CHAPTER 11B. GAMING CONTROL COMMISSION 2
ARTICLE 1. GENERAL PROVISIONS 2
§11B-1-1. Short title 2
§11B-1-2. Declaration of policy; legislative findings; legislative intent; scope of provisions 2
§11B-1-3. Definitions 3
ARTICLE 2. WEST VIRGINIA GAMING CONTROL COMMISSION; ESTABLISHMENT AND
ORGANIZATION 13
§11B-2-1. Creation of gaming control commission; number of members 13
§11B-2-2. Appointment of members of gaming control commission; qualifications and eligibility 15
§11B-2-3. Terms of commission members; conditions of membership 17
§11B-2-4. Oath and bond 18
§11B-2-5. Commission chairman 18
§11B-2-6. Compensation of members; reimbursement for expenses 19
ARTICLE 3. RESTRICTIONS ON GAMING CONTROL COMMISSION MEMBERS,
COMMISSION EMPLOYEES AND GAMING CONTROL SECTION EMPLOYEES 20
§11B-3-1. Restrictions on pre-employment by commission members, commission employees and
section employees 21
§11B-3-2. Employment restrictions on commissioners, commission employees and section employees 22
§11B-3-3. Application of governmental ethics act; commission's code of ethics 23
§11B-3-4. Post-employment restrictions 27
§11B-3-5. Applicant, licensee and licenseholder liability for violations 28
§11B-3-6. Enforcement 29
ARTICLE 4. POWERS AND DUTIES OF GAMING CONTROL COMMISSION 29
§11B-4-1. General duties of gaming control commission 29
§11B-4-2. General powers of gaming control commission 32
§11B-4-3. Appointment of executive director; duties; compensation 33
§11B-4-4. Employment of commission staff; conditions of employment; contracts for services 35
§11B-4-5. Investigative powers 36
§11B-4-6. Testimonial immunity 37
§11B-4-7. Collection of fees and penalties 38
§11B-4-8. Required rulemaking 39
ARTICLE 5. LICENSURE GENERALLY 44
§11B-5-1. Licenses required; nontransferability; privilege 44
§11B-5-2. General provisions 45
§11B-5-3. Disqualification criteria 51
§11B-5-4. Licenses; display of license 55
§11B-5-5. License revocation and reprimand 56
ARTICLE 6. GAMING LICENSES 57
§11B-6-1. Classification of vessel gaming locations for purposes of licensure 57
§11B-6-2. Classification of casino locations for purposes of licensure 58
§11B-6-3. Local approval of gaming location required 60
§11B-6-4. Licenses to conduct gaming 60
§11B-6-5. Applicant eligibility for gaming license to conduct gaming on gaming vessel 63
§11B-6-6. Applicant eligibility for gaming license to conduct casino gaming 64
§11B-6-7. Requirements for applicants for license to conduct gaming 65
§11B-6-8. Additional requirements for corporate applicants for license to conduct gaming 69
§11B-6-9. Exemption for publicly traded corporations; penalties for noncompliance 77
§11B-6-10. Additional requirements for non-corporate applicants for license to conduct gaming 85
§11B-6-11. Requirements regarding labor policies; recognition of labor organizations 85
§11B-6-12. Selection criteria 86
§11B-6-13. Application procedure for gaming vessel or casino license 89
§11B-6-14. Preliminary selection of licensee; investigation of preliminary licensee; order approving
or denying license 90
§11B-6-15. Issuance of license; duration of initial license; bond 92
§11B-6-16. Penalty for non-operation of license 93
§11B-6-17. Renewal of gaming vessel and casino licenses 93
ARTICLE 7. LICENSES OTHER THAN GAMING LICENSES 94
§11B-7-1. License to supply gaming vessel or casino 94
§11B-7-2. License to operate gaming device 95
§11B-7-3. Licensing of key employees 96
§11B-7-4. Licensing of other gaming employees 96
§11B-7-5. Duration and renewal of licenses other than gaming licenses 97
§11B-7-6. Denial of application for license other than gaming license 98
§11B-7-7. Work permits required 99
§11B-7-8. Registration required 99
ARTICLE 8. CONDITIONS OF OPERATION100
§11B-8-1. Operation certificate100
§11B-8-2. Maintenance of books, records and documents101
§11B-8-3. Hours of operation102
§11B-8-4. Internal controls102
§11B-8-5. Games and gaming equipment103
§11B-8-6. Audits104
§11B-8-7. Licensees' annual reports; penalty for false reports105
ARTICLE 9. HEARINGS; APPEAL OF COMMISSION ACTION106
§11B-9-1. Opportunity for hearing106
§11B-9-2. Conduct of hearings; rules of evidence107
§11B-9-3. Appeal107
ARTICLE 10. PROHIBITED ACTIVITIES; SANCTIONS AND PENALTIES107
§11B-10-1. Penalties for false statements on applications107
§11B-10-2. Penalties for willful evasion of payment of license fees, other acts and omissions107
§11B-10-3. Unlicensed gambling games unlawful; penalties108
§11B-10-4. Swindling and cheating; penalties109
§11B-10-5. Use of device to obtain advantage at gambling; penalties110
§11B-10-6. Unlawful use of bogus chips or gaming billets, marked cards, dice, cheating devices,
unlawful coins; penalties111
§11B-10-7. Cheating games and devices in a licensed gaming vessel or casino; penalties113
§11B-10-8. Unlawful possession of device, equipment or other material illegally manufactured,
distributed, sold or serviced113
§11B-10-9. Skimming of gaming proceeds114
§11B-10-10. Posting of patronage prohibitions and penalties required115
§11B-10-11. Employment without license, permit or registration; penalties115
§11B-10-12. Unauthorized representation; penalties116
§11B-10-13. Forfeiture of property117
§11B-10-14. Activities prohibited by public officials118
§11B-10-15. Prohibition of political contributions119
§11B-10-16. Gaming by certain persons prohibited; penalties; defenses119
§11B-10-17. Civil penalties; determining appropriate sanctions121
§11B-10-18. Authority of gaming licensee and agents to detain or question persons suspected of
cheating; immunity from liability; posted notice required121
§11B-10-19. Continuing offenses123
ARTICLE 11. SPECIAL FUNDS; FEES AND TAXES123
§11B-11-1. Gaming revenue fund123
§11B-11-2. State gaming control fund124
§11B-11-3. Tax on adjusted gross receipts124
§11B-11-4. Sales tax exemption125
§11B-11-5. Collection of taxes126
§11B-11-6. Gaming vessel and casino license fees127
§11B-11-7. Fees for other than gaming vessel or casino licenses128
§11B-11-8. Work permit fees128
§11B-11-9. Registration fees128
§11B-11-10. Distribution of moneys in gaming revenue fund129
§11B-11-11. Payment of taxes132
§11B-11-12. Determination of tax liability133
§11B-11-13. Penalties133
ARTICLE 12. LOCAL APPROVAL OF GAMING ACTIVITIES134
§11B-12-1. Local option election in county or municipality134
§11B-12-2. Form of petition134
§11B-12-3. Notice of election135
§11B-12-4. When election held; election officers135
§11B-12-5. Form of ballot136
§11B-12-6. How election conducted and results certified136
§11B-12-7. When another election may be held137
§11B-12-8. Local control of hours and activities; state preemption137
ARTICLE 13. MISCELLANEOUS PROVISIONS137
§11B-13-1. Declaration of state's exemption from operation of provisions of 15 U.S.C. §1172137
§11B-13-2. Severability138
CHAPTER 15. PUBLIC SAFETY138
ARTICLE 11. GAMING CONTROL SECTION138
§15-11-1. Short title138
§15-11-2. Declaration of policy and legislative findings138
§15-11-3. Definitions139
§15-11-4. Establishment of the gaming control section139
§15-11-5. Organization and employees139
§15-11-6. Supervisory responsibilities within the gaming control section141
§15-11-7. General duties and powers of the gaming control section141
§15-11-8. Prosecution of criminal violations144
§15-11-9. Civil actions to restrain violations of the gaming control act144
§15-11-10. Inspection, seizure, and warrants144
H. B. 2470
(By Mr. Speaker, Mr. Chambers, and Delegates
Leach, Farris, Kime, Smirl and Hutchins)
(Introduced February 14, 1995; referred to the
Committee on the Judiciary then Finance.)
A BILL to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new
chapter, designated chapter eleven-b; and to further amend
chapter fifteen of said code by adding thereto a new article,
designated article eleven, all relating to the West Virginia
Gaming Control Act; creating gaming control commission and
gaming control section; providing generally therefor;
requiring the licensure of certain persons involved in gaming;
providing generally for licensure; prohibiting certain
activities; providing penalties therefor; and requiring local
approval prior to licensure.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new chapter,
designated chapter eleven-b; and that chapter fifteen of said code
be amended by adding thereto a new article, designated article
eleven, all to read as follows:
CHAPTER 11B. GAMING CONTROL COMMISSION.
ARTICLE 1. GENERAL PROVISIONS.
§11B-1-1. Short title.
This chapter, together with the provisions of article eleven,
chapter fifteen of this code, shall be known and may be cited as
the "West Virginia Gaming Control Act."
§11B-1-2. Declaration of policy; legislative findings;
legislative intent; scope of provisions.
(a) It is the public policy of the state that,
notwithstanding any provision of law to the contrary, the system of
vessel and casino gaming and wagering as provided for in this
chapter is legal when conducted under the terms specified by this
chapter and in accordance with the provisions of this chapter.
(b) The legislature finds that:
(1) The Constitution of this state grants to the Legislature
the authority to establish, by general law, a gaming industry in
this state and to further establish the manner of regulation,
control, ownership, licensure and operation of gaming as authorized
by this chapter; and
(2) The development of a gaming industry is important to the
economy of the state in that it will assist in the continuing
growth of the tourism industry and will benefit the general welfare
of our citizens and create new jobs.
(c) In enacting this gaming control act and developing a
gaming industry in this state, the legislature intends to:
(1) Allow certain gaming activities that will result in many
benefits to the state with no significant detriment to the citizens
of this state;
(2) Provide for significant, secure, permanent investment in this state; and
(3) Regulate, license and otherwise control the gaming
industry in such a manner as to accomplish and promote and protect
the health, safety, morals, good order and general welfare of our
citizens.
(d) This article does not apply to the parimutuel system of
wagering used or intended to be used in connection with the horse-
race or dog-race meeting as authorized under article twenty-three,
chapter nineteen of this code; lottery or lotto games authorized
under article twenty-two of this chapter; or bingo, raffles, or
games of skill or chance authorized under article twenty, chapter
forty-seven of this code.
§11B-1-3. Definitions.
As used in the gaming control act, which includes this chapter
and article eleven, chapter fifteen of this code, the following
words and terms have the meanings ascribed to them in this section,
unless a different meaning clearly appears in the context:
(1) "Adjusted gross receipts" means gross receipts of a
gaming vessel licensee or a casino licensee, less the total of all
sums paid out as winnings to wagerers, and less a deductible for
uncollectible gaming receivables. The deductible for uncollectible
gaming receivables shall not exceed the lesser of (A) a reasonable
provision for uncollectible wagerers' checks received from gaming
operations, or (B) two percent (2%) of the gross receipts.
(2) "Applicant" means the person applying for any license,
permit or registration pursuant to the provisions of article five the gaming control act.
(3) "Capital investment" means the amount of capital expended
on land acquisition costs; construction, renovation or repair
costs; costs of utility installation; professional fees paid to
persons who are not employed by the applicant; development fees;
interest and other financing costs; and other capital expenditures:
Provided, That such costs shall not include the salaries of any
owner or key employee, the cost of gaming equipment or other
personalty, or any pre-opening and start-up costs for advertising
and promotion.
(4) "Casino" means the designated area, on the premises of a
resort hotel, in which gaming is conducted pursuant to the
provisions of the gaming control act.
(5) "Casino gaming" means to deal, operate, carry on,
conduct, maintain or expose for play any gambling game as defined
in subdivision (13) of this section in a casino as defined in
subdivision (4) of this section.
(6) "Chairman" means the chairman of the gaming control
commission as set forth in section five, article two of this
chapter.
(7) "Commission" or "gaming control commission" means the
West Virginia gaming control commission, created and authorized by
article two of this chapter.
(8) "Commissioner" or "member of the commission" means a
member of the gaming control commission appointed pursuant to
section two, article two of this chapter.
(9) "Controlled premises" means land, together with all
buildings, improvements and personal property located thereon, and
all parts of any vessel, when such land or vessel is utilized by a
person to conduct activities which are regulated or controlled by
the provisions of the gaming control act, including, but not
limited to, all premises wherein vessel gaming or casino gaming is
conducted, or wherein gaming devices or equipment are manufactured,
sold, distributed, or serviced, or wherein any records of such
activities are prepared or maintained.
(10) "Commission employee" means any person employed by the
gaming control commission, including its executive director.
(11) "Controlling interest" means;
(A) For a partnership, an interest as a general or limited
partner;
(B) For a corporation, an interest of more than fifty percent
of the stock in the corporation; and
(C) For any other entity, an ownership interest of more than
fifty percent in the entity.
(12) "Dock" means the location where a gaming vessel moors
for the purpose of embarking and disembarking passengers.
(13) "Game" or "gambling game" means any banking or
percentage game played with cards, dice or with any gaming device
for money, property, checks, credit or any representative of value,
including, without limiting the generality of the foregoing, any of
the following games, or a variation or combination thereof:
(A) Baccarat.
(B) Twenty-one.
(C) Poker.
(D) Craps.
(E) Slot machine.
(F) Video games of chance.
(G) Roulette wheel.
(H) Klondike table.
(I) Punchboard.
(J) Faro layout.
(K) Keno layout.
(L) Numbers ticket.
(M) Push card.
(N) Jar ticket.
(O) Pull tab.
(P) Big six.
(14) "Gaming" or "gambling" means to deal, operate, carry on,
conduct, maintain or expose for play any game as defined in
subsection (13) of this section.
(15) "Gaming control act" means the West Virginia gaming
control act, which includes the provisions of this chapter and the
provisions of article eleven, chapter fifteen of this code.
(16) "Gaming control section" or "section" means the gaming
control section in the division of public safety as created and
organized in accordance with the provisions of article eleven,
chapter fifteen of this code.
(17) "Gaming device" means any mechanical, electromechanical, electrical or electronic device, component or machine used directly
or indirectly in connection with gaming or any game which affects
the result of a wager by determining win or loss. The term
includes a system for processing information which can alter the
normal criteria of random selection, which affects the operation of
any game, or which determines the outcome of a game.
(18) "Gaming employee" means any natural person employed by
a gaming vessel or casino licensee who is required to be licensed,
permitted or registered pursuant to the provisions of articles five
and seven of this chapter.
(19) "Gaming premises" means the total parcel of contiguous
real estate owned by a licensee whereon a casino or a gaming vessel
is located.
(20) "Gaming supplier" means any manufacturer, distributor or
supplier of gaming supplies as defined in subsection (21) of this
section;
(21) "Gaming supplies" means any equipment or mechanical,
electromechanical or electronic contrivance, component or machine
used remotely or directly in connection with gaming, including
dice, playing cards, tables and table layouts, links which connect
progressive slot machines, equipment which affects the proper
reporting of gross revenue, computerized systems of betting at a
race book or sports pool, computerized systems for monitoring slot
machines, and devices for weighing or counting money.
(22) "Gross receipts" means the total of all sums received by
a casino licensee or a gaming vessel licensee from gaming operations, including checks, whether collected or not.
(23) "Holding company" means any corporation, association,
firm, partnership, trust or other form of business organization not
a natural person which, directly or indirectly, owns, has the power
or right to control, or has the power to vote any significant part
of the outstanding voting securities of a corporation which holds
or applies for a gaming vessel license or a casino license. For
the purpose of this section, in addition to any other reasonable
meaning of the words used, a "holding company" indirectly has,
holds or owns any such power, right or security if it does so
through any interest in a subsidiary or successive subsidiaries,
however many such subsidiaries may intervene between the holding
company and the corporate licensee or applicant.
(24) "Kanawha River" means that navigable portion of the
Kanawha River from the locks located at London to Point Pleasant.
(25) "Key employee" means any gaming employee employed in
gaming operations in a supervisory capacity or empowered to make
discretionary decisions which regulate gaming operations,
including, without limitation, pit bosses, shift bosses, credit
executives, cashier supervisors, managers and assistant managers of
the room where gaming is conducted, managers or supervisors of
security employees, or any other natural person empowered to make
discretionary decisions which regulate the management of any
controlled premises, including, without limitation, hotel managers,
entertainment directors, food and beverage directors, or any other
employee so designated by the gaming control commission for reasons consistent with the policies of the gaming control act.
(26) "License" means a license required by article five of
this chapter and issued by the commission, including:
(A) A license to operate a gaming vessel or casino;
(B) A license to supply a gaming vessel or casino;
(C) A license to operate a gaming device;
(D) A license to be employed by a licensee as a key employee
or in such other position as a license may be required in
accordance with the provisions of articles five and seven of this
chapter.
(27) "Licensed gaming device operator" means an individual
who is licensed by the commission to engage in the business of
operating a gaming device, either as an employee or independent
contractor of a licensed gaming vessel or casino operator, pursuant
to the provisions of section two, article seven of this chapter.
(28) "Licensed gaming operation" means any gaming vessel or
casino licensed to conduct gaming in accordance with the provisions
of article six of this chapter.
(29) "Licensed gaming supplier" means a person who is
licensed by the commission to engage in the business of
manufacturing, distributing or supplying gaming supplies to a
gaming vessel or casino pursuant to the provisions of section one,
article seven of this chapter.
(30) "Licensee" means a licensed gaming vessel operator or a
licensed casino operator licensed pursuant to the provisions of
articles five and six of this chapter.
(31) "Licenseholder" means any person other than a licensee
who is licensed under the provisions of articles five and seven of
this chapter.
32) "Local governing body" means, in the case of a casino or
vessel located or docked within a municipality, the city council or
other governing body of the municipality. In the case of a casino
or vessel not located or docked within a municipality, "local
governing body" means the county commission of the county in which
the casino or vessel is located or docked.
(33) "Monongahela River" means the navigable portion of the
Monongahela River from the southernmost boundary of the town of
Fairmont to the point at which the Monongahela River flows into
Pennsylvania at the state border.
(34) "Ohio River" means the navigable portion of the Ohio
River from its northernmost point at which the Ohio River flows
into West Virginia at the state border and the confluence of the
Ohio River with the Big Sandy River in Cabell County.
(35) "Operation certificate" is the certificate which a
licensee shall have in accordance with section one, article eight
of this chapter prior to commencement of operation of any gaming
vessel or casino.
(36) "Permittee" means a gaming employee required to have a
work permit pursuant to the provisions of articles five and seven
of this chapter.
(37) "Person" means any natural person, corporation,
association, firm, partnership, limited partnership, trust or other business organization, not a natural person, regardless of its
form, structure or nature.
(38) "Publicly traded corporation" means any corporation or
other legal entity, except a natural person, which:
(A) Has one of more classes of securities registered pursuant
to section 12 of the Securities Exchange Act of 1934, as amended
(15 U.S.C. §781); or
(B) Is an issuer subject to section 15(d) of the Securities
Exchange Act of 1934, as amended (15 U.S.C. §780).
(39) "Registration" means any requirement, other than a
requirement of a license or work permit, which the commission may
require as a prerequisite to conduct a particular business or be
employed by a licensee or licenseholder in accordance with the
provisions of eight, article seven of this chapter.
(40) "Registrant" means any person who is registered pursuant
to the provisions of section eight, article seven of this chapter.
(41) "Resident" or "West Virginia resident" means any person
who occupies a dwelling within the state of West Virginia, who has
a present intent to remain within the state for a period of time,
and who manifests the genuineness of that intent by establishing an
ongoing physical presence within the state with indicia that his or
her presence within the state is other than merely transitory in
nature.
