conviction thereof, for
a first offense, shall be fined not less than one hundred dollars
nor more than five hundred dollars, or be confined in the county jail not more than six months, or be both fined and imprisoned; and
for a second and any subsequent offense, shall be fined not less
than five hundred dollars nor more than one thousand dollars, or
confined in the county jail not more than one year, or be both
fined and imprisoned.
At any proceeding under this section, the court shall also
determine whether it is possible to return to the contributors the
contributions which were thereby obtained.
If the court finds that the said contributions are readily
returnable to the original contributors, it may order the money to
be placed in the custody and control of a general receiver,
appointed pursuant to the provisions of article six, chapter fifty-
one of this code, who shall be responsible for its proper
disbursement to such contributors.
If the court finds that: (1) It is impossible to obtain the
names of over one half the persons who were solicited and in
violation of this article, or (2) if the majority of individual
contributions was of an amount less than five dollars, or (3) if
the cost to the state of returning these contributions is equal to
or more than the total sum to be refunded, the court shall order
the money to be placed in the custody and control of a general receiver appointed pursuant to the provisions of article six,
chapter fifty-one of this code. The general receiver shall
maintain this money pursuant to the provisions of article eight,
chapter thirty-six of this code.