(42) "Resort hotel" means a hotel that meets the requirements
set forth in section two, article six of this chapter, that has at least one building containing not fewer than six hundred fifty
guest rooms under common ownership, and that has substantial
recreational guest amenities in addition to casino gaming.
(43) "Section employee" means an employee or agent of the
gaming control section created in article eleven, chapter fifteen
of this code and includes the superintendent of the division of
public safety.
(44) "State gaming fund" means a special fund in the state
treasury created pursuant to section one, article eleven of this
chapter to which deposits and disbursements are made and from which
the operating costs of the commission shall be disbursed and for
other activities as prescribed pursuant to the gaming control act.
(45) "Temporary work permit" means a work permit which is
valid only for a period not to exceed ninety days from its date of
issue and which is not renewable.
(46) "Vessel" or "gaming vessel" means a vessel that is used
for authorized and licensed vessel gaming which is a dockside
floating facility which is a navigable vessel or has the appearance
of a navigable vessel, which is permanently anchored on the Kanawha
river, the Ohio river or the Monongahela river, and which is
outside the jurisdiction of the United States Coast Guard.
(47) "Vessel gaming" means to deal, operate, carry on,
conduct, maintain or expose for play any gambling game as defined
in subdivision (13) of this section on a vessel as defined in
subdivision (46) of this section.
(48) "Work permit" or "permit" means any card, certificate, permit or other indicia of employability other than a license,
which work permit may be issued by the commission, whether
denominated as a work permit, registration card or otherwise, to
any individual not required to be licensed and authorizing the
employment of the holder as a gaming employee in accordance with
the provisions of section seven, article seven of this chapter.
ARTICLE 2. WEST VIRGINIA GAMING CONTROL COMMISSION; ESTABLISHMENT
AND ORGANIZATION.
§11B-2-1. Creation of gaming control commission; number of
members.
The West Virginia gaming control commission, consisting of
five members, is hereby created in the department of tax and
revenue and may utilize the administrative support and services of
that department. The commission is not subject to control,
supervision or direction by the department of tax and revenue, but
is an independent, self-sustaining commission which shall have the
powers and duties specified in this chapter and all other powers
necessary and proper to fully and effectively execute this chapter
for the purposes of administering, regulating, overseeing and
enforcing the system of vessel and casino gaming established by
this chapter. Its jurisdiction shall extend to every person
involved in vessel and casino gaming operations in this state.
The commission is a part-time commission of laypersons who
shall make policy and shall have such other powers and perform such
other duties as may be specified in this chapter or set forth in
rules authorized to be promulgated by the commission. The ministerial duties of the commission shall be administered and
carried out by the executive director and such staff as may be
hired by the commission in accordance with the provisions of
sections three and four, article four of this chapter.
Each member of the commission shall devote the time necessary
to carry out the duties and obligations of the office and may
pursue and engage in another business, occupation, or gainful
employment that is not in conflict with the duties of the
commission.
While the commission is self-sustaining and independent, it,
its members, its executive director and its employees are subject
to article nine-a of chapter six, chapter six-b, chapter twenty-
nine-a, and chapter twenty-nine-b of this code. Purchasing by the
commission shall be in accordance with the provisions of article
three, chapter five-a of this code.
§11B-2-2. Appointment of members of gaming control commission;
qualifications and eligibility.
(a) The five members of the commission shall be appointed by
the governor, with the advice and consent of the Senate. No more
than three members of the commission shall belong to the same
political party;
(1) One member is to be a lawyer licensed by, and in good
standing with, the West Virginia state bar;
(2) One member is to be a certified public accountant
experienced in taxation, accounting and auditing;
(3) One member is to be a person with at least five years of professional experience in law enforcement and criminal
investigation;
(4) One member is to be a representative of the tourism and
hospitality industry; and
(5) One member is to be a representative of the public at
large.
(b) Each member of the commission:
(1) Is to be a citizen of the United States, a resident of
the state of West Virginia and at least twenty-one years of age;
(2) Is to be a person of good moral character;
(3) May not be a licensee or licenseholder, or spouse, child
or parent of a licensee or licenseholder, or otherwise be subject
to the regulation and control of the gaming control commission, or
be a member or be subject to the regulation and control of the West
Virginia Racing Commission or the West Virginia Lottery Commission;
(4) May not have a financial interest in any activity
regulated by the commission or receive compensation from a person
regulated or controlled by the commission;
(5) May not be a staff member of the commission nor receive
compensation from a person who was or is a member of the
commission;
(6) May not hold any other elective or appointive public
office for which compensation is received; and
(7) May not have been convicted of, pled guilty or nolo
contendere to, or under indictment for, a felony or other offense
punishable by imprisonment for more than one year under the laws of this state, another state, a territory of the United States, the
United States or any foreign country.
(c) As a condition of qualifying for membership on the
commission, each nominee for appointment is required to provide the
gaming control section with photographs, fingerprints and any other
relevant material requested by the gaming control section in its
efforts to assist the governor in a thorough investigation into the
nominee's background, with particular regard to the nominee's
financial stability, integrity, and responsibility and his or her
reputation for good character and honesty.
§11B-2-3. Terms of commission members; conditions of membership.
(a) The term of each member of the commission made pursuant
to this section shall be for four years, except that for an initial
period, the terms of office of the initial commission shall
commence from an initial date of appointment beginning no later
than the first day of July, one thousand nine hundred ninety-five
and shall run as follows:
(1) One member shall be appointed for a term ending on the
thirtieth day of June, one thousand nine hundred ninety-seven;
(2) Two members shall be appointed for terms ending on the
thirtieth day of June, one thousand nine hundred ninety-eight; and
(3) Two members shall be appointed for terms ending on the
thirtieth day of June, one thousand nine hundred ninety-nine.
(b) After the initial appointments are made pursuant to the
provisions of subdivision one of this subsection, members shall
thereafter be appointed or reappointed for terms of four years following the expiration date of the previous term or terms:
Provided, That no member shall serve more than two terms, including
the initial term.
(c) Appointments to fill vacancies on the commission shall be
for the unexpired term of the member to be replaced.
(d) At the expiration of a member's term, the member shall
continue to serve until a successor is appointed and qualified, but
in the event that a successor is not duly appointed and qualified
within one hundred eighty calendar days after the expiration of a
member's term, a vacancy shall be deemed to exist.
§11B-2-4. Oath and bond.
Before entering upon the discharge of the duties as
commissioner, each commissioner shall:
(1) Take and subscribe to the oath of office prescribed in
section five, article four of the Constitution of West Virginia;
and
(2) Enter into a bond in the penal sum of one hundred
thousand dollars with a corporate surety authorized to engage in
business in this state as a bonding or surety company, conditioned
upon the faithful discharge and performance of the duties of the
office, under the following conditions:
(A) The bond shall be approved by the attorney general as
form and by the governor as to sufficiency;
(B) Premium on the bond shall be paid by the gaming control
commission from the state gaming control fund; and
(C) The bond, together with the executed oath, shall be filed in the office of the secretary of state.
§11B-2-5. Commission chairman.
In making the initial appointments to the commission, the
governor shall designate a member to serve as chairman. The member
so designated shall serve in such capacity throughout his or her
initial term as a member of the commission and until his or her
successor as a chairman shall have been elected by the commission
as hereinafter provided.
Following the term of the initial chairman, thereafter the
chairman shall be elected by the commission from among its members,
and the member so elected shall (1) serve as chairman for a term of
three years and until his or her successor shall have been elected,
or (2) shall serve in such capacity throughout his or her service
as a member of the commission, whichever period is shorter. In the
event that a successor chairman is not elected within one hundred
eighty calendar days after the expiration of a chairman's term, a
vacancy shall be deemed to exist. A member may not serve more than
two consecutive terms as chairman, including the initial term.
§11B-2-6. Compensation of members; reimbursement for expenses.
(a) Each member of the commission shall receive two hundred
dollars for each day or portion thereof spent in the discharge of
his or her official duties. All such payments shall be made from
the state gaming control fund.
(b) Each member of the commission shall be reimbursed for all
actual and necessary expenses and disbursements involved in the
execution of official duties. All such payments shall be made from the state gaming control fund.
§11B-2-7. Meeting requirements.
The commission shall initiate operation of the commission on
a continuous basis at the earliest and most practicable time, and
under the following conditions:
(1) The commission shall meet within the state at least one
time per month and at such times as the chairman may determine.
The commission shall also meet upon a call of three or more members
upon seventy-two hours written notice to each member.
(2) Three members of the commission constitute a quorum for
the transaction of any business and for the performance of any
duty.
(3) A majority vote of the members present shall be required
for any final determination by the commission.
(4) The commission may elect to meet in executive session
after an affirmative vote of a majority of its members present in
accordance with section four, article nine-a, chapter six of this
code.
(5) The commission shall keep a complete and accurate record
of all its meetings in accordance with section five, article nine-
a, chapter six of this code.
§11B-2-8. Removal of commission members.
Notwithstanding the provisions of section four, article six,
chapter six of this code, the governor may remove any commission
member for cause, incompetence, misconduct, neglect of duty,
misfeasance or nonfeasance in office, or after a conviction of, or having pled guilty or nolo contendere to, an offense punishable by
imprisonment for more than one year.
ARTICLE 3. RESTRICTIONS ON GAMING CONTROL COMMISSION MEMBERS,
COMMISSION EMPLOYEES AND GAMING CONTROL SECTION
EMPLOYEES.
§11B-3-1. Restrictions on pre-employment by commission members,
commission employees and section employees.
(a) No person shall be appointed to or employed by the
commission or section if, during the period commencing three years
prior to appointment or employment, said person held any direct or
indirect interest in, or any employment by, any person which is
licensed as a gaming vessel licensee or a casino licensee pursuant
to sections five or six, article six of this chapter, or as a
gaming supplier pursuant to section one, article seven of this
chapter, or has an application for such a license pending before
the commission except as follows:
(1) Such person may be appointed to or employed by the
commission or section if, in the opinion of the governor as to
appointments and in the opinion of the commission as to employment,
his or her prior interest in any such gaming vessel licensee or
casino licensee or a licensed gaming supplier would not interfere
with the objective discharge of such person's appointment or
employment obligations, and if the licensee or licenseholder in
which the person had an interest is publicly traded: Provided,
That in no instance shall any person be appointed to or employed by
the commission or section if the person's prior interest in such a gaming vessel licensee or casino licensee or licensed gaming
supplier constituted a controlling interest in that gaming vessel
licensee or casino licensee or licensed gaming supplier; or
(2) Such person may be employed by the commission or section
in a secretarial or clerical position if, in the opinion of the
employing agency, his or her previous employment by, or prior
interest in, any such gaming vessel licensee or casino licensee or
licensed gaming supplier would not interfere with the objective
discharge of the person's employment obligations.
(b) Prior to appointment or employment, each member of the
commission, each commission employee and each section employee
shall swear or affirm that:
(1) He or she possesses no interest in, or is not employed
by, any business or organization licensed by or registered with the
commission; or
(2) If the person has had such prior interest or previous
employment within the three years preceding the appointment or
employment, that any such prior interest or previous employment has
been fully disclosed to the gaming control section, the commission
or the governor, as appropriate, and has been found to fall within
the exceptions set forth in subdivisions (1) or (2), subsection (a)
of this section.
§11B-3-2. Employment restrictions on commissioners, commission
employees and section employees.
(a) No commission member, commission employee or section
employee shall have any interest, direct or indirect, in any applicant or in any person licensed by or registered with the
commission during his or her term of office or employment.
(b) Each commission employee, including legal counsel, and
each section employee shall devote his or her entire time and
attention to his or her duties and shall not pursue any other
business or occupation or other gainful employment, except as
follows:
(1) Secretarial and clerical personnel may engage in such
other gainful employment as shall not interfere with their duties
to the commission or section, unless otherwise directed; and
(2) Other commission employees and section employees may
engage in such other gainful employment as shall not interfere or
be in conflict with their duties to the commission or section, upon
approval by the commission or the superintendent of the division of
public safety, as the case may be.
(c) No member of the commission, commission employee, or
section employee shall:
(1) Use any official authority or influence for the purpose
of interfering with or affecting the result of an election or a
nomination for office;
(2) Directly or indirectly coerce, attempt to coerce, command
or advise any person to pay, lend or contribute anything of value
to a party, committee, organization, agency or person for political
purposes; or
(3) Take any active part in political campaigns or the
management thereof: Provided, That nothing herein shall prohibit a person from voting as he or she chooses or from expressing his or
her personal opinions on political subjects and candidates.
§11B-3-3. Application of governmental ethics act; commission's
code of ethics.
(a) The "West Virginia Governmental Ethics Act", as set forth
in chapter six-b of this code, shall apply to members of the
commission and to all commission employees and section employees,
except as herein specifically provided.
(1) Each member of the commission, the executive director,
and the superintendent of the division of public safety shall file
with the West Virginia ethics commission a financial disclosure
statement listing all assets and liabilities, property and business
interests, and sources of income of said member, executive
director, or superintendent and the member's or executive
director's or superintendent's spouse and shall provide to the
ethics commission a financial disclosure statement listing all
assets and liabilities, property and business interests, and
sources of income of the parents, brothers, sisters, and children
of said member, executive director, or superintendent. Such
statement shall be under oath and shall be filed at the time of
appointment and annually thereafter.
(2) Each commission employee and section employee, except for
secretarial and clerical personnel, shall file with the ethics
commission a financial disclosure statement listing all assets and
liabilities, property and business interests, and sources of income
of said employee and the employee's spouse. Such statement shall be under oath and shall be filed at the time of employment and
annually thereafter.
(b) The commission shall, no later than the first day of
January, one thousand nine hundred ninety-six, promulgate a code of
ethics that is specific to the commission and the section and that
is modeled upon the Code of Judicial Conduct of the American Bar
Association, as amended and adopted by the Supreme Court of West
Virginia. This code of ethics shall include, but not be limited
to, provisions that address the propriety of relationships and
dealings between the commission and its staff, the section and its
staff, and licensees, licenseholders and applicants for licensure
under the gaming control act.
(c) The code of ethics promulgated by the commission shall
not be in conflict with the laws of this state, except, however,
that the code of ethics may be more restrictive than any law of
this state.
(d) The code of ethics promulgated by the commission shall be
submitted to the West Virginia ethics commission for its approval.
The code of ethics shall include, but not be limited to, provisions
that:
(1) No commission member, commission employee or section
employee shall be permitted to gamble in any establishment licensed
by the commission except in the course of his or her duties.
(2) No commission member, commission employee or section
employee shall solicit or accept employment from any person
licensed by or registered with the commission or from any applicant for a period of four years after termination of service with the
commission or section, unless subject to section four of this
article.
(3) No commission member, commission employee or section
employee shall act in his or her official capacity in any matter
wherein he or she or his or her spouse, child, parent or sibling
has a direct or indirect personal financial interest that might
reasonably be expected to impair his or her objectivity or
independence of judgment.
(4) No commission member, commission employee or section
employee shall act in his or her official capacity in a matter
concerning an applicant for licensure or a licensee or
licenseholder who is the employer of a spouse, child, parent or
sibling of said commission member, commission employee or section
employee when the fact of the employment of such spouse, child,
parent or sibling might reasonably be expected to impair the
objectivity and independence of judgment of said commission member,
commission employee or section employee.
(5) No spouse, child, parent or sibling of a commission
member or the executive director shall be employed in any capacity
by an applicant for a gaming vessel or casino license or a gaming
vessel or casino licensee nor by any holding, intermediary or
subsidiary company thereof.
(6) No commission member or the executive director shall meet
with any person, except for any other member of the commission,
commission employee or section employee, or discuss any issues involving any pending or proposed application or any matter
whatsoever which may reasonably be expected to come before the
commission, or any member thereof, for determination unless the
meeting or discussion takes place on the business premises of the
commission: Provided, That commission members or the executive
director may meet to consider matters requiring the physical
inspection of equipment or premises at the location of the
equipment or premises.
§11B-3-4. Post-employment restrictions.
(a) Neither a member of the commission nor the executive
director shall hold any direct or indirect interest in, or be
employed by, any applicant or by any person licensed by or
registered with the commission, for a period of four years
commencing on the date his or her membership on, or employment
with, the commission terminates.
(b) No commission employee or section employee may acquire
any direct or indirect interest in, or accept employment with, any
applicant or any person licensed by or registered with the
commission, for a period of two years commencing at the termination
of employment with the commission or section. At the end of two
years, the former employee may acquire an interest in, or accept
employment with, any applicant or person licensed by or registered
with the commission upon application to and with the approval of
the commission, upon a finding that the interest to be acquired or
the employment will not create the appearance of a conflict of
interest and does not evidence a conflict of interest in fact.
(c) No commission member or person employed by the commission
or section shall represent any person or party other than the state
before or against the commission for a period of two years from the
termination of his or her office or employment with the commission
or section.
(d) No partnership, firm or corporation in which a former
commission member, former commission employee or former section
employee has an interest, nor any partner, officer or employee of
any such partnership, firm or corporation, shall make any
appearance or representation which is prohibited to said former
member or employee: Provided, That nothing herein shall prohibit
such partnership, firm or corporation from making such appearance
or representation on behalf of a gaming supplies licenseholder
licensed pursuant to section one, article seven of this chapter.
(e) Notwithstanding any post-employment restriction imposed
by this section, nothing herein shall prohibit a former commission
member, former commission employee or former section employee, at
any time after termination of such membership or employment, from
acquiring an interest in, or soliciting or obtaining employment
with, any person licensed as a gaming supplier pursuant to section
one, article seven of this chapter, or any applicant for such
licensure.
§11B-3-5. Applicant, licensee and licenseholder liability for
violations.
(a) No applicant, licensee or licenseholder shall employ or
offer to employ, or provide, transfer or sell, or offer to provide, transfer or sell, any interest, direct or indirect, in any person
licensed with the commission to any person restricted from such
transactions by the provisions of sections one, two and three of
this article.
(b) The commission shall revoke the license of any licensee
or licenseholder violating the provisions of this section and shall
impose such other sanctions upon an applicant, licensee or
licenseholder for violations of this section as are authorized by
article ten of this chapter.
§11B-3-6. Enforcement.
(a) The ethics commission established pursuant to the West
Virginia governmental ethics act pursuant to chapter six-b of this
code shall enforce the provisions of sections one, two, three and
four of this article.
(b) Penalties for violations of provisions of the West
Virginia governmental ethics act shall be the penalties set forth
in that act.
(c) Any person violating any other provision of sections one,
two, three or four of this article, or the rules or code of ethics
promulgated thereunder, is guilty of a misdemeanor, and, upon
conviction thereof, shall be confined in jail for not more than six
months, or fined not more than one thousand dollars, or both such
confinement and fine.
ARTICLE 4. POWERS AND DUTIES OF GAMING CONTROL COMMISSION.
§11B-4-1. General duties of gaming control commission.
The gaming control commission shall have general responsibility for the implementation of the gaming control act, as
hereinafter provided, including, without limitation, the
responsibility for the following:
(a) To review and decide promptly and in reasonable order all
license, permit and registration applications and issues affecting
the granting, suspension, revocation, or renewal thereof;
(b) To conduct all hearings pertaining to civil violations of
the gaming control act or the legislative rules promulgated
hereunder;
(c) To propose for promulgation, in accordance with the
provisions of chapter twenty-nine-a of this code, such legislative
rules as in its judgment may be necessary to fulfill the policies
of the gaming control act;
(d) To formulate and distribute all forms, including
application forms, necessary to the implementation of the gaming
control act: Provided, That all forms and returns which shall be
used for the payment of taxes shall be formulated and distributed
by the tax commissioner;
(e) To keep a list of all gaming vessel and casino operators,
gaming device operators, and gaming vessel and casino suppliers who
are currently licensed;
(f) To keep a record of all commission proceedings available
for public inspection;
(g) To file a written annual report to the governor, the
president of the Senate and the speaker of the House of Delegates
on or before the thirtieth day of January of each year, and such additional reports as the governor or Legislature may request.
The annual report shall include:
(1) A statement of receipts and disbursements by the
commission and its financial position;
(2) The number and percentage of state residents under
training and employed by each licensed gaming vessel and casino;
(3) Actions taken by the commission; and
(4) Any additional information and recommendations that the
commission may deem valuable or the governor or Legislature may
request.
(h) To collect all license, investigation and registration
fees set forth in article eleven of this chapter: Provided, That
the commission shall not collect the taxes imposed by article
eleven of this chapter or such other license fees or taxes which
may be applicable pursuant to other provisions of this code;
(i) To cooperate with the state tax commissioner in the
collection of all taxes imposed by article eleven of this chapter
or such other taxes as may be applicable pursuant to other
provisions of this code;
(j) To levy and collect all criminal and civil penalties
imposed in accordance with article ten of this chapter for the
violation of provisions of the gaming control act and the
legislative rules promulgated hereunder;
(k) To be present, through inspectors and other commission
employees and section employees, at all times during the operation
of any gaming vessel or casino for the purpose of certifying the revenue thereof, receiving complaints from the public relating to
the conduct of gaming operations, examining records of revenues and
procedures, and conducting periodic reviews of operations and
facilities for the purpose of evaluating current or suggested
provisions of the gaming control act and the legislative rules
promulgated hereunder;
(l) To refer to the gaming control section, for investigation
and prosecution, any evidence of a violation of the gaming control
act and the legislative rules promulgated hereunder; and
(m) To review and rule upon any complaint by a gaming vessel
licensee or a casino licensee regarding any investigative
procedures of the gaming control section which are alleged to be
unnecessarily disruptive of gaming operations.
§11B-4-2. General powers of gaming control commission.
(a) In enforcing the provisions of the gaming control act,
the commission shall have the power and authority to:
(1) Deny any application;
(2) Limit or restrict any license, permit or registration;
(3) Suspend or revoke any license, permit or registration;
and
(4) Impose a penalty on the holder of any license, permit or
registration for any cause set forth in the gaming control act or
the legislative rules promulgated hereunder.
(b) In addition to powers relating to licensure, the
commission shall have the power and authority to:
(1) Require that a gaming employee be removed from his or her job, subject to the requirements for fair hearing set forth in
article nine of this chapter;
(2) Eject or exclude, or authorize the ejection or exclusion
of, any person from a gaming vessel or casino if the person
interferes with the orderly conduct of vessel gaming, is in
violation of section sixteen, article ten of this chapter, or is in
violation of any other applicable provisions of this chapter or any
rule adopted pursuant hereto; and
(3) Exercise such other powers as may be necessary to
effectuate the provisions of the gaming control act.
§11B-4-3. Appointment of executive director; duties;
compensation.
(a) There is hereby created the position of executive
director whose duties include the ministerial management and
administration of the office of the state gaming control
commission. The executive director shall:
(1) Be appointed by the commission within sixty days after
the appointment of the initial slate of commission members;
(2) Serve at the pleasure of the commission, and shall not be
replaced unless three commission members vote in the affirmative;
(3) Serve on a full-time basis and shall not engage in any
other profession or occupation, including the holding of a
political office in the state either by election or appointment,
while serving as executive director;
(4) Be of good repute, particularly in the areas of honesty
and integrity and shall favorably pass a thorough background investigation, including finger printing and criminal
investigation, prior to appointment;
(5) Have at least ten years of responsible administrative
experience, possess broad management skills, and have knowledge of
the practices, procedures and principles of the gaming industry.
(6) Not be a licensee or licenseholder, or spouse, child or
parent of a licensee or licenseholder, or otherwise be subject to
the regulation of the commission, or be a member of or subject to
the regulation of the West Virginia Racing Commission or the West
Virginia Lottery Commission;
(7) Not have a financial interest in any activity regulated
by or receive compensation from a person regulated by the
commission;
(8) Not have been convicted of, or pled guilty or nolo
contendere to, a felony or a gaming-related misdemeanor; and
(9) Meet such eligibility requirements as may be otherwise
set forth in this chapter or adopted by rule of the commission.
(b) The duties of the executive director shall encompass the
following:
(1) Direct and administer the daily operations of the
commission;
(2) Collect the fees and penalties imposed under article
eleven of this chapter or rules adopted by the commission;
(3) Cooperate with the tax commissioner for the collection of
all taxes imposed by article eleven of this chapter and such other
taxes as may be applicable in accordance with other provisions of this code;
(4) Administer the state gaming control fund created pursuant
to section two, article eleven of this chapter;
(5) Keep the records and papers of the commission, including
a record of each proceeding;
(6) Administer the licensing of individuals who work in
connection with vessel and casino gaming;
(7) Prepare, issue and submit reports of the commission;
(8) Perform any other duty that the commission directs.
(c) All payments to the executive director as compensation
shall be made from the state gaming control fund. The executive
director is entitled to:
(1) A reasonable and competitive compensation package to be
established by the commission; and
(2) Reimbursement for expenses under the standard state
travel regulations.
§11B-4-4. Employment of commission staff; conditions of
employment; contracts for services.
With the approval of the commission, the executive director
may employ such professional, clerical, technical and
administrative personnel as the executive director deems necessary
for the performance of the ministerial duties of the commission.
These employees shall be state employees hired in accordance with
article six, chapter twenty-nine of this code, as may be necessary
to carry out the provisions of this article. All such employees
shall be hired in accordance with the provisions of article three of this chapter and, as a condition of employment with the
commission, each employee of the commission shall provide the
commission with the individual's fingerprints and any other
relevant material requested to assist in a thorough background
investigation. The fingerprints and any other relevant material
shall be taken and investigated by the gaming control section.
With the approval of the commission, the executive director
may contract for professional and technical services, including
legal, financial, engineering, architectural and other services
necessary or expedient in the conduct of the commission's affairs.
§11B-4-5. Investigative powers.
(a) The commission has the authority to conduct
investigations and, in accordance with the provisions of article
nine of this chapter, investigative hearings concerning the conduct
of licensees and licenseholders, of gaming employees, of gaming and
gaming operations, and the development and well-being of the gaming
industry.
(b) In conducting an investigation or an investigative
hearing, the commission has the power and authority to:
(1) Issue subpoenas to compel the attendance of witnesses and
the production of evidence at any place within this state;
(2) To administer oaths and to require testimony under oath
before the commission or the gaming control section in the course
of any investigation or hearing conducted pursuant to the
provisions of the gaming control act;
(3) To serve, or cause to be served, its process or notices in the same manner as is provided for the service of process and
notice in civil actions under the rules of civil procedure for
trial courts of record;
(4) To propound written interrogatories and to authorize and
empower the gaming control section to propound written
interrogatories; and
(5) To appoint hearing examiners for hearings to be held
before the commission or the gaming control section, and to
delegate to such hearing examiners the power and authority to
administer oaths, issue subpoenas and require testimony under oath.
§11B-4-6. Testimonial immunity.
The commission may order any person to answer a question or
questions or produce evidence of any kind and confer immunity as
provided in this section. If, in the course of any investigation
or hearing conducted under this act, a person refuses to answer a
question or produce evidence on the ground that he or she will be
exposed to criminal prosecution thereby, then in addition to any
other remedies or sanctions provided for by this act, the
commission may, by resolution of four of its members and after the
written approval of the attorney general, issue an order to answer
or to produce evidence with immunity.
If, upon issuance of such an order, the person complies
therewith, that person shall be immune from having such responsive
answer given by him or her, or such responsive evidence produced by
him or her, or evidence derived therefrom, used to expose him or
her to criminal prosecution, except that such person may nevertheless be prosecuted for any perjury committed in such answer
or in producing such evidence, or for contempt for failing to give
an answer or produce evidence in accordance with the order of the
commission: Provided, That no period of incarceration for contempt
shall exceed eighteen months in duration pursuant to this section.
Any such answer given or evidence produced shall be admissible
against him or her upon any criminal investigation, proceeding or
trial against him or her for such perjury; upon any investigation,
proceeding or trial against him or her for such contempt; or in any
manner consonant with state and constitutional provisions.
§11B-4-7. Collection of fees and penalties.
At any time within five years after any amount of fees or
penalties authorized or required to be collected pursuant to the
provisions of the gaming control act shall become due and payable,
the commission may bring a civil action in the courts of this state
or any other state or of the United States, in the name of the
state of West Virginia, to collect the amount delinquent, together
with penalties and interest. An action may be brought whether or
not the person owing the amount is at such time an applicant,
licensee, licenseholder, permittee or registrant pursuant to the
provisions of the gaming control act. If such action is brought in
this state, a writ of attachment may be issued and no bond or
affidavit prior to the issuance thereof is required. In all
actions in this state, the records of the commission are prima
facie evidence of the determination of the fee or penalty or the
amount of the delinquency.
§11B-4-8. Required rulemaking.
The commission shall, without limitation on the powers
conferred in subsection (c), section one of this article, include
within its legislative rules the following specific provisions in
accordance with the provisions of the gaming control act:
(1) Prescribing the methods and forms of application which
any applicant shall follow and complete prior to consideration of
the application by the commission, which rules, with respect to an
application for a gaming license, shall require such schematics,
diagrams and plans as shall assure the commission that the proposal
is suitable by law enforcement, aesthetic and architectural
standards;
(2) Describing all gambling games approved by the commission
to be played in licensed gaming vessels or casinos in accordance
with rules to be adopted by the commission;
(3) Identifying gaming devices within the vessel or casino
gaming operation which require licensed operators, and adopt
standards for licensing gaming device operators;
(4) Determining which gaming employees shall be licensed in
addition to those required to be licensed by articles five and
seven of this chapter, and determining which gaming employees and
other persons shall be permitted or registered or otherwise
determined to be qualified for association with the gaming
industry;
(5) Prescribing the methods, procedures and form for delivery
of information concerning any person's family, habits, character, associates, criminal record, business activities and financial
affairs;
(6) Prescribing procedures for the fingerprinting of an
applicant, employee of a licensee, licenseholder, permittee or
registrant, and establishing other methods of identification which
may be necessary in the judgment of the commission to accomplish
effective enforcement of restrictions on access to a gaming vessel
or casino floor, and other restricted areas of a gaming operation;
(7) Prescribing the manner and procedure of all hearings
conducted by the commission or any hearing examiner, including
special rules of evidence applicable thereto and notices thereof;
(8) Prescribing the manner and method of collection of
payments of fees and penalties;
(9) Prescribing, in cooperation with the tax commissioner,
the manner and method in which a licensee shall calculate the
adjusted gross receipts of the license, including a rule regarding
a deduction from gross receipts for uncollectible receivables,
including wagerers' checks received by gaming operations, which
amount shall not be more than two percent;
(10) Defining and limiting the areas of operation, the rules
of authorized games, odds, and devices permitted, and the method of
operation of such games and devices;
(11) Regulating the practice and procedures for negotiable
transactions involving patrons, including, but not limited to, the
use of cash, credit, checks, chips, coupons, vouchers in the
conduct of gaming, including limitations on the circumstances and amounts of such transactions, and the establishment of forms and
procedures for negotiable instrument transactions, redemptions, and
consolidations;
(12) Prescribing grounds and procedures for the revocation or
suspension of operating certificates, licenses, permits and
registrations;
(13) Governing the manufacture, distribution, sale, and
servicing of gaming devices and equipment;
(14) Prescribing for gaming operations the procedures, forms
and methods of management controls, including employee and
supervisory tables of organization and responsibility, and minimum
security standards, including security personnel structure, alarm
and other electrical or visual security measures;
(15) Prescribing the qualifications of, and the conditions
pursuant to which, engineers, accountants, and others shall be
permitted to practice before the commission or to submit materials
on behalf of any applicant or licensee: Provided, That no member
of the Legislature, nor any firm with which said member is
associated, shall be permitted to appear or practice or act in any
capacity whatsoever before the commission or division regarding any
matter whatsoever, nor shall any member of the family of the
Governor or of a member of the Legislature be permitted to so
practice or appear in any capacity whatsoever before the commission
or division regarding any matter whatsoever;
(16) Prescribing minimum procedures for the exercise of
effective control over the internal fiscal affairs of a licensee, including provisions for the safeguarding of assets and revenues,
the recording of cash and evidence of indebtedness, and the
maintenance of reliable records, accounts, and reports of
transactions, operations and events, including reports to the
commission;
(17) Providing for a minimum uniform standard of accounting
methods, procedures and forms; a uniform code of accounts and
accounting classifications; and such other standard operating
procedures, including those controls required by section four,
article eight of this chapter, as may be necessary to assure
consistency, comparability, and effective disclosure of all
financial information, including calculations of percentages of
profit by games, tables, gaming devices and slot machines;
(18) Requiring periodic financial reports and the form
thereof, including an annual audit prepared by a certified public
accountant licensed to do business in this state, attesting to the
financial condition of a licensee and disclosing whether the
accounts, records and control procedures examined are maintained by
the licensee as required by this act and the rules promulgated
hereunder;
(19) Governing the gaming-related advertising of licensees,
their employees and agents, with the view toward assuring that such
advertisements are in no way deceptive: Provided, That such rules:
(A) shall not prohibit the advertisement of a gaming vessel or
casino location, hours of operation, or types of games and other
amenities offered; (B) shall not prohibit the advertisement of information about odds, the number of games, and the size of the
gaming vessel or casino facility; and (C) shall require the words
"Bet with your head, not over it," or some comparable language
approved by the commission, to appear on all billboards, signs, and
other on-site advertising of a gaming vessel or casino operation
and shall require the words "If you or someone you know has a
gambling problem and wants help, call 1-800-XXXXXX," or some
comparable language approved by the commission, which language
shall include the words "gambling problem" and "call 1-800-XXXXXX,"
to appear legibly on all print, billboard, and sign advertising of
a gaming vessel or casino operation; and
(20) Governing the distribution and consumption of alcoholic
beverages on a gaming vessel or in a casino, which legislative
rules shall, insofar as possible, be consistent with chapter sixty
of this code, and shall deviate only insofar as necessary because
of the unique character of the gaming vessel or casino premises and
operations.
§11B-4-9. Emergency rulemaking.
Any rules promulgated by the commission before the first day
of September, one thousand nine hundred ninety-five, may be by
emergency rule.
ARTICLE 5. LICENSURE GENERALLY.
§11B-5-1. Licenses required; nontransferability; privilege.
(a) In addition to all other licenses required by the state
or local governing body as may apply, licenses are required for the
following purposes:
(1) To operate a gaming vessel or casino whenever the person
engages in the business of operating a gaming vessel or casino in
the state;
(2) To supply a gaming vessel or casino whenever the person
engages in the business of supplying gaming supplies in excess of
fifty thousand dollars annually to a gaming vessel or casino in the
state;
(3) To operate a gaming device whenever the individual
engages in the business of operating a gaming device in the state;
(4) To be employed in a capacity in which the individual has
been designated as a key employee by the gaming control commission;
(5) To be an employee, agent, guardian, personal
representative, lender or holder of an indebtedness of a gaming
licensee who, in the opinion of the commission, has the power to
exercise significant influence over the licensee's operation of a
gaming establishment; and
(6) To be employed in any other capacity in which the
individual is required by rules of the gaming control commission to
obtain a license.
(b) The sale, assignment, transfer, or other turnover of a
license, or an interest in a license, by lease, contract,
understanding, or arrangement of any kind, is prohibited without
the approval of the commission, in accordance with rules to be
adopted by the commission. The sale, assignment, transfer, pledge,
or disposition of a security or securities representing five
percent or more of the total outstanding shares issued by a corporation that holds a license is conditional and ineffective
unless approved by the commission.
(c) No person shall have a right of action to obtain any
license, and the issuance thereof is a pure and absolute revocable
privilege and not a right, property or otherwise, under the
constitutions of the United States or this state. No licensee or
licenseholder acquires any vested interest or right therein or
thereunder.
§11B-5-2. General provisions.
(a) A person shall not engage in the business of, attempt to
engage in the business of, or offer to engage in the business of
operating a gaming vessel or casino, supplying a gaming vessel or
casino with gaming supplies, or operating a gaming device, in this
state, unless licensed, permitted or registered by the gaming
control commission and operating in compliance with the provisions
of the gaming control act.
(b) Every person who applies for or holds a license, permit
or registration pursuant to the provisions of the gaming control
act has the affirmative responsibility to meet the following
requirements by clear and convincing evidence:
(1) In the case of a person who is an applicant or holder of
a license to operate a gaming vessel or casino, the person is
required to establish and maintain the applicant's or licensee's
individual qualifications, the personal qualifications of the
applicant's or licensee's officers, employees or agents, and the
qualifications of the gaming vessel or casino in which gaming is to be or is being conducted;
(2) In the case of any other person, other than one who is an
applicant or holder of a license to operate a gaming vessel or
casino, the person is required to establish and maintain his or her
qualifications for the particular license, permit or registration
applied for or held by that person.
(c) Any applicant, licensee, licenseholder, permittee,
registrant, or any other person who is required to be qualified
pursuant to the gaming control act, shall provide all information
required by the act and satisfy all requests for information
pertaining to his or her qualification in the form specified by the
gaming control commission. All applicants, licensees,
licenseholders, permittees and registrants shall waive liability as
to the State of West Virginia, the gaming control commission, the
gaming control section, and each of their instrumentalities,
employees and agents, for any damages resulting from any disclosure
or publication in any manner, other than a willfully unlawful
disclosure or publication, of any material or information acquired
during inquiries, investigations or hearings.
(d) Any applicant, licensee, licenseholder, permittee,
registrant, or any other person who is required to be qualified
pursuant to the gaming control act, shall include on the
application the full name, social security number, residence, date
of birth and other personal identifying information of the
applicant that the commission considers necessary to assure that
the applicant is of good character and reputation and at least twenty-one years old. The application and any supplemental
information required by the commission or section shall be on such
forms as may be required by the commission or section. The
application shall indicate whether the applicant has (1) a record
of conviction of, or plea of guilty or nolo contendere to, a
felony; (2) an active addiction to alcohol or a controlled
substance; or (3) a history of mental illness or repeated acts of
violence. An applicant shall submit pictures, fingerprints, and
descriptions of physical characteristics to the commission in the
manner prescribed on the application forms. All applicants shall
pay the investigation fee required by sections six and seven,
article eleven of this chapter, that is in addition to any
applicable application fee, to defray the costs associated with the
search and classification of fingerprints and other aspects of the
investigation. Upon payment of the fee and before a license is
granted, the gaming control section shall conduct a thorough
background investigation of the applicant for a license. (e)
Notwithstanding any other provision of this section or chapter to
the contrary, any applicant may indicate that the applicant has
been previously licensed in another state, and the commission may
request and rely on the prior investigation and licensure if, in
the opinion of the commission, the prior investigation and
licensure adequately evidences that the applicant is qualified for
licensure.
(f) All applicants, licensees, licenseholders, permittees,
registrants, intermediary companies, and holding companies shall consent to inspections, searches and seizures, and the supplying of
handwriting exemplars, as authorized by the gaming control act and
the legislative rules promulgated hereunder.
(g) As a condition of licensure and notwithstanding the
separate licensure of the facility as a private club pursuant to
article seven, chapter sixty of this code, all applicants,
licensees, licenseholders, permittees and registrants shall consent
to commission members, commission employees or section employees to
search without a warrant any of the licensee or licenseholder's
person, personal property and effects, and gaming premises or other
facilities or premises adjacent to the gaming premises which are
under the control of the licensee and to inspect or investigate for
criminal violations of this chapter or violations of rules adopted
by the commission.
(h) All applicants, licensees, licenseholders, permittees,
registrants, and any other persons who are required to be qualified
pursuant to the gaming control act, have a continuing duty to
provide any assistance or information required by the gaming
control commission, the gaming control section or the tax
commissioner, and to cooperate in any inquiry or investigation
conducted by the section and any inquiry, investigation, or hearing
conducted by the commission or the tax commissioner. If, upon
issuance of a formal request to answer or produce information,
evidence or testimony, any applicant, licensee, licenseholder,
permittee or registrant, or any other person who is qualified or
who seeks to be qualified pursuant to the gaming control act, refuses to comply, the application, license, permit, registration
or qualification of such person may be denied, suspended or revoked
by the commission.
(i) No applicant, licensee, licenseholder, permittee or
registrant shall give or provide, or offer to give or provide,
directly or indirectly, any compensation or reward or any
percentage or share of the money or property played or received
through gaming, except as authorized by the gaming control act, in
consideration for obtaining any license, permit, registration,
authorization or privilege to participate in any way in gaming
operations.
(j) Each applicant who is required to be qualified under the
gaming control act shall agree to be photographed and fingerprinted
for identification and investigation purposes, in accordance with
procedures established by the gaming control commission.
(k) All applicants, licensees, licenseholders, permittees,
registrants, and other persons required to be qualified under the
gaming control act, and all gaming employees and employees of a
gaming supplier licensed pursuant to this chapter, have a duty to
inform the commission or section of any action which they believe
would constitute a violation of the act. No person who so informs
the commission or the section shall be discriminated against by an
applicant, licensee, licenseholder, permittee or registrant because
of the supplying of such information.
(l) Any person who is required to be qualified pursuant to
the gaming control act in order to hold the securities of a gaming vessel or casino licensee or any holding or intermediary company of
a gaming vessel or casino licensee of this chapter may apply for
qualification status prior to the acquisition of any such
securities. The commission may determine to accept such an
application upon a finding that there is a reasonable likelihood
that, if qualified, the applicant will obtain and hold securities
of a licensee sufficient to require qualification. Such applicant
is subject to the provisions of this section and shall pay for the
costs of all investigations and proceedings in relation to the
application unless the applicant provides to the gaming control
commission an agreement with a gaming vessel or casino licensee
which states that the licensee shall pay those costs.
(m) Character references may be required of persons licensed
required to be licensed pursuant to the provisions of this article:
Provided, That the character references shall not be obtained from
persons in the same or similar occupations or professions in other
states.
(n) Each applicant, licensee, licenseholder, permittee or
registrant shall give the commission written notice of any change
of address, and any other relevant material.
(o) Each applicant, licensee, licenseholder, permittee and
registrant under the provisions of the gaming control act shall
cooperate with the gaming control section in the performance of its
duties.
§11B-5-3. Disqualification criteria.
The commission shall deny a license, permit or registration to any applicant who is disqualified on the basis of any of the
following criteria:
(a) Failure of the applicant to prove by clear and convincing
evidence that the applicant is qualified in accordance with the
provisions of the gaming control act;
(b) Failure of the applicant to provide information,
documentation and assurances required by the act or requested by
the commission, or failure of the applicant to reveal any fact
material to qualification, or the supplying of information which is
untrue or misleading as to a material fact pertaining to the
qualification criteria;
(c) The conviction of, or plea of guilty or nolo contendere
by, the applicant, or any person required to be licensed,
permitted, registered or otherwise qualified under the gaming
control act as a condition of licensure or employment, of any
offense in any jurisdiction which would be:
(1) A felony or a misdemeanor punishable for a period of one
year or more;
(2) Any gaming-related misdemeanor; or
(3) Any other offense under West Virginia or federal law
which indicates that licensure of the applicant would be inimical
to the policy of the gaming control act and to gaming operations:
Provided, That the automatic disqualification provisions of this
subsection shall not apply with regard to any conviction or plea of
guilty or nolo contendere which did not occur within the ten-year
period immediately preceding application for licensure and which the applicant demonstrates by clear and convincing evidence does
not justify automatic disqualification pursuant to this subsection
and any conviction or plea of guilty or nolo contendere which has
been the subject of a judicial order of expungement or sealing;
(d) Current prosecution or pending charges in any
jurisdiction of the applicant, or any person required to be
licensed, permitted, registered or otherwise qualified under the
gaming control act as a condition of employment or licensure, for
any of the offenses enumerated in subsection (c) of this section:
Provided, That at the request of the applicant or the person
charged, the commission shall defer decision upon such application
during the pendency of such charge;
(e) The pursuit by the applicant, or any person required to
be licensed, permitted, registered or otherwise qualified under the
gaming control act as a condition of employment or licensure, of
economic gain in an occupational manner or context which is in
violation of the criminal or civil public policies of this state,
if such pursuit creates a reasonable belief that the participation
of such person in gaming operations would be inimical to the
policies of this act or to legalized gaming in this state. For
purposes of this section, occupational manner or context shall be
defined as the systematic planning, administration, management, or
execution of an activity for financial gain;
(f) The identification of the applicant, or any person
required to be licensed, permitted, registered or otherwise
qualified under the gaming control act as a condition of employment or licensure, as a career offender or a member of a career offender
cartel or an associate of a career offender or career offender
cartel in such a manner which creates a reasonable belief that the
association is of such a nature as to be inimical to the policy of
the gaming control act and to gaming operations. For purposes of
this section, career offender shall be defined as any person whose
behavior is pursued in an occupational manner or context for the
purpose of economic gain, utilizing such methods as are deemed
criminal violations of the public policy of this state. A career
offender cartel shall be defined as any group of persons who
operate together as career offenders;
(g) The commission by the applicant, or any person required
to be licensed, permitted, registered or otherwise qualified under
the gaming control act as a condition of employment or licensure,
of any act or acts which would constitute any offense under
subsection (c) of this section, even if such conduct has not been
or may not be prosecuted under the criminal laws of this state or
any other jurisdiction or has been prosecuted under the criminal
laws of this state or any other jurisdiction and such prosecution
has been terminated in a manner other than with a conviction or
plea; and
(h) Contumacious defiance by the applicant, or any person
required to be licensed, permitted, registered or otherwise
qualified under the gaming control act as a condition of employment
or licensure, of the commission, of any legislative investigatory
body, or of any other official investigatory body of any state or of the United States when such body is engaged in the investigation
of crimes relating to gaming, official corruption, or organized
crime activity.
(i) Substantial evidence that the applicant for a license:
(1) Has been suspended from operating a gambling game, gaming
device or gambling operation in another jurisdiction by a board or
commission of that jurisdiction;
(2) Has not demonstrated financial responsibility sufficient
to meet adequately the requirements of the enterprise proposed;
(3) Is not the true owner of the enterprise proposed;
(4) Is not the sole owner, and other persons have ownership
in the enterprise which fact has not been disclosed;
(5) Is a corporation and five percent of the stock of the
corporation is subject to a contract or option to purchase at any
time during the period for which the license is issued unless the
contract or option was disclosed to the commission and the
commission approved the sale or transfer during the period of the
license;
(6) Has knowingly made a false statement of a material fact
to the commission; or
(7) Has been convicted of, or has pled guilty or nolo
contendere to, a felony or other crime involving moral turpitude.
(j) Any grounds for license revocation or reprimand set forth
in section five of this article shall be grounds for denial of an
application.
(k) An incomplete application is cause for denial of a license by the commission.
§11B-5-4. Licenses; display of license.
(a) The commission shall include on each license that the
commission issues:
(1) The type of license;
(2) The identity and address of the licensee or
licenseholder;
(3) The effective date of the license; and
(4) Any other information the commission deems appropriate.
(b) Each licensee or licensed gaming supplier shall display
the license conspicuously in the office or place of business of the
licensee. Each holder of a license to operate a gaming device or
be employed by a gaming vessel shall carry the license on his or
her person and have some indicia of licensure prominently displayed
on his or her person.
(c) Each licensee shall keep a copy of all other required
licenses, permits, inspection certificates, and similar documents
on the premises wherein gaming or other activity which requires a
license under this chapter is being conducted at all times.
§11B-5-5. License revocation and reprimand.
(a) Subject to the hearing provisions of article nine of this
chapter, the commission, by the affirmative vote of a majority of
its members, may reprimand any licensee or licenseholder, or
suspend or revoke a license, if the licensee, or an individual
holding a controlling interest in the licensee, or the
licenseholder:
(1) Fraudulently or deceptively obtained the license;
(2) Fraudulently or deceptively uses a license;
(3) Operates without an operation certificate required by
section one, article eight of this chapter;
(4) Is convicted of, or pled guilty or nolo contendere to, a
felony under the laws of this state, another state, a territory of
the United States or the United States;
(5) Employs a key employee who does not meet the
qualifications for licensure as a key employee, or who is convicted
of, or pled guilty or nolo contendere to, a felony under the laws
of this state, another state, a territory of the United States or
the United States, or who has had a gaming industry license revoked
by this state or any other state;
(6) Fails to perform any act required by section two of this
article; or
(7) Commits any act in violation of or prohibited in section
three of this article, or any other provision of this chapter.
(b) Instead of or in addition to reprimanding a licensee or
licenseholder or suspending or revoking a license, the commission
may impose a civil penalty pursuant to section seventeen, article
ten of this chapter.
The commission may hold a hearing to reprimand a licensee or
licenseholder or suspend or revoke a license at any time subject to
the affirmative vote of a majority of its members and shall hold
such licensing hearings at the written request of the gaming
control section in the division of public safety.
ARTICLE 6. GAMING LICENSES.
§11B-6-1. Classification of vessel gaming locations for purposes
of licensure.
(a) A Class A vessel gaming location is a geographical area
on or contiguous to the Ohio, Kanawha or Monongahela Rivers where
vessel gaming operations may be conducted, and which meets the
following criteria:
(1) The location, or the docking area for the location, is
within the boundaries of a municipality which is a Class I or Class
II municipal corporation as defined in section three, article one,
chapter eight of this code, based on population determined by
reference to the decennial census taken in the year one thousand
nine hundred ninety under the authority of the United States; and
(2) The municipality:
(A) Has a "paid police department" as that term is defined in
section one, article fourteen, chapter eight of this code;
(B) Has a "paid fire department" as that term is defined in
section nine, article fifteen, chapter eight of this code; and
(C) Has within its boundaries a hospital subject to licensure
as such under the provisions of article five-b, chapter sixteen of
this code which is primarily engaged in providing to inpatients, by
or under the supervision of physicians, diagnostic and therapeutic
services for medical diagnosis, treatment and care of injured,
disabled or sick persons;
(b) A Class B vessel gaming location is a geographical area
on or contiguous to the Ohio, Kanawha or Monongahela Rivers where vessel gaming operations may be conducted, and which does not meet
one or more of the criteria necessary to be classified as a Class
A gaming location.
§11B-6-2. Classification of casino locations for purposes of
licensure.
(a) A casino shall only be located at a resort hotel as
defined in subsection (42), section three, article one of this
chapter. A resort hotel may annex additional buildings or
facilities to increase the amount of its meeting, exhibition,
dining, entertainment, sports and kitchen support facilities space:
Provided, That a single building contains at least six hundred
fifty guest rooms. In no event shall the main entrance or only
access to an approved resort hotel be through a casino.
(b) A Class A resort hotel location is a location where
casino gaming operations may be conducted and where the casino
gaming is restricted to overnight guests of the resort hotel, which
resort hotel shall be located on a parcel of real estate in a
county not contiguous to the Ohio, Kanawha or Monongahela Rivers
and which resort hotel shall not be within sixty-five air miles of
a Class A or B vessel gaming location.
(c) A Class B resort hotel location is a location where
casino gaming operations may be conducted, where the casino gaming
is not restricted to overnight guests of the resort hotel, and
where the resort hotel has at least two golf courses and other
substantial recreational facilities and guest amenities, at least
fifty thousand square feet of meeting space, and is situate on a parcel of real estate which:
(1) has a boundary that is within ten miles of a portion of
the border of the state of West Virginia;
(2) is in a county not contiguous to the Ohio, Kanawha or
Monongahela Rivers; and
(3) is not within sixty-five air miles of a Class A or B
vessel gaming location.
§11B-6-3. Local approval of gaming location required.
(a) The gaming control commission may issue a license under
this chapter to allow a gaming vessel to operate in a Class A
gaming location only after the voters of the municipality have
approved the conducting of gaming activities within the
municipality in accordance with the provisions of article twelve of
this chapter: Provided, That the gaming control commission may
issue a license to operate in a Class A gaming location if the
majority of voters residing in the municipality and voting in a
county-wide election held in accordance with section one, article
twelve of this chapter voted to approve gaming activity.
(b) The gaming control commission may issue a license under
this chapter to allow a gaming vessel to operate in a Class B
gaming location only after the voters of the county have approved
the conducting of gaming activities within the county in accordance
with the provisions of article eleven of this chapter.
(c) The gaming control commission may issue a license under
this chapter to allow a casino to operate in a Class A or B casino
gaming location only after the voters of the county have approved the conducting of gaming activities within the county in accordance
with the provisions of article eleven of this chapter.
§11B-6-4. Licenses to conduct gaming.
(a) The commission may issue not more than eight gaming
licenses, authorizing licensees to conduct gaming on gaming
vessels. Each such licensed gaming vessel shall be located in a
Class A or Class B gaming location, as described in subsections (a)
and (b), section one of this article. No more than one license
shall be issued to operate the same gaming vessel, and each gaming
vessel shall have its own license.
(b) The commission may issue not more than of two gaming
licenses authorizing licensees to conduct gaming in casinos. One
such licensed casino shall be located at a Class A casino gaming
location, as set forth in subsection (6), section two of this
article, and one such licensed casino shall be located at a Class
B casino gaming location, as set forth in subsection (c), section
two of this article.
(c) No license shall be issued unless the applicant has
already made or commits to make a capital investment in the gaming
facility of at least one million dollars per one thousand square
feet of area where gaming will be conducted, or, through a
combination of existing and projected capital investment, meets the
minimum investment required by this subsection. The valuation of
an existing or projected capital investment shall be in accordance
with rules to be promulgated by the commission, and any existing
capital investment shall deduct all accumulated depreciation: Provided, That the existing capital investment shall be at least
equal to the assessed value of the real property. An applicant
shall be given a credit against the capital investment requirements
of this subsection in an amount equal to fifty percent of the
replacement cost, as determined by a certified MAI appraisal, of
that applicants existing structures and facilities which were in
place prior to the first day of January, one thousand nine hundred
niney-three, and one hundred percent of the replacement cost of the
land and one hundred percent of the actual cost of any structures,
facilities or improvements constructed after the first day of
January, one thousand nine hundred ninety-three, at the gaming
location.
(d) No person shall be issued or shall be the holder of more
than two licenses to operate a gaming vessel, no person shall be
issued more than one license to operate a casino, and no person
shall be issued more than two licenses. For the purpose of this
subsection a person shall be considered the holder of a gaming
vessel license if such license is issued to such person or if such
license is held by any holding, intermediary or subsidiary company
thereof, or by any officer, director or key employee of such
person, or of any holding, intermediary or subsidiary company
thereof.
(e) Nothing herein shall require the commission to issue the
number of licenses authorized by this section.
(f) A license may only by granted to an applicant upon the
express condition that a licensee shall not, by a lease, contract, understanding, or arrangement of any kind, grant, assign or turn
over to a person the operation of a licensed gaming vessel or
casino: Provided, That the licensee shall not be prohibited from
entering into a management contract approved by the commission.
§11B-6-5. Applicant eligibility for gaming license to conduct
gaming on gaming vessel.
(a) In addition to all other eligibility requirements
required by this article, to be eligible to hold a gaming vessel
license:
(1) The person shall own or have at least a twenty year lease
on a gaming vessel that meets all the qualifications specified in
the rules to be adopted by the commission, or have a contract to
purchase, lease or construct a gaming vessel that meets such
qualifications within thirty months or within such additional time
period as the commission may, upon a showing of good cause
therefor, establish and
(2) The person shall organize into such form or forms of
business association as the commission shall deem necessary or
desirable in the circumstances to carry out the policies of the
gaming control act;
(b) In a case where there is an agreement for persons to
jointly own a gaming vessel or the dock associated therewith, the
agreement shall provide that each party thereto shall be jointly
and severally liable for all acts, omissions and violations of this
act by any party thereto regardless of actual knowledge of such
act, omission or violation.
(c) If the applicant is a corporation, the corporation shall
meet all the requirements set forth in section eight of this
article unless the applicant is a publicly traded corporation
exempted pursuant to the provisions of section nine of this
article.
(d) The provisions of section eight of this article shall
apply with the same force and effect with regard to gaming vessel
license applicants and gaming vessel licensees which have a form of
organization that is other than corporate, to the extent the
application of those provisions is appropriate.
§11B-6-6. Applicant eligibility for gaming license to conduct
casino gaming.
(a) In addition to all other eligibility requirements
required by this article, to be eligible to hold a casino license:
(1) The person shall either own a resort hotel or own or have
a contract to purchase or construct a hotel which in the judgment
of the commission can become a resort hotel within thirty months or
within such additional time period as the commission may, upon a
showing of good cause therefor, establish; and
(2) The person shall organize into such form or forms of
business association as the commission shall deem necessary or
desirable in the circumstances to carry out the policies of the
gaming control act;
(b) In a case where there is an agreement for persons to
jointly own a resort hotel or the land hereunder, the agreement
shall provide that each party thereto shall be jointly and severally liable for all acts, omissions and violations of this act
by any party thereto regardless of actual knowledge of such act,
omission or violation.
(c) If the applicant is a corporation, the corporation shall
meet all the requirements set forth in section eight of this
article unless the applicant is a publicly traded corporation
exempted pursuant to the provisions of section nine of this
article.
(d) The provisions of section eight of this article shall
apply with the same force and effect with regard to casino gaming
license applicants and casino gaming licensees which have a form of
organization that is other than corporate, to the extent the
application of those provisions is appropriate.
§11B-6-7. Requirements for applicants for license to conduct
gaming.
Any applicant for a gaming vessel or casino license shall
produce information, documentation and assurances concerning the
following qualification criteria:
(a) Each applicant shall produce such information,
documentation and assurances concerning financial background and
resources as may be required to establish by clear and convincing
evidence the financial stability, integrity and responsibility of
the applicant, including but not limited to bank references,
business and personal income and disbursement schedules, tax
returns and other reports filed with governmental agencies, and
business and personal accounting and check records and ledgers. In addition, each applicant shall, in writing, authorize the
examination of all bank accounts and records as may be deemed
necessary by the commission or the section.
(b) Each applicant shall produce such information,
documentation and assurances as may be necessary to establish by
clear and convincing evidence the integrity of all financial
backers, investors, mortgagees, bond holders, and holders of
indentures, notes or other evidences of indebtedness, either in
effect or proposed, which bears any relation to the proposal
submitted by the applicant or applicants: Provided, That this
section shall not apply to banking or other licensed lending
institutions exempted from the qualification requirements of
subsection (d), section eight of this article and institutional
investors waived from the qualification requirements of those
subsections pursuant to the provisions of subsection (f), section
eight of this article. Any such banking or licensed lending
institution or institutional investor shall, however, produce for
the commission or the section upon request any document or
information which bears any relation to the proposal submitted by
the applicant or applicants. The integrity of financial sources
shall be judged upon the same standards as the applicant. In
addition, the applicant shall produce whatever information,
documentation or assurances as may be required to establish by
clear and convincing evidence the adequacy of financial resources
both as to the completion of the proposal and the operation of the
gaming vessel or casino.
(c) Each applicant shall produce such information,
documentation and assurances as may be required to establish by
clear and convincing evidence the applicant's good character,
honesty and integrity. Such information shall include, without
limitation, information pertaining to family, habits, character,
reputation, criminal and arrest record, business activities,
financial affairs, and business, professional and personal
associates, covering at least the ten-year period immediately
preceding the filing of the application. Each applicant shall
notify the commission of any civil judgments obtained against any
such applicant pertaining to antitrust or security regulation laws
of the federal government, of this state or of any other state,
jurisdiction, province or country. In addition, each applicant
shall produce letters of reference from law enforcement agencies
having jurisdiction in the applicant's place of residence and
principal place of business, which letters of reference shall
indicate that such law enforcement agencies do not have any
pertinent information concerning the applicant, or if such law
enforcement agency does have information pertaining to the
applicant, shall specify what the information is. If the applicant
has conducted gaming operations in a jurisdiction which permits
such activity, the applicant shall produce letters of reference
from the gaming or casino enforcement or control agency which shall
specify the experiences of such agency with the applicant, his or
her associates, and his or her gaming operation: Provided, That if
no such letters are received within sixty days of request therefor, the applicant may submit a statement under oath that he or she is
or was during the period such activities were conducted in good
standing with such gaming or casino enforcement or control agency.
(d) Each applicant shall produce such information,
documentation and assurances as may be required to establish by
clear and convincing evidence that the applicant has sufficient
business ability and experience in gaming operations as to
establish the likelihood of creation and maintenance of a
successful, efficient gaming vessel or casino operation. The
applicant shall produce the names of all proposed key employees as
they become known and a description of their respective or proposed
responsibilities, and a full description of security systems and
management controls proposed for the gaming vessel or casino, and
related facilities.
(e) Each applicant shall produce such information,
documentation and assurances to establish to the satisfaction of
the commission the suitability of the gaming vessel or casino and
its proposed location will not adversely affect gaming operations
or overall environmental conditions, a market impact study which
analyzes the adequacy of the patron market and the effect of the
proposal on such market and on any existing vessel gaming or casino
facilities licensed under the gaming control act, and an analysis
of the effect of the proposal on the overall environment,
including, without limitation, economic, social, demographic and
competitive conditions as well as the natural resources of the
state of West Virginia.
(f) No applicant shall be eligible to hold a gaming vessel or
casino license unless each person who directly or indirectly holds
any beneficial interest or ownership in the applicant, or who in
the opinion of the commission has the ability to control the
applicant, or whom the commission may consider appropriate for
approval or qualification, would, but for residence, individually
be qualified for approval as a key employee pursuant to the
provisions of the gaming control act.
§11B-6-8. Additional requirements for corporate applicants for
license to conduct gaming.
(a) No corporation shall be eligible to apply for a license
to conduct gaming unless:
(1) The corporation is incorporated in the State of West
Virginia, although such corporation may be a wholly or partially
owned subsidiary of a corporation which is organized pursuant to
the laws of another state of the United States or of a foreign
country;
(2) The corporation will maintain an office of the
corporation in the premises licensed or to be licensed;
(3) The corporation is in compliance with all the
requirements of the laws of the State of West Virginia pertaining
to corporations;
(4) The corporation will maintain a ledger in the principal
office of the corporation in West Virginia which shall at all times
reflect the current ownership of every class of security issued by
the corporation and shall be available for inspection by the commission or the section and authorized agents of the commission
and the section at all reasonable times without notice;
(5) The corporation will maintain all operating accounts
required by the commission in a bank or banks in West Virginia;
(6) The corporation has included among the purposes stated in
its articles of incorporation the conduct of casino gaming or
vessel gaming, and has set forth in the articles of incorporation
all other provisions required by the gaming control act or the
legislative rules promulgated hereunder;
(7) The corporation, if it is not a publicly traded
corporation, has filed with the commission such adopted corporate
charter provisions as may be necessary to establish the right of
prior approval by the commission with regard to transfers of
securities, shares, and other interests in the applicant
corporation, and, if it is a publicly traded corporation, has
provided in its corporate charter that any securities of such
corporation are held subject to the condition that if a holder
thereof is found to be disqualified by the commission pursuant to
the provisions of this act, such holder shall dispose of his or her
interest in the corporation;
(8) The corporation, if it is not a publicly traded
corporation, shall establish to the satisfaction of the commission
that appropriate charter provisions create the absolute right of
such non-publicly traded corporations and companies to repurchase
at the market price or the purchase price, whichever is the lesser,
any security, share or other interest in the corporation in the event that the commission disapproves a transfer in accordance with
the provisions of the gaming control act;
(9) Any publicly traded holding, intermediary, or subsidiary
company of the corporation, whether the corporation is publicly
traded or not, shall contain in its corporate charter the same
provisions required under subdivision (7) of this subsection for a
publicly traded corporation to be eligible to apply for a gaming
vessel or casino license; and
(10) Any non-publicly traded holding, intermediary or
subsidiary company of the corporation, whether the corporation is
publicly traded or not, shall establish to the satisfaction of the
commission that its charter provisions are the same as those
required under subdivisions (7) and (8) of this subsection for a
non-publicly traded corporation to be eligible to apply for a
gaming vessel or casino license.
(b) In addition to other information required by this
article, a corporation applying for a gaming vessel or casino
license shall provide the following information:
(1)(A) The organization, financial structure and nature of
all businesses operated by the corporation;
(B) The names and personal employment and criminal histories
of all officers, directors and key employees of the corporation;
(C) The names of all holding, intermediary and subsidiary
companies of the corporation; and
(D) The organization, financial structure and nature of all
businesses operated by such of its holding, intermediary and subsidiary companies as the commission may require, including names
and personal employment and criminal histories of such officers,
directors and key employees of such corporations and companies as
the commission may require;
(2) The rights and privileges acquired by the holders of
different classes of authorized securities of such corporations and
companies as the commission may require, including the names,
addresses and amounts held by all holders of such securities;
(3) The terms upon which securities have been or are to be
offered;
(4) The terms and conditions of all outstanding loans,
mortgages, trust deeds, pledges or any other indebtedness or
security devices utilized by the corporation;
(5) The extent of the equity security holding in the
corporation of all officers, directors and underwriters, and their
remuneration in the form of salary, wages, fees or otherwise;
(6) Names of persons other than directors and officers who
occupy positions specified by the commission or whose compensation
exceeds an amount determined by the commission, and the amount of
their compensation;
(7) A description of all bonus and profit-sharing
arrangements;
(8) Copies of all management and service contracts; and
(9) A listing of stock options existing or to be created.
(c) If a corporation applying for a gaming vessel or casino
license is, or if a corporation holding a gaming vessel or casino license is to become, a subsidiary, each holding company and each
intermediary company with respect thereto shall, as a condition of
the said subsidiary acquiring or retaining such license, as the
case may be:
(1) Qualify to do business in the State of West Virginia; and
(2) If it is a corporation, register with the commission and
furnish the commission with all the information required of a
corporate licensee as specified in subdivisions (1), (2) and (3),
subsection (a) of this section and such other information as the
commission may require; or
(3) If it is not a corporation, register with the commission
and furnish the commission with such information as the commission
may prescribe.
(d) No corporation shall be eligible to hold a gaming vessel
or casino license unless the following persons would, but for
residence, individually be qualified for approval as a key employee
pursuant to the provisions of the gaming control act:
(1) Each officer of the corporation;
(2) Each director of the corporation;
(3) Each person who directly or indirectly holds any
beneficial interest or ownership of the securities issued by the
corporation;
(4) Any person who in the opinion of the commission has the
ability to control the corporation or elect a majority of the board
of directors of that corporation, other than a banking or other
licensed lending institution which makes a loan or holds a mortgage or other lien acquired in the ordinary course of business;
(5) Each key employee; and
(6) Any lender, underwriter, agent, employee of the
corporation, or other person whom the commission may consider
appropriate for approval or qualification.
(e) No corporation which is a subsidiary shall be eligible to
receive or hold a gaming vessel or casino license unless each
holding and intermediary company with respect thereto:
(1) If it is a corporation, shall comply with the provisions
of subsection (c) of this section as if said holding or
intermediary company were itself applying for a gaming vessel or
casino license: Provided, That the commission may waive compliance
with the provisions of subsection (c) hereof on the part of a
publicly-traded corporation which is a holding company as to any
officer, director, lender, underwriter, agent or employee thereof,
or person directly or indirectly holding a beneficial interest or
ownership of the securities of such corporation, where the
commission is satisfied that such officer, director, lender,
underwriter, agent or employee is not significantly involved in the
activities of the corporate licensee, and in the case of security
holders, does not have the ability to control the publicly-traded
corporation or elect one or more directors thereof; or
(2) If it is not a corporation, shall comply with the
provisions of subsection (e) of this section as if said company
were itself applying for a license.
(f) Notwithstanding the provisions of subsections (d) and (e) of this section, and in the absence of a prima facie showing by
the gaming control section that there is any cause to believe that
the institutional investor may be found unqualified, an
institutional investor holding either (1) under ten percent of the
equity securities of a gaming vessel or casino licensee's holding
or intermediary companies, or (2) debt securities of a gaming
vessel or casino licensee's holding or intermediary companies, or
another subsidiary company of a gaming vessel or casino licensee's
holding or intermediary companies which is related in any way to
the financing of the gaming vessel or casino licensee, where the
securities represent a percentage of the outstanding debt of the
company not exceeding twenty percent, or a percentage of any issue
of the outstanding debt of the company not exceeding fifty percent,
shall be granted a waiver of qualification if such securities are
those of a publicly traded corporation and its holdings of such
securities were purchased for investment purposes only and upon
request by the commission, it files with the commission a certified
statement to the effect that it has no intention of influencing or
affecting the affairs of the issuer, the gaming vessel or casino
licensee or its holding or intermediary companies: Provided, That
it shall be permitted to vote on matters put to the vote of the
outstanding security holders. The commission may grant a waiver of
qualification to an institutional investor holding a higher
percentage of such securities upon a showing of good cause and if
the conditions specified above are met. Any institutional investor
granted a waiver under this subsection which subsequently determines to influence or affect the affairs of the issuer shall
provide not less than thirty days' notice of such intent and shall
file with the commission an application for qualification before
taking any action that may influence or affect the affairs of the
issuer: Provided, That it shall be permitted to vote on matters
put to the vote of the outstanding security holders. If an
institutional investor changes its investment intent, or if the
commission finds reasonable cause to believe that the institutional
investor may be found unqualified, no action other than divestiture
shall be taken by such investor with respect to its security
holdings until there has been compliance with the provisions of the
gaming control act, including the execution of a trust agreement.
The gaming vessel or casino licensee and its relevant holding,
intermediary or subsidiary company shall immediately notify the
commission and the section of any information about, or actions of,
an institutional investor holding its equity or debt securities
where such information or action may impact upon the eligibility of
such institutional investor for a waiver pursuant to this
subsection.
(g) If at any time the commission finds that an institutional
investor holding any security of a holding or intermediary company
of a gaming vessel or casino licensee, or, where relevant, of
another subsidiary company of a holding or intermediary company of
a gaming vessel or casino licensee which is related in any way to
the financing of the gaming vessel or casino licensee, fails to
comply with the terms of subsection (a) of this section, or if at any time the commission finds that, by reason of the extent or
nature of its holdings, an institutional investor is in a position
to exercise such a substantial impact upon the controlling
interests of a licensee that qualification of the institutional
investor is necessary to protect the public interest, the
commission may, in accordance with the provisions of subsections
(b) through (f) of this section or subsections (d) and (e) of
section seven of this article, take any necessary action to protect
the public interest, including requiring such an institutional
investor to be qualified pursuant to the provisions of the gaming
control act.
§11B-6-9. Exemption for publicly traded corporations; penalties
for noncompliance.
(a) The commission may exempt an applicant for a gaming
license that is a publicly traded corporation or is a corporation,
partnership, or other business organization owned or controlled by
a publicly traded corporation from any of the provisions of this
article and article five of this chapter in accordance with rules
to be adopted by the commission for such exemption. The rules may
generally or selectively impose on any publicly traded corporation
any requirement not inconsistent with law which the commission may
deem necessary to the public interest. The rules shall allow the
commission, in its discretion, to make such investigation of the
publicly traded corporation or any of its officers, directors,
security holders or other persons associated therewith as it deems
necessary, shall further require the corporation to meet the requirements set forth in this section, and may make a requirement
that deals with the same subject matter as, but be more stringent
than, the requirements otherwise imposed under this section.
(b) If a corporation, partnership, or other business
organization applying for or holding a state gaming license is or
becomes owned in whole or in part or controlled by a publicly
traded corporation, or if a publicly traded corporation applies for
or holds a state gaming license, the publicly traded corporation
shall:
(1) Maintain a ledger in the principal office of its
subsidiary which is licensed to conduct gaming in this state, which
ledger shall reflect the ownership of record of each outstanding
share of any class of equity security issued by the publicly traded
corporation; may initially consist of a copy of its latest list of
equity security holders and thereafter be maintained by adding a
copy of such material as it regularly receives from the transfer
agent for its equity securities of any class which are outstanding;
and which shall be available for inspection by the commission and
its authorized agents at all reasonable times without notice.
(2) File with the commission and provide such information as
may be required by rule, which information shall include:
(A) The organizational and financial structure and nature of
the business of the publicly traded corporation, including the
names of all officers, directors and any employees actively and
directly engaged in the administration or supervision of the
activities of the gaming licensee, and the names, addresses and number of shares held of record by holders of its equity
securities;
(B) The rights and privileges accorded the holders of
different classes of its authorized securities;
(C) The terms on which its equity securities are proposed to
be, and during the preceding three years have been, offered by the
corporation to the public;
(D) The terms and conditions of all its outstanding loans,
mortgages, trust deeds, pledges or any other indebtedness or
security device, directly relating to the gaming activities of the
gaming licensee;
(E) The extent of the equity security holdings of record in
the gaming licensee of all officers, directors, and underwriters of
the publicly traded corporation, holding any equity interest in
such gaming licensee, and any payment received by any such person
from the publicly traded corporation for each of its three
preceding fiscal years for any reason whatsoever;
(F) Remuneration of forty thousand dollars or more per annum
to persons, other than directors and officers, who are actively and
directly engaged in the administration or supervision of the gaming
activities of the gaming licensee;
(G) Bonus and profit-sharing arrangements of the publicly
traded corporation directly or indirectly relating to the gaming
activities of the gaming licensee;
(H) Management and service contracts of the publicly traded
corporation directly or indirectly relating to the gaming activities of the gaming licensee;
(I) Options existing or from time to time created with
respect of its equity securities;
(J) Balance sheets, certified by independent public
accountants, for at least the three preceding fiscal years, or if
the publicly traded corporation has not been incorporated for a
period of three years, balance sheets from the time of its
incorporation, which balance sheets may be those filed by it with
or furnished by it to the Securities and Exchange Commission;
(K) Profit and loss statements, certified by independent
certified public accountants, for at least the 3 preceding fiscal
years, or, if the publicly traded corporation has not been
incorporated for a period of 3 years, profit and loss statements
from the time of its incorporation. These profit and loss
statements may be those filed by it with or furnished by it to the
Securities and Exchange Commission;
(L) A description of the publicly traded corporation's
affiliated companies and intermediary companies, and the various
gaming licenses and approvals obtained by those entities; and
(M) Any further information within the knowledge or control
of the publicly traded corporation which the commission may deem
necessary or appropriate for the protection of this state, or
licensed gaming, or both.
(c) Each officer, director and employee of a publicly traded
corporation who the commission determines is or is to become
actively and directly engaged in the administration or supervision of, or any other significant involvement with, the gaming
activities of the corporation or any of its affiliated or
intermediary companies shall be found suitable therefor by the
commission in accordance with rules to be adopted by the
commission, which rules shall include the timeframe in which the
person shall apply for such finding and the payment of an
investigation fee.
If any officer, director or employee fails to apply for a
finding of suitability within the timeframe required by the
commission, or is not found suitable by the commission, or the
finding of his suitability is revoked after appropriate hearings
thereon by the commission, the publicly traded corporation shall
immediately remove that officer, director or employee from any
office or position wherein he is actively and directly engaged in
the administration or supervision of, or any other significant
involvement with, the gaming activities of the corporation or any
of its affiliated or intermediary companies. If the commission
suspends, rather than revokes, the finding of suitability of any
officer, director or employee, the publicly traded corporation
shall, immediately and for the duration of the suspension, suspend
that officer, director or employee from performance of any duties
wherein he is actively and directly engaged in administration or
supervision of, or any other significant involvement with, the
gaming activities of the corporation or any of its affiliated or
intermediary companies.
(d) Each person who acquires, directly or indirectly, beneficial ownership of any voting security in a publicly traded
corporation which is registered with the commission may be required
to be found suitable if the commission has reason to believe that
the acquisition of such ownership would otherwise be inconsistent
with the declared policy of this state. Such finding of
suitability shall be in accordance with the rules adopted pursuant
to the provisions of subsection (c) of this section.
Each person who, individually or in association with others,
acquires, directly or indirectly, more than five percent of any
class of voting securities of a publicly traded corporation
registered with the commission, and who is required to report, or
voluntarily reports, such acquisition to the Securities and
Exchange Commission pursuant to section 13(d)(1), 13(g) or 16(a) of
the Securities Exchange Act of 1934, as amended (15 U.S.C. §§
78m(d)(1), 78m(g) and 78p(a), respectively), shall file a copy of
that report, and any amendments thereto, with the commission within
ten days after filing that report with the Securities and Exchange
Commission.
No person found unsuitable by the commission shall hold
directly or indirectly the beneficial ownership of any voting
security of a publicly traded corporation which is registered with
the commission beyond that period of time prescribed by the
commission.
(e) Except as otherwise provided in this section, after a
publicly traded corporation has filed pursuant to this chapter, and
while the publicly traded corporation or any of its affiliated or intermediary companies holds a gaming license, the publicly traded
corporation shall:
(1) Report promptly to the commission in writing any change
in its officers, directors or employees who are actively and
directly engaged in the administration or supervision of the gaming
activities of the corporation or any of its affiliated or
intermediary companies, which officers shall be found suitable in
accordance with the provisions of subsection (d) of this section;
(2) Each year furnish to the commission a profit and loss
statement and a balance sheet of the publicly traded corporation as
of the end of the year, which statements and balance sheets shall
be submitted within one hundred twenty days after the close of the
fiscal year to which they relate and which may be those filed by
the publicly traded corporation with or furnished by it to the
Securities and Exchange Commission, and, upon request of the
commission therefor, a copy of the publicly traded corporation's
federal income tax return within thirty days after the return is
filed with the federal government;
(3) Mail to the commission a copy of any statement, or
amendment thereto, received from a stockholder or group of
stockholders pursuant to section 13(d) of the Securities and
Exchange Act of 1934, as amended, within ten days after receiving
the statement or amendment thereto, and report promptly to the
commission in writing any changes in ownership of record of its
equity securities which indicate that any person has become the
owner of record of more than ten percent of its outstanding equity securities of any class;
(4) Upon request of the commission, furnish to it a copy of
any document filed by the publicly traded corporation with the
Securities and Exchange Commission or with any national or regional
securities exchange, including documents considered to be
confidential in nature, or any document furnished by it to any of
its equity security holders of any class.
(f) If any person exempted under this section does not comply
with the provisions of this chapter and rules promulgated
hereunder, the commission may in its discretion do any of the
following revoke, limit, condition or suspend the license of the
person so exempted or institute civil penalties against the persons
involved, the licensee and the publicly traded corporation, or any
of them, in accordance with the provisions of section seventeen,
article ten of this chapter.
§11B-6-10. Additional requirements for non-corporate applicants
for license to conduct gaming.
Any non-corporate applicant for a gaming vessel or casino
license shall provide such information required by section eight of
this article as may be deemed by the commission as applicable to a
non-corporate applicant.
§11B-6-11. Requirements regarding labor policies; recognition of
labor organizations.
(a) In applying for and being issued a gaming vessel or casino
license, the applicant or licensee thereby agrees to the following
employment requirements:
(1) Ninety percent of all non-management employees shall be
residents of West Virginia prior to the time of application for
employment: Provided, That this requirement may be waived by the
gaming control commission based on clear and convincing evidence
that sufficient labor resources are not available within a
reasonable distance from the gaming premises to allow for
compliance, that the local infrastructure cannot accommodate a
gaming vessel or casino licensee, or such other reason as the
commission, by rule, may grant a waiver of or reduce the residency
requirement percentage;
(2) No employee shall be paid less than forty percent more
than the federal minimum wage, and it shall be a condition of the
issuance and renewal of any license issued to a gaming vessel or
casino operator that the average salary of all employees of that
licensee, exclusive of the salary or wages of officers, directors
and executive officers, shall be at least twenty-five thousand
dollars per year including tips and health benefits.
(3) All non-management employees shall be provided with a
health insurance plan that is comparable to that provided similar
employees in the gaming industry;
(4) All employees shall be licensed or permitted in
accordance with the provisions of this chapter and all rules
promulgated hereunder.
(b) If fifty percent plus one of the eligible employees sign
an authorization card requesting that they be represented by a
labor organization, management shall recognize that organization and commence good faith contract negotiations as provided by
federal law: Provided, That this provision shall not apply to
licensed gaming personnel, including individuals licensed to
operate a gaming device, licensed as a key employee, or otherwise
required by rules of the gaming control commission to be licensed,
nor shall this provision apply to any gaming employee who has
contact with patrons on the gaming floor: Provided, however, That
gaming employees working exclusively in food and beverage services
provided on the gaming floor are eligible employees for the purpose
of this subsection.
§11B-6-12. Selection criteria.
(a) In determining whether to grant a license to operate a
gaming vessel or casino to an applicant, the commission shall
consider:
(1) The character, reputation, experience, and financial
integrity of the applicant and any individual who holds a
controlling interest in the applicant;
(2) The prospective total revenue to be derived by the state
from the conduct of casino gaming;
(3) The good faith affirmative action plan of each applicant
to recruit, train and upgrade minorities, women, handicapped and
the unemployed in all employment classifications;
(4) The good faith effort and action plan of each applicant
to meet the labor requirements set forth in section eleven of this
article;
(5) The good faith effort and action plan of each applicant to design a gaming location accessible to persons with
disabilities;
(6) The good faith effort and action plan of each applicant
to avoid competition with existing businesses;
(7) Any available local redevelopment and community
revitalization plans, charts, or abstracts which would be
indicative of the applicant's intention to promote positive
relations with the local community and act in a manner consistent
with good corporate citizenship;
(8) Whether the applicant has the capability of obtaining and
maintaining adequate liability and casualty insurance;
(9) Whether the applicant has the capability or adequate
capital to maintain a quality gaming vessel or casino for the
duration of the license;
(10) The extent to which the applicant meets or exceeds other
standards for the issuance of a license to operate a casino that
the commission adopts by rule;
(11) The then current distribution of gaming licenses in the
state;
(12) The percentage of voter approval in the specific
location where the applicant proposes to locate the gaming
activity; and
(13) Whether the municipality or county can accommodate the
increased demands for local services created by the gaming
activity;
(b) As to any applicant otherwise eligible and qualified in accordance with the provisions of this article and article five of
this chapter, preferential consideration shall be given to an
applicant who has been recommended for licensure by the local
governing body wherein the gaming vessel or casino will be located.
(c) If the commission does not issue the license to the
applicant to be given preferential treatment pursuant to the
provisions of subsection (b) of this section, the commission shall
notify the applicant and the local governing body of the reasons
therefor.
(d) Any applicant who is licensed to operate an existing
parimutuel racing facility under the jurisdiction of the racing
commission and who is licensed to operate video lottery under the
jurisdiction of the lottery commission shall be granted a license
under this chapter without regard to the other selection criteria
of this section; provided, That the licensed racetrack shall
thereafter comply with all requirements of this chapter and shall
continue to conduct at least 220 days of live racing during each
race meeting. For purposes of this section, "parimutuel racetrack"
means a parimutuel racetrack contiguous to, or located in a
municipality which is contiuguous to, the Ohio river, the Kanawha
river or Monongahela river and which is licensed pursuant to this
chapter and at which gaming may be conducted in any structure in
which parimutuel waging is authorized to be conducted, as that
structure may be enlarged or expanded to accomodate the gaming
operations.
§11B-6-13. Application procedure for gaming vessel or casino license.
All applications for a gaming vessel or casino license shall
be submitted to the commission on the forms prescribed by the
commission therefor within forty-five days of the certification of
the election wherein gaming is approved by the municipality or
county. At the expiration of the forty-five day period, the
commission shall forward copies of all applications received to the
local governing body where the applicant proposes to locate a
gaming vessel or casino. Thereafter, the local governing body may
evaluate the application, contact the applicant and otherwise make
such inquiries regarding the application as the local governing
body may deem appropriate or desirable. Within thirty days of
receipt of any application, the local governing body may make such
recommendation to the commission as it deems appropriate or
desirable, which recommendation shall be considered by the
commission in the selection process as one of the criteria set
forth in section twelve, article six of this chapter. After the
consideration of applications received within forty-five days of
the certification of the election by the county clerk, the
commission shall consider applications as they are received in
accordance with the provisions of this article.
§11B-6-14. Preliminary selection of licensee; investigation of
preliminary licensee; order approving or denying license.
(a) Upon the filing of an application for a gaming vessel or
casino license and such supplemental information as the commission
may require, the commission shall review each application and may make a preliminary selection of the applicant who may be awarded
the vessel gaming or casino license, which preliminary selection
shall be within sixty days of the expiration of the forty-five day
application period and shall be in accordance with the selection
criteria set forth in section twelve of this article and all other
applicable provisions of this article and article five of this
chapter.
(b) Upon the preliminary selection of the applicant who is to
be awarded the license, the commission shall:
(1) Notify all applicants of the preliminary selection;
(2) Require the payment of the investigation fee set forth in
subsection (b), section six, article eleven of this chapter by the
applicant which has been preliminarily selected;
(3) Upon receipt of payment of the investigation fee, request
the gaming control section to conduct an investigation into the
qualification of the applicant; and
(4) Conduct a public hearing concerning the qualification of
the applicant in accordance with rules adopted by the commission.
(c) After such investigation and public hearing, which shall
be completed within one hundred twenty days of the preliminary
selection unless, for good cause shown, the section requests and
the commission grants an extension, the commission may either deny
the application in accordance with subsection (c) of this section
or grant a gaming vessel or casino license to the applicant which
has been preliminarily selected.
(d) In the event that the commission denies the issuance of a license to any applicant which has been preliminarily selected,
the commission shall prepare and file an order denying such
application with the general reasons therefor, and, if requested by
the applicant, shall further prepare and file a statement of the
reasons for the denial, including the specific findings of facts.
(e) Final action of the commission shall be taken within
thirty days after completion of the investigation and public
hearing and the receipt of all information required by the
commission.
(f) If the applicant which is preliminarily selected is
denied the issuance of the license, the commission shall:
(1) Notify all other applicants of the denial of the license
to the applicant which was preliminarily selected;
(2) Proceed as to the remaining applicants in accordance with
the provisions of this section.
(g) The determination by the commission to issue a license is
final, and the decision shall not be reviewed by the commission or
by any court or other tribunal.
§11B-6-15. Issuance of license; duration of initial license;
bond.
(a) If satisfied that an applicant which has been
preliminarily selected is qualified to receive a gaming vessel or
casino license, and upon tender of all license fees and taxes as
required by law, and such bonds as the commission may require for
the faithful performance of all requirements imposed by law, the
commission shall issue a gaming vessel or casino license.
(b) The duration of the initial license for a gaming vessel
shall be for a term of ten years. The duration of the initial
license for a casino shall be for a term of twenty years.
(c) The commission shall fix the amount of the bond or bonds
to be required under this section in such amounts as it may deem
appropriate in a form and the commission approves, by rules of
uniform application. The bonds so furnished may be applied by the
commission to the payment of any unpaid liability of the licensee
under the gaming control act. The bond shall be furnished in cash
or negotiable securities, by a surety bond guaranteed by a
satisfactory guarantor, or by an irrevocable letter of credit
issued by a banking institution of this state acceptable to the
commission. If furnished in cash or negotiable securities, the
principal shall be placed without restriction at the disposal of
the commission: Provided, That any income shall inure to the
benefit of the licensee.
§11B-6-16. Penalty for non-operation of license.
After written notice thereof and in accordance with rules to
be adopted by the commission, any licensee who fails to operate a
gaming vessel or casino after issuance of a license therefor shall
forfeit the bond executed pursuant to section fifteen of this
article, and the license shall revert to the state.
§11B-6-17. Renewal of gaming vessel and casino licenses.
(a) Subject to the power of the commission to deny, revoke,
or suspend licenses, any gaming vessel or casino license in force
shall be renewed by the commission for the next succeeding license period upon proper application for renewal and payment of license
fees and taxes as required by law. The duration of the license for
a renewed gaming vessel license shall be for a term of five years,
and the duration of the license for a renewed casino license shall
be for a term of ten years. A gaming vessel or casino license may
be renewed in accordance with rules to be adopted by the
commission, which rules shall require satisfactory performance of
the licensee of all provisions of this chapter.
(b) Application for renewal shall be filed with the
commission no later than ninety days prior to the expiration of the
current license, and all license fees and taxes as required by law
shall be paid to the commission on or before the date of expiration
of the current license.
(c) Upon renewal of any license the commission shall issue an
appropriate renewal certificate or validating device or sticker
which shall be attached to each gaming vessel or casino license.
(d) Any decision by the commission not to renew the license
shall be final.
ARTICLE 7. LICENSES OTHER THAN GAMING LICENSES.
§11B-7-1. License to supply gaming vessel or casino.
(a) The commission shall issue a license to each applicant
for a license to supply a gaming vessel or casino who meets the
requirements of this section.
(b) Each applicant for a license to supply a gaming vessel or
casino who is an individual, and each individual holding a
controlling interest of an applicant that is not an individual, shall:
(1) Submit an application to the commission on the form that
the commission requires;
(2) Pay to the commission a nonrefundable application fee for
deposit into the state gaming fund in the amount set by rule of the
commission for a license to operate a gaming device;
(3) Meet all the requirements of article five of this
chapter.
(c) A license to supply a gaming vessel or casino authorizes
the licenseholder to engage in the business of supplying a gaming
vessel or casino for the duration of the term of the license.
(d) The licensed gaming supplier shall pay to the commission
an annual license maintenance fee of five thousand dollars.
(e) An applicant for a license to supply gaming devices,
equipment and supplies to a gaming vessel or casino shall
demonstrate that the gaming devices, equipment and supplies that
the applicant manufactures, distributes, supplies, or otherwise
plans to sell or lease to a licensed gaming vessel operator conform
to standards established by rule of the commission and applicable
state law.
(F) A licensed gaming supplier shall submit semi-annually a
list and inventory of all equipment, gaming devices, and supplies
manufactured, distributed or otherwise available for sale to
licensees.
§11B-7-2. License to operate gaming device.
(a) The commission shall issue a license to each applicant for a license to operate a gaming device who meets the requirements
of this section.
(b) Each applicant shall meet the qualifications and
requirements set forth in article five and other provisions of this
chapter, and shall meet such other qualifications or requirements
as the commission establishes by rule.
(c) A license to operate a gaming device authorizes the
licenseholder to engage in the business of operating a gaming
device for the duration of the term of the license.
(d) The licensed gaming device operator shall pay to the
commission an annual license maintenance fee set by the commission.
§11B-7-3. Licensing of key employees.
(a) The commission shall issue a license to each applicant
for a license to be employed as a key employee who meets the
requirements of this section.
(b) Each applicant shall meet the qualifications and
requirements set forth in article five and other provisions of this
chapter, and shall meet such other qualifications or requirements
as the commission establishes by rule.
(c) A license to be a key employee authorizes the
licenseholder to be employed as a key employee for a licensed
gaming vessel or casino for the duration of the term of the
license.
§11B-7-4. Licensing of other gaming employees.
An employee, agent, guardian, personal representative, lender
or holder of an indebtedness of a gaming licensee who, in the opinion of the commission, has the power to exercise significant
influence over the licensee's operation of a gaming establishment,
and any other individual who is required by rules of the gaming
control commission to obtain a license, shall obtain such license
in accordance with the qualifications and requirements set forth in
article five and other provisions of this chapter, and shall meet
such other qualifications or requirements as the commission
establishes by rule.
§11B-7-5. Duration and renewal of licenses other than gaming
licenses.
(a) A license to supply a gaming vessel or casino, a license
to operate a gaming device, and any other gaming employee license
required by this chapter expires on the fifth anniversary of its
effective date of issuance, unless the license is renewed for
additional five-year terms as provided in this section.
(b) At least two months before the license expires, the
commission shall send to the licenseholder, by mail to the last
known address of the licenseholder, a renewal application form and
a notice that states:
(1) The date on which the current license expires;
(2) The date by which the commission shall 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.
(c) Before the license expires, the licenseholder may renew
it for successive additional five-year terms, if the licenseholder:
(1) Otherwise is entitled to be licensed;
(2) Pays to the commission a renewal fee of:
(A) A sum of five thousand dollars for a license to supply a
gaming vessel or casino;
(B) A sum as set by the commission for a license to operate
a gaming device;
(C) A sum as set by the commission for a license to be
employed by an operator of a gaming vessel or casino as a key
employee, which renewal fee may be paid by the employer;
(D) As set by the commission for a license to be employed by
an operator of a gaming vessel or casino in any other capacity for
which the commission determines a license is required, including a
determination that the employee, agent, guardian, personal
representative, lender or holder of an indebtedness of a gaming
licensee, in the opinion of the commission, has the power to
exercise significant influence over the licensee's operation of a
gaming establishment, which renewal fee may be paid by the
employer; and
(3) Submits to the commission:
(A) A renewal application in the form that the commission
requires; and
(B) Satisfactory evidence of compliance with any additional
requirements set by rules of the commission for license renewal.
(d) The commission shall renew the license and issue a
renewal certificate to each licenseholder who meets the
requirements of this section and pursuant to the provisions of this article.
§11B-7-6. Denial of application for license other than gaming
license.
Subject to the hearing provisions of article nine of this
chapter, the commission, by the affirmative vote of a majority of
its members, may deny a license to any applicant for a license to
supply a gaming vessel or casino, a license to operate a gaming
device, a key employee license and any other gaming employees'
licenses required by this chapter, if the applicant or an
individual holding a controlling interest in the applicant is
disqualified for a license under the provisions of section three,
article five of this chapter.
§11B-7-7. Work permits required.
Gaming employees determined by the commission not to require
a license may be required to obtain work permit, which may be
applied for and shall be obtained in accordance with legislative
rules to be adopted by the commission. For those jobs for which
the commission determines a work permit is required, a document
issued by any other governmental authority for any employment other
than gaming is not a valid work permit for the purposes of this
section.
In accordance with legislative rules which may be promulgated
by the commission, the commission may issue a temporary work permit
to any gaming employee required to be permitted, which temporary
permit shall be valid only for a period not to exceed ninety days
from its date of issue and which is not renewable.
In addition to such requirements as may be required of a work
permittee by rule of the commission, a work permittee shall comply
with the general licensure requirements set forth in section two,
article five of this chapter which the commission determines are
applicable to a permittee.
§11B-7-8. Registration required.
Gaming employees determined by the commission to not require
a license or work permit and other persons seeking to conduct
business with the gaming industry or with a licensee may be
required by legislative rule adopted by the commission to register
with the commission, which registration may be applied for and
shall be obtained in accordance with legislative rules to be
promulgated by the commission. For those jobs or businesses for
which the commission determines a registration is required, a
document issued by any other governmental authority for such
business or for any employment other than gaming is not a valid
registration for the purposes of this section.
In accordance with legislative rules which may be promulgated
by the commission, the commission may issue a temporary
registration to any gaming employee or other person required to be
registered, which temporary registration shall be valid only for a
period not to exceed ninety days from its date of issue and which
is not renewable.
In addition to such requirements as may be required of a
registrant by rule of the commission, a registrant shall comply
with the general licensure requirements set forth in section two, article five of this chapter which the commission determines are
applicable to a permittee.
ARTICLE 8. CONDITIONS OF OPERATION.
§11B-8-1. Operation certificate.
(a) Notwithstanding the issuance of a license therefor, no
gaming vessel or casino may be opened or remain open to the public,
and no gaming activity, except for test purposes, may be conducted
therein, unless and until a valid operation certificate has been
issued to the gaming vessel or casino licensee by the commission.
Such certificate shall be issued by the commission upon a finding
that the gaming vessel or casino complies in all respects with the
requirements of the gaming control act and legislative rules
promulgated hereunder, that the gaming vessel or casino licensee
has implemented necessary management controls and security
precautions for the efficient operation of the casino, that
personnel are properly trained and licensed for the efficient
performance of their respective responsibilities, and that the
gaming vessel or casino is prepared in all respects to receive and
entertain the public.
(b) The operation certificate shall include a statement of
compliance with subsection (a) of this section and an itemized list
by category and number of the authorized games permitted in the
particular gaming vessel or casino. Changes in the number of
authorized games to be played shall be made only with the approval
of the commission after review by the commission and the gaming
control section for compliance with the gaming control act.
§11B-8-2. Maintenance of books, records and documents.
It is an express condition of continued operation under this
act that a gaming vessel or casino licensee maintain all books,
records, and documents pertaining to the licensee's operations in
a manner and location within this state approved by the commission.
All such books, records and documents shall be immediately
available for inspection during all hours of operation in
accordance with the rules of the commission and shall be maintained
for such period of time as the commission shall require.
§11B-8-3. Hours of operation.
(a) Unless otherwise authorized by the commission, or by the
county commission or local governing body of a municipality as
provided for in section eight, article twelve of this chapter, a
gaming vessel or casino may not conduct gaming between the hours of
two o'clock a.m. and twelve o'clock noon on Sundays, or between the
hours of two o'clock a.m. and ten o'clock a.m. on all other days:
Provided, That during the hours when gaming is prohibited, the
gaming vessel or casino may operate gaming devices to conduct
programs and demonstrations for the instruction of patrons on the
rules of gaming, so long as no actual wagering by patrons is
permitted.
§11B-8-4. Internal controls.
(a) The commission shall, by legislative rule, develop
minimum standards for such system of internal procedures and
administrative and accounting controls as the commission deems
necessary, which rules shall require a submission to the commission of a description of any change in any procedure or control sixty
days prior to the time the proposed change is to take effect.
If required by rule of the commission, each licensee shall
also submit a description of its system of internal procedures and
administrative and accounting controls for non-gaming operations
and a description of any changes thereto no later than five days
after those operations commence or after any change in those
procedures or controls takes effect.
(b) The commission shall review each submission required by
subsection (a) of this section and shall determine whether it
conforms to the requirements of the gaming control act and the
legislative rules promulgated hereunder and whether the system
submitted provides adequate and effective controls for the
operations of the particular gaming vessel or casino licensee
submitting it. If the commission finds any insufficiencies, it
shall specify the same in writing to the licensee, who shall make
appropriate alterations. When the commission determines a
submission to be adequate in all respects, it shall notify the
licensee of the same. No gaming vessel or casino licensee shall
commence or alter gaming operations unless and until such system of
controls is approved by the commission.
§11B-8-5. Games and gaming equipment.
(a) The gaming control act shall not be construed to permit
any gaming except the conduct of authorized games on such parts of
the gaming premises as are designated and approved by the
commission for the conduct of gaming in accordance with the gaming control act. All gaming shall be conducted according to
legislative rules promulgated by the commission, and all wagers and
pay-offs of winning wagers shall be made according to legislative
rules promulgated by the commission, which shall establish such
limitations as may be necessary to assure the vitality of casino
operations and fair odds to, and maximum participation by, patrons.
(b) Gaming equipment shall not be possessed, maintained or
exhibited by any person on any controlled premises except in
accordance with legislative rules adopted by the commission, and
each licensee shall submit semi-annually a list and inventory of
all gaming devices applicable within the custody and control of the
licensee on the gaming premises.
(c) Legislative rules adopted by the commission may also
provide for and specify the requirements for and procedures to be
followed with regard the following:
(1) A count room and such other secure facilities as may be
required by the commission for the counting and storage of cash,
coins, tokens and checks received in the conduct of gaming and for
the inspection, counting and storage of dice, cards, chips and
other representatives of value;
(2) Gaming equipment and gaming rules;
(3) Signs which inform patrons of the laws and rules that
apply to gaming;
(4) The patronage of gaming employees on gaming vessels or at
casinos;
(5) The acceptance of tips and gratuities; and
(6) Any other rule which enhances vessel gaming or casino
gaming for gaming patrons and for the citizens of this state.
§11B-8-6. Audits.
A licensed gaming vessel or casino operator 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. Such audit shall be in accordance with generally
accepted auditing principles.
§11B-8-7. Licensees' annual reports; penalty for false reports.
(a) Each licensee shall file with the commission an annual
balance sheet and profit and loss statement pertaining to the
licensee's gaming activities in this state, together with a list of
the stockholders or other persons having any beneficial interest in
the gambling activities of each licensee.
(b) A licensee shall keep its books and records so as to
clearly show the total amount of money wagered during each day and
the adjusted gross receipts for the day.
(c) The licensee shall furnish to the commission such reports
and information as the commission may require with respect to its
activities: Provided, That except as specifically provided in
subsection (d) of this section, the following information and data
is confidential and may be revealed in whole or in part only in the
course of the necessary administration of this chapter or upon the
lawful order of a court of competent jurisdiction:
(1) That which pertains to an applicant's criminal record, antecedents and background which have been furnished to or obtained
by the commission, the executive director or the gaming control
section from any source;
(2) That which is required by the commission, the executive
director or the section relative to the finances, earnings or
revenue of any applicant or licensee;
(3) That which is provided to the members of the commission,
the executive director or the section by a governmental agency or
an informer or on the assurance that the information will be held
in confidence and treated as confidential; and
(4) That which is obtained by the commission, the executive
director or the section from a manufacturer, distributor, supplier
or operator relating to the manufacturing of gaming devices.
(d) Notwithstanding the provisions of subsection (c) of this
section, the commission, the executive director or the section may
reveal information and data described in that subsection to an
authorized agent of any agency of the United States government, any
state, or any political subdivision of this state pursuant to
legislative rules adopted by the commission.
(e) The books and records kept by a licensee as provided by
this section are public records and examination, and publication
and dissemination of the books and records are governed by the
provisions of article one, chapter twenty-nine-b of this code.
ARTICLE 9. HEARINGS; APPEAL OF COMMISSION ACTION.
§11B-9-1. Opportunity for hearing.
Except as otherwise provided by this chapter, any person adversely affected by an action of the commission shall be given an
opportunity for a hearing before the commission and may be
represented at the hearing by counsel.
§11B-9-2. Conduct of hearings; rules of evidence.
The commission shall give notice and hold the hearing in
accordance with state law, such notice to be given to the person by
certified mail to the last known address of the person at least
thirty days before the hearing. The rules of evidence shall not
apply.
§11B-9-3. Appeal.
Except where the decision of the commission is deemed to be
final pursuant to the provisions of this chapter, any person
aggrieved by a final decision of the commission may appeal the
decision in the Circuit Court of Kanawha County.
ARTICLE 10. PROHIBITED ACTIVITIES; SANCTIONS AND PENALTIES.
§11B-10-1. Penalties for false statements on applications.
Any person who knowingly makes a false statement on an
application is guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in jail not more than twelve months, or
fined not more than twenty-five thousand dollars, or both:
Provided, That in the case of a person other than a natural person,
the amount of a fine may be not more than one hundred thousand
dollars.
§11B-10-2. Penalties for willful evasion of payment of license
fees, other acts and omissions.
Any person who willfully fails to report, pay or truthfully account for and pay over any license fee or tax imposed by the
provisions of the gaming control act, or willfully attempts in any
manner to evade or defeat any such license fee, tax, or payment
thereof, is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined in jail not more than twelve months, or fined not
more than twenty-five thousand dollars, or both: Provided, That in
the case of a person other than a natural person, the amount of a
fine may be not more than one hundred thousand dollars. In
addition, the person be is liable for a penalty of three times the
amount of the license fee evaded and not paid, collected or paid
over, which penalty shall be assessed by the commission and
collected in accordance with the provisions of the gaming control
act.
§11B-10-3. Unlicensed gambling games unlawful; penalties.
(a) Any person who violates the licensing provisions of
articles five, six or seven of this chapter, or permits any
gambling game, slot machine or device to be conducted, operated,
dealt or carried on in any gaming vessel or casino by a person
other than a person licensed for such purposes pursuant to the
gaming control act is guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in jail not more than twelve months, or
fined not more than twenty-five thousand dollars, or both:
Provided, That in the case of a person other than a natural person,
the amount of a fine may be not more than one hundred thousand
dollars.
(b) Any licensee who places games or slot machines into play or displays such games or slot machines in a gaming vessel or
casino without authority of the commission to do so is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail not more than twelve months, or fined not more than twenty-
five thousand dollars, or both: Provided, That in the case of a
person other than a natural person, the amount of a fine may be not
more than one hundred thousand dollars.
(c) Any person who operates, carries on or exposes for play
any gambling game, gaming device or slot machine after the
applicable license has expired and prior to the actual renewal
thereof is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined in jail not more than twelve months, or fined not
more than twenty-five thousand dollars, or both: Provided, That in
the case of a person other than a natural person, the amount of a
fine may be not more than one hundred thousand dollars.
§11B-10-4. Swindling and cheating; penalties.
(a) Except as provided in subsection (b) of this section, any
person who by any trick or sleight of hand performance, or by a
fraud or fraudulent scheme, cards, dice or device, for himself or
herself or for another wins or attempts to win money or property or
a representative of either or reduces a losing wager or attempts to
reduce a losing wager in connection with vessel gaming or casino
gaming is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined in jail not more than twelve months, or fined not
more than twenty-five thousand dollars, or both.
(b) Any person who by any trick or sleight of hand performance, or by fraud or fraudulent scheme, cards, dice or
device, for himself or herself or for another wins or attempts to
win money or property or a representative of either or reduces a
losing wager or attempts to reduce a losing wager in connection
with vessel gaming or casino gaming, if the value of such money or
property or representative of either is twenty-five dollars or
less, is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined in jail not more than six months, or fined not
more than one thousand dollars, or both.
§11B-10-5. Use of device to obtain advantage at gambling;
penalties.
(a) A person on a licensed gaming vessel or in a casino shall
not use, nor possess with the intent to use, any device to assist
in:
(1) Projecting the outcome of a gambling game;
(2) Keeping track of the cards played or in play;
(3) Analyzing the probability of the occurrence of an event
relating to any gambling game;
(4) Analyzing the strategy for playing or betting to be used
in the gambling game;
(5) Defrauding, cheating, or otherwise bringing into risk the
legitimate operation, integrity, or outcome of the vessel gaming or
casino operations.
(b) A person who, in playing a game in a licensed gaming
vessel or casino, uses, or assists another in the use of, an
electronic, electrical or mechanical device which is designed, constructed, or programmed specifically for use in obtaining an
advantage at playing any gambling game, including those listed in
subsection (a), is guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in jail not more than six months, or
fined not more than one thousand dollars, or both.
§11B-10-6. Unlawful use of bogus chips or gaming billets, marked
cards, dice, cheating devices, unlawful coins;
penalties.
(a) It shall be unlawful for any person playing any licensed
gambling game:
(1) Knowingly to use bogus or counterfeit chips or gaming
billets, or knowingly to substitute and use in any such game cards
or dice that have been marked, loaded or tampered with; or
(2) Knowingly to use or possess any cheating device with
intent to cheat or defraud.
(b) It shall be unlawful for any person playing or using any
slot machine:
(1) Knowingly to use other than a lawful coin or legal tender
of the United States of America, or to use a coin not of the same
denomination as the coin intended to be used in such slot machine,
except that in the playing of any slot machine or similar gaming
device, it shall be lawful for any person to use gaming billets,
tokens or similar objects therein which are approved by the
commission; or
(2) To use any cheating or thieving device, including but not
limited to tools, drills, wires, coins or tokens attached to strings or wires, or electronic or magnetic devices, to facilitate
the alignment of any winning combination.
(c) It shall be unlawful for any person knowingly to possess
or use while on any controlled premises, any cheating or thieving
device, including but not limited to tools, wires, drills, coins
attached to strings or wires or electronic or magnetic devices to
facilitate removing from any slot machine any money or contents
thereof, except that a duly authorized employee of a licensed
gaming vessel or casino may possess and use any of the foregoing
only in furtherance of his or her employment.
(d) It shall be unlawful for any person knowingly to possess
or use while on any controlled premises any key or device designed
for the purpose of or suitable for opening or entering any slot
machine or similar gaming device or drop box, except that a duly
authorized employee of a licensed gaming vessel or casino, or a
commission employee may possess and use any of the foregoing only
in furtherance of his or her employment.
(e) Any person who violates this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail not more than twelve months, or fined not more than twenty-
five thousand dollars, or both: Provided, That in the case of a
person other than a natural person, the amount of a fine may be not
more than one hundred thousand dollars.
§11B-10-7. Cheating games and devices in a licensed gaming vessel
or casino; penalties.
(a) It shall be unlawful:
(1) Knowingly to conduct, carry on, operate, deal or allow to
be conducted, carried on, operated or dealt any cheating or
thieving game or device; or
(2) Knowingly to deal, conduct, carry on, operate or expose
for play any game or games played with cards, dice or any
mechanical device, or any combination of games or devices, which
have in any manner been marked or tampered with, or placed in a
condition, or operated in a manner, the result of which tends to
deceive the public or tends to alter the normal random selection of
characteristics or the normal chance of the game which could
determine or alter the result of the game.
(b) It shall be unlawful knowingly to use or possess any
marked cards, loaded dice, plugged or tampered with machines or
devices.
(c) Any person who violates this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail not more than twelve months, or fined not more than twenty-
five thousand dollars, or both: Provided, That in the case of a
person other than a natural person, the amount of a fine may be not
more than one hundred thousand dollars.
§11B-10-8. Unlawful possession of device, equipment or other
material illegally manufactured, distributed, sold
or serviced.
Any person who possesses any device, equipment or material
which he knows has been manufactured, distributed, sold, tampered
with or serviced in violation of the provisions of this act is guilty of a misdemeanor, and, upon conviction thereof, shall be
confined in jail not more than twelve months, or fined not more
than twenty-five thousand dollars, or both: Provided, That in the
case of a person other than a natural person, the amount of a fine
may be not more than one hundred thousand dollars.
§11B-10-9. Skimming of gaming proceeds.
(a) The crime of skimming of gaming proceeds is the
intentional excluding of or the taking any action in an attempt to
exclude any thing or its value from the deposit, counting, section,
or computation of gross receipts from gaming operations or
activities, or adjusted gross receipts, or other amounts due the
state pursuant to the provisions of this chapter.
(b) Whoever commits the crime of skimming of gaming proceeds
when the amount skimmed, or to be skimmed, is less than one
thousand dollars is guilty of a felony, and, upon conviction
thereof, shall be imprisoned in the penitentiary for not more than
five years, or shall be fined not more than five thousand dollars,
or both: Provided, That in the case of a person other than a
natural person, the amount of a fine may be not more than one
hundred thousand dollars. In addition, the person is liable for a
penalty of three times the amount skimmed or to be skimmed, which
penalty shall be assessed by the commission and collected in
accordance with the provisions of the gaming control act.
(c) Whoever commits the crime of skimming of gaming proceeds
when the amount skimmed, or to be skimmed, is one thousand dollars
or more is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more
than twenty years, or shall be fined not more than ten thousand
dollars: Provided, That in the case of a person other than a
natural person, the amount of a fine may be not more than one
hundred thousand dollars. In addition, the person is liable for a
penalty of three times the amount skimmed or to be skimmed, which
penalty shall be assessed by the commission and collected in
accordance with the provisions of the gaming control act.
§11B-10-10. Posting of patronage prohibitions and penalties
required.
Each gaming vessel licensee or casino licensee shall post
notice of all prohibitions that may affect patrons or their conduct
and shall further post the penalties for violation thereof, such
posting to be in a manner determined by the commission.
§11B-10-11. Employment without license, permit or registration;
penalties.
(a) Any person who, without obtaining the requisite license,
permit or registration as provided in this act, works or is
employed in a position whose duties would require licensing or
registration under the provisions of the gaming control act is
guilty of a misdemeanor, and, upon conviction thereof, shall be
confined in jail not more than twelve months, or fined not more
than ten thousand dollars, or both: Provided, That in the case of
a person other than a natural person, the amount of a fine may be
not more than fifty thousand dollars.
(b) No applicant, licensee, licenseholder, permittee or registrant shall employ or offer to employ any person who is
prohibited from accepting employment from a licensee or applicant
or any holding or intermediary company. An applicant, licensee,
licenseholder, permittee or registrant who violates the provisions
of this subsection is guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in jail not more than twelve months, or
fined not more than twenty-five thousand dollars, or both:
Provided, That in the case of a person other than a natural person,
the amount of a fine may be not more than one hundred thousand
dollars.
(c) Any person who, after notice thereof, employs or
continues to employ an individual not duly licensed or registered
under the provisions of this act in a position whose duties require
a license or registration under the provisions of this act is
guilty of a misdemeanor, and, upon conviction thereof, shall be
confined in jail not more than twelve months, or fined not more
than ten thousand dollars, or both: Provided, That in the case of
a person other than a natural person, the amount of a fine may be
not more than fifty thousand dollars.
§11B-10-12. Unauthorized representation; penalties.
(a) Unless authorized to engage in the business operating a
gaming vessel or casino, supplying a gaming vessel or casino, or
operating a gaming device under this chapter, a person may not
represent to the public by use of the title "licensed gaming vessel
operator," "licensed casino operator," "licensed gaming vessel and
casino supplier," or "licensed gaming device operator," by other title, by description of services or otherwise, that the person is
authorized to engage in the business of operating a gaming device,
operating a gaming vessel or casino, or supplying a gaming vessel
or casino.
(b) A person who violates the provisions of subsection (a) of
this section is guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in jail not more than twelve months, or
fined not more than twenty-five thousand dollars, or both:
Provided, That in the case of a person other than a natural person,
the amount of a fine may be not more than one hundred thousand
dollars.
§11B-10-13. 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 was used for
any of the following:
(1) In exchange for a bribe intended to affect the outcome of
a gambling game; or
(2) In exchange for or to facilitate a violation of this
chapter.
(b) All moneys, coin and currency found in close proximity of
wagers, or of records of wagers, are presumed forfeited. The
burden of proof is upon the claimant of the property to rebut this
presumption.
(c) Subsections (a) and (b) do not apply if the act or omission which would give rise to the forfeiture was committed or
omitted without the owner's knowledge or consent.
§11B-10-14. Activities prohibited by public officials.
(a) No elected public official shall engage in any business
activity with a licensee except as a patron. As used in this
subsection, business activity shall specifically include but is not
limited to contracts:
(1) For the sale or purchase of goods, merchandise, and
services;
(2) To provide or receive legal services, advertising, public
relations, or any other business or personal service;
(3) For the listing, purchase or sale of real property or
options or rights relating thereto;
(4) Modifying ownership or possessor interests in stocks,
bonds, securities, or any financial instruments.
(b) No member of the Legislature, nor any firm with which
said member is associated, shall be permitted to appear or practice
or act in any capacity whatsoever before the commission or division
regarding any matter whatsoever, nor shall any member of the family
of the Governor or of a member of the Legislature be permitted to
so practice or appear in any capacity whatsoever before the
commission or section regarding any matter whatsoever.
§11B-10-15. Prohibition of political contributions.
Any person who has been issued a license pursuant to the
provisions of this chapter, or any person who is an applicant for
such license, who pays, gives or lends, or authorizes to be paid, given or lent, any money or other thing of value to any candidate,
financial agent or political committee or other person, for the
payment of any primary, general or other election expenses incurred
or to be incurred in connection with an election in this state, is
guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than one year nor more than
ten years, or, in the discretion of the court, be confined in jail
nor more than one year and shall be fined not more than five
thousand dollars. In the case of a person other than a natural
person, where an offense under this section is neither punishable
by imprisonment nor confinement, a fine may be imposed in an amount
not to exceed fifty thousand dollars. Notwithstanding the above,
this section shall not prohibit political contributions by natural
persons which are otherwise permissible under West Virginia law.
§11B-10-16. Gaming by certain persons prohibited; penalties;
defenses.
(a) An individual may not participate in vessel or casino
gaming:
(1) If the individual is intoxicated; or
(2) If the individual is determined by the licensed gaming
vessel or casino operator to be unruly, disruptive, or otherwise
interfering with vessel or casino gaming.
(b) No person under the age of twenty-one years shall enter,
or wager in, a gaming vessel or a licensed casino: Provided, That
such a person may enter a casino by way of passage to another room.
The provisions of this section do not apply to a person who is licensed or registered under the provisions of the gaming control
act, and who enters a gaming vessel or casino in the regular course
of the person's permitted activities.
(c) Subject to the exceptions and defenses provided in this
subsection, any licensee or employee of a gaming vessel or casino
who allows a person under the age of twenty-one years to remain in
or wager in a gaming vessel or casino is guilty of a misdemeanor,
and, upon conviction thereof, shall be confined in jail not more
than twelve months, or fined not more than twenty-five thousand
dollars, or both: Provided, That in the case of a person other
than a natural person, the amount of a fine may be not more than
one hundred thousand dollars.
The establishment of all of the following facts by a licensee
or employee allowing any such underage person to remain shall
constitute a defense to any prosecution therefor:
(1) That the underage person falsely represented in writing
that he or she was twenty-one years of age or older;
(2) That the appearance of the underage person was such that
an ordinary prudent person would believe him or her to be twenty-
one years of age or older; and
(3) That the admission was made in good faith, relying upon
such written representation and appearance, and in the reasonable
belief that the underage person was actually twenty-one years of
age or older.
§11B-10-17. Civil penalties; determining appropriate sanctions.
(a) After a hearing, the commission may impose on a person who violates a provision of this article or chapter a civil penalty
not to exceed five thousand dollars for each violation.
(b) In considering appropriate sanctions, the division may
consider the following:
(1) The risk to the public and the integrity of gaming
operations created by the conduct;
(2) The seriousness of the conduct and whether it was
purposeful and with knowledge that the conduct was in violation of
the provisions of this chapter;
(3) Any justification, excuse or defense for the conduct;
(4) The history with respect to gaming activity of the person
involved;
(5) The corrective action taken by the person involved to
prevent similar misconduct for occurring in the future; and
(6) In the case of a fine or civil penalty, the amount of the
fine in relation to the severity of the misconduct and the
financial means of the person involved.
§11B-10-18. Authority of gaming licensee and agents to detain or
question persons suspected of cheating; immunity
from liability; posted notice required.
(a) Any licensee or its officers, employees or agents may
question any individual in a gaming vessel or casino reasonably
suspected of violating any of the provisions of sections three
through seven of this article. No licensee or its officers,
employees or agents shall be criminally or civilly liable by reason
of any such questioning.
(b) Any licensee or its officers, employees or agents who
shall have probable cause for believing there has been a violation
of sections three through seven of this article in a gaming vessel
or casino by any person may refuse to permit such person to
continue gaming or wagering or may take such person into custody
and detain him in the establishment in a reasonable manner for a
reasonable length of time, for the purpose of notifying law
enforcement or commission authorities. Such refusal or taking into
custody and detention shall not render such licensee or its
officers, employees or agents criminally or civilly liable for
false arrest, false imprisonment, slander or unlawful detention,
unless such refusal or such taking into custody or detention is
unreasonable under all of the circumstances.
(c) No licensee or officers, employees or agents of the
licensee shall be entitled to any immunity from civil or criminal
liability provided in this section unless there is displayed in a
conspicuous manner in the gaming vessel or casino a notice in bold
face type clearly legible and in substantially this form:
"Any gaming licensee or officer, employee or agent thereof who
has probable cause for believing that any person is violating any
of the provisions of the West Virginia Gaming Control Act
prohibiting cheating or swindling in gaming may detain such person
in the establishment for the purpose of notifying a police officer
or Gaming Control Commission authorities."
§11B-10-19. Continuing offenses.
(a) A violation of any of the provisions of the gaming control act which is an offense of a continuing nature shall be
deemed to be a separate offense on each day during which it occurs.
Nothing herein shall be deemed to preclude the commission of
multiple violations within a day of those provisions of the gaming
control act which establish offenses consisting of separate and
distinct acts.
(b) Any person who aids, abets, counsels, commands, induces,
procures or causes another to violate a provision of the gaming
control act is punishable as a principal and subject to all
sanctions and penalties, both civil and criminal, provided by the
gaming control act.
ARTICLE 11. SPECIAL FUNDS; FEES AND TAXES.
§11B-11-1. Gaming revenue fund.
There is hereby created a special fund in the state treasury
which shall be designated and known as the "gaming revenue fund".
The fund shall consist of all appropriations to the fund, all
interest earned from investment of the fund, and any gifts, grants
or contributions received by the fund. All revenues received from
the imposition of fees and taxes imposed in accordance with the
provisions of this chapter and all moneys paid as sanctions or as
a penalty for the violation of any provision of this chapter shall
be deposited with the state treasurer, placed in the gaming revenue
fund, and distributed in accordance with section ten of this
article.
§11B-11-2. State gaming control fund.
There is hereby created a special fund in the state treasury which shall be designated and known as "the state gaming control
fund" which shall receive and consist of such amounts from the
gaming revenue fund created pursuant to section one of this article
as may be allocated and appropriated by the legislature. Moneys
allocated and appropriated to the state gaming control fund may be
expended by the commission and its executive director for the
administration and the implementation of the provisions of this act
and the rules promulgated hereunder by the commission. Such
expenditures shall include costs incurred by the gaming section
created pursuant to article eleven, chapter fifteen of this code.
§11B-11-3. Tax on adjusted gross receipts.
A tax is hereby imposed which is nineteen and one-half percent
on the adjusted gross receipts received by a licensed gaming vessel
or casino operator, which is in addition to all other applicable
state and local taxes: Provided, That such tax on adjusted gross
receipts shall be in lieu of any net corporate income taxes imposed
in accordance with article twenty-four, chapter eleven of this code
and shall be a credit against any business and occupation tax set
forth in article thirteen, chapter eleven of this code: Provided,
however, That no county or municipality or any other political
subdivision of this state shall be authorized to levy or impose any
license, income, excise, special or franchise tax on or with
respect to the gross receipts or the adjusted gross receipts of any
licensee that is in addition to any county or municipal tax levied
prior to the effective date of this section: Provided further,
That no county or municipality or other political subdivision may receive from a licensee a percentage of adjusted gross receipts
that is in addition to the amount imposed by this section unless
such additional amount is derived from the imposition of a business
and occupation tax in effect prior to the effective date of this
section.
The tax on adjusted gross receipts shall be distributed as
follows:
(1) Fifteen percent of the adjusted gross receipts received
by a licensed gaming vessel or casino operator shall be distributed
as set forth in subsection (c), section ten of this article.
(2) Four and one-half percent and shall be distributed as set
forth in subsection (f), section ten of this article.
§11B-11-4. Sales tax exemption.
There shall be no imposition of any consumer sales tax as set
forth in article fifteen, chapter eleven of this code for the
purchase of chips, tokens or electronic cards by patrons of a
gaming vessel or casino, such transaction to be exempted from such
consumer sales tax and not deemed a sale for the purpose of
imposition of the consumer sales tax in accordance with that
article.
§11B-11-5. Collection of taxes.
The state tax commissioner shall administer and collect the
taxes imposed by this article and enforce the provisions of this
article with regard thereto. The tax commissioner is hereby
authorized to adopt in accordance with chapter twenty-nine-a of
this code any rule necessary to the administration and collection of such taxes and the enforcement of the provisions of this
article. Any rules promulgated pursuant to this section prior to
the first day of September, one thousand nine hundred ninety-five,
may be by emergency rule.
In addition to such other enforcement powers provided the tax
commissioner for the collection of taxes, at any time within five
years after any amount of taxes, or penalties or interest thereon,
required to be collected pursuant to the provisions of the gaming
control act shall become due and payable, the tax commissioner may
bring a civil action in the courts of this state or any other state
or of the United States, in the name of the state of West Virginia,
to collect the amount delinquent, together with penalties and
interest. An action may be brought whether or not the person owing
the amount is at such time an applicant, licensee, licenseholder,
permittee or registrant pursuant to the provisions of the gaming
control act. If such action is brought in this state, a writ of
attachment may be issued and no bond or affidavit prior to the
issuance thereof is required. In all actions in this state, the
records of the tax commissioner are prima facie evidence of the
determination of the tax or the amount of the delinquency.
§11B-11-6. Gaming vessel and casino license fees.
(a) The application fee for the issuance of a gaming vessel
or casino license is fifty thousand dollars, which is a
nonrefundable fee required to be paid with each application for an
initial license.
The fee for the issuance of an initial gaming vessel or casino license is fifty thousand dollars, which is a nonrefundable fee
required to be paid prior to the issuance of the initial license.
The fee for the renewal of a gaming vessel or casino license
is fifty thousand dollars, which is a nonrefundable fee required to
be paid prior to the renewal of the license.
The fee for the application, issuance or renewal of a gaming
vessel or casino license subsequent to the renewal cycle of the
licenses initially issued pursuant to the provisions of this
section shall be in such amount as may be required by rules adopted
by the gaming commission.
(b) Any applicant temporarily selected for the issuance of a
gaming vessel or casino license shall post a deposit of fifty
thousand dollars for the cost of investigation and consideration of
the license application. If the costs of the investigation of an
applicant are greater than fifty thousand dollars, the gaming
control section shall show cause for the additional cost. If the
commission approves the additional cost, the applicant shall pay
the additional costs as required by the commission: Provided, That
the total investigation fee shall not exceed two hundred fifty
thousand dollars. If the costs of the investigation of an
applicant are less than any amounts paid to the commission for
investigation, the commission shall refund the difference.
§11B-11-7. Fees for other than gaming vessel or casino licenses.
The fee for the application, issuance or renewal of any
license required by this chapter, other than a gaming vessel or
casino license, and the fee for the investigation of any applicant therefor, shall be in such amount as may be required by rules
adopted by the gaming commission.
§11B-11-8. Work permit fees.
The fee for the application, issuance or renewal of any work
permit required by section seven, article seven of this chapter,
and the fee for the investigation of any applicant therefor, shall
be in such amount as may be required by rules adopted by the gaming
commission.
§11B-11-9. Registration fees.
The fee for the application, issuance or renewal of any
registration required by section eight, article seven of this
chapter, and the fee for any investigation of any applicant
therefor, shall be in such amount as may be required by rules
adopted by the gaming commission.
§11B-11-10. Distribution of moneys in gaming revenue fund.
(a) The revenue in the gaming revenue fund shall be disbursed
in the manner herein provided for the purposes stated herein and
shall not be treated by the auditor and treasurer as part of the
general revenue of the state. The authority to disburse shall
include the authority to transfer moneys deposited in the fund to
counties and municipalities in such amounts as are set forth in
this section.
(b) All fees and penalties required or authorized by this
section and collected by the commission shall be paid into the
gaming revenue fund and shall be available for allocation and
appropriation to the state gaming control fund created pursuant to section two of this article. The Legislature may provide such
additional allocation and appropriation to the state gaming control
fund from the gaming revenue fund as is deemed necessary to
administer the provisions of the gaming control act.
(c) Fifteen percent of the adjusted gross receipts of each
licensed gaming vessel shall be paid into the gaming revenue fund
created pursuant to section one of this article and shall be
distributed as follows:
(1) That percentage which is determined by the Legislature to
be necessary for the administration of the gaming control act shall
be allocated and appropriated to the gaming control fund pursuant
to the provisions of subsection (b) of this section;
(2) Seventy-five percent of the remaining balance shall be
allocated by the Legislature for appropriation to worker's
compensation fund until such time as the legislature determines,
based on actuarial information and current audits, that the fund
has no unfunded liability;
(3) Twenty percent of the remaining balance shall be
proportionally divided among the counties and municipalities of
this state, using a formula based upon the population of each
municipality and the population of each county living outside any
municipality, such population to be determined according to the
most recent decennial census conducted by the bureau of the census
of the United States department of commerce: Provided, That any
county or municipality receiving moneys pursuant to the provisions
of subsection (f) of this section shall be excluded from the formula, and the twenty percent shall be proportionally divided
only among those counties wherein a gaming vessel or casino is not
located;
(4) Four and one-half percent shall be allocated and
appropriated by the Legislature to the judges' retirement fund
created pursuant to section two, article nine, chapter fifty-one of
this code; the policemen's pension and relief fund created pursuant
to section sixteen, article twenty-two, chapter eight; and death,
disability and retirement fund for the benefit of members of the
division of public safety pursuant to section twenty-six, article
two, chapter fifteen of this code until such time as the
legislature determines, based on actuarial information and current
audits, that these retirement funds have no unfunded liability.
The Legislature shall determine the amount to be allocated and
appropriated to each retirement fund; and
(5) One-half of one percent shall be allocated to the state
department of human resources to be used for establishment of
programs for the care and rehabilitation of persons identified as
exhibiting addictive behavior.
(d) At such time as the Legislature determines that the
amounts set forth in subdivisions (1) and (3) of subsection (c) of
this section are no longer required to meet the unfunded liability
of the workers' compensation fund or any of the retirement funds,
the Legislature may allocate and appropriate such amounts as the
Legislature determines are necessary to meet any other unfunded
liability of this state.
(e) In the event fifteen percent of any licensed gaming
vessel's or Class A casino's adjusted gross receipts is less than
six million dollars for the tax year, reduced proportionately as to
any gaming vessel or Class A casino licensed for less than the full
tax year, or fifteen percent of the adjusted gross receipts of the
Class B casino is less than twenty-six million dollars, reduced
proportionately if the Class B casino is licensed for less than the
full tax year, the commission shall notify the licensee of the
additional tax due within thirty days of the close of the tax year,
which amount shall be paid within thirty days of such notice.
(f) Four and one-half percent of the adjusted gross receipts
of each licensed gaming vessel or casino shall be paid to the
municipality and county wherein the facility is located, which
location shall be determined by where the gaming vessel is docked
or where the casino is primarily situated, to be distributed to the
municipality or county as follows:
(1) Forty percent shall be distributed to the municipality
where the gaming vessel is docked or the casino is located and, if
the gaming vessel is not docked or the casino is not located in a
municipality, then the forty percent shall be distributed to the
appropriate county commission where the gaming vessel is docked or
the casino is located.
(2) Sixty percent shall be proportionally divided among the
county where the gaming vessel is docked or the casino is located
and each municipality in that county, using a formula based upon
the population of each municipality and the population of the county living outside any municipality, such population to be
determined according to the most recent decennial census conducted
by the bureau of the census of the United States department of
commerce.
All distributions pursuant to this subsection shall allocated
for expenditure by the governing body of the municipality or county
commission receiving the funds.
§11B-11-11. Payment of taxes.
(a) A licensed gaming vessel or casino operator shall file
with the state tax commissioner a vessel gaming or casino tax
return prescribed by the tax commissioner on or before the twenty-
fifth day following each month in which the licensed gaming vessel
or casino operator received any gross receipts.
(b) A licensed gaming vessel or casino operator shall pay the
vessel gaming or casino taxes imposed by section three of this
article, which amount shall be indicated on a return prescribed by
the tax commissioner that covers the month that the licensed gaming
vessel or casino operator received the gross receipt. The taxes
shall be paid to the tax commissioner for deposit in the state
gaming fund created in section one of this article for distribution
in accordance with section ten of this article.
(c) Within thirty days of the end of the licensee's tax year,
the commissioner shall determine if that licensee's taxes paid on
adjusted gross receipts was less than the minimum required by
subsection (e) of section ten of this article and, if additional
amounts are due, shall notify the licensee of the amount of additional tax due and owing, which amount shall be paid by the
licensee within thirty days of such notification.
§11B-11-12. Determination of tax liability.
The tax commissioner shall determine the amount of tax
liability imposed pursuant to the provisions of section three of
this article, which determination may be reviewed or challenged in
accordance with such provisions as may apply to any other
determination of tax liability by the state tax commissioner.
§11B-11-13. Penalties.
The tax commissioner may impose penalties for any licensee's
failure to make reports, pay taxes, or comply with such other tax
obligations as are set forth in this article or by rules adopted by
the tax commissioner, which penalties shall be commensurate with
penalties imposed by the tax commissioner pursuant to other
provisions of this code.
ARTICLE 12. LOCAL APPROVAL OF GAMING ACTIVITIES.
§11B-12-1. Local option election in county or municipality.
A county commission or a Class A gaming location as that term
is defined in section one, article six of this chapter:
(1) May, at its discretion, call a special "local option
election" for the purpose of determining the will of the voters as
to whether gaming activities shall be permitted within that county
or municipality; or
(2) Shall call such special "local option election" to so
determine the will of the voters upon the filing of a petition
signed by a number of duly registered voters residing within the county or municipality equal to at least five percent of the
persons who actually voted at the last general election within the
county or municipality, which signatures shall be duly certified by
the county clerk of the county wherein the election is held within
thirty days of the filing of the petition with the county clerk.
§11B-12-2. Form of petition.
A petition for a local option election may be in any number of
counterparts and shall be sufficient if substantially in the
following form:
Petition for Local Option Election
Each of the undersigned certifies that he or she is a person
residing in the County (City) of ________________, West Virginia,
and is duly qualified to vote in said county (city) under the laws
of the State, and that his or her name, address and the date of
signing this petition are correctly set forth below.
The undersigned petition that a special election be held
within the county (city) upon the following question:
Shall licenses be issued by the West Virginia Gaming Control
Commission to permit gaming activities to be conducted in the
County (City) of _____________________?
NAME ADDRESS DATE
_____________________ ____________________ ___________
_____________________ ____________________ ___________
(Each person signing must specify either his or her post-office
address or street number.)
§11B-12-3. Notice of election.
The county commission or governing body of the municipality
shall give notice of the special "local option election" by
publication thereof as a Class II-O legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for such publication shall
be the area in which the election is to be held. Such notice shall
be so published within fourteen consecutive days next preceding the
election.
§11B-12-4. When election held; election officers.
The election shall be held not less than sixty not more than
ninety days from the date on which the county commission or
governing body of the municipality votes to initiate an election or
such date as the petition is certified by the clerk of the county
commission of the county in which the election shall be held. In
the event the election is predicated upon the filing of a petition,
the election shall be held within ninety from the certification of
the signatures of the county clerk. The election may be held in
conjunction with a primary or general election, or at a special
election. The regular election officers of the county or municipal
corporation shall open the polls and conduct the election in the
same manner provided for general elections.
§11B-12-5. Form of ballot.
On the ballot shall be printed the following:
Shall licenses be issued by the West Virginia Gaming Control
Commission to permit gaming activities to be conducted in the
County (City) of _____________________?
[] Yes.
[] No.
(Place a cross mark in the square opposite your choice.)
§11B-12-6. How election conducted and results certified.
The ballots shall be counted, returns made and canvassed as in
general elections, and the results certified by the commissioners
of election to the county commission of the county, or the
governing body of the municipality, as the case may be. The county
commission or governing body shall without delay certify the result
of the election to the gaming control commission.
§11B-12-7. When another election may be held.
When a "local option election" has been held in a county or
municipality and gaming activities have been disapproved by the
voters, another such election shall not be held for a period of two
years: Provided, That an election may be held within a municipality
without regard to an election held in or the time limit applicable
to the county within which the municipality, or a part thereof, is
located.
§11B-12-8. Local control of hours and activities; state
preemption.
Notwithstanding the provisions of section three, article six
of this chapter, the county commission or the governing body of a
municipality, as the case may be, may expand or reduce the hours
during which gaming may be conducted. No other local law,
ordinance, rule or regulation providing any penalty, disability,
restriction, regulation or prohibition for operating a gaming vessel or casino, operating a gaming device or supplying a gaming
vessel shall be enacted, and the provisions of this chapter preempt
all laws, ordinances, rules or regulations of any county or
municipality in conflict herewith.
ARTICLE 13. MISCELLANEOUS PROVISIONS.
§11B-13-1. Declaration of state's exemption from operation of
provisions of 15 U.S.C. §1172.
Pursuant to 15 U.S.C. §1171, et seq., the State of West
Virginia, acting by and through the duly elected and qualified
members of its Legislature, in accordance with and in compliance
with the provisions of 15 U.S.C. §1172 (making it unlawful to
transport any gambling device to any place in a state from any
place outside of such state, and providing exceptions thereto),
does hereby declare and proclaim that 15 U.S.C. §1172 shall not
apply to any gambling device in this State where the transportation
of such a device is specifically authorized by and done in
compliance with the provisions of the gaming control act, any other
applicable statute of this state, and any legislative rules
promulgated pursuant thereto, and that any such gambling device
transported in compliance with state law and state regulations
shall be exempt from the provisions 15 U.S.C. §1172.
§11B-13-2. Severability.
If any provision of this chapter or application thereof to any
person or circumstance is held invalid, such invalidity shall not
affect other provisions or applications of this chapter, and to
this end the provisions of this chapter are declared to be severable.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 11. GAMING CONTROL SECTION.
§15-11-1. Short title.
This article, together with the provisions of chapter eleven-b
of this code, shall be known and may be cited as the "Gaming
Control Act."
§15-11-2. Declaration of policy and legislative findings.
The Legislature finds that the creation of a gaming control
section within the division of public safety will facilitate the
safe and legal administration of the gaming provisions set forth in
chapter eleven-b of this code and declares it to be the policy of
this state that the gaming control section shall have the powers
and duties set forth in this article and such other powers and
duties as may be assigned them by the commission which are not
inconsistent herewith.
§15-11-3. Definitions.
As used in the gaming control act, which includes this article
and chapter eleven-b, the words and terms set forth in section
three, article one of chapter eleven-b and used in this article
shall have the meanings ascribed to them in that section, unless a
different meaning clearly appears in the context.
§15-11-4. Establishment of the gaming control section.
There is hereby established in the division of public safety
the gaming control section. The section is under the immediate
supervision of the superintendent of the division of public safety, who is responsible for the exercise of the duties and powers
assigned to the section under the provisions of the gaming control
act.
§15-11-5. Organization and employees.
(a) The superintendent of the division of public safety shall
organize the work of the section in such offices or other
organizational units as he or she may determine to be necessary for
effective and efficient operation.
(b) The superintendent shall assign members of the division
of public safety and such other employees and resources of the
division to the gaming control section as may be necessary to
fulfill the duties and responsibilities of the section under the
gaming control act. The gaming control commission shall reimburse
the division of public safety for salaries paid to such members and
employees, and shall pay directly or reimburse the division of
public safety for all other expenses of such group of members and
employees in accordance with actual or estimated costs determined
by the superintendent.
(c) The superintendent, if he or she deems such action
necessary, may hire legal counsel for the section, notwithstanding
the provisions of section two, article three, chapter five of this
code or any other code provision to the contrary, or may request
the attorney general to appoint assistant attorneys general who
shall perform such duties as may be required by the superintendent.
The attorney general, in pursuance of such request, may select and
appoint assistant attorneys general, to serve during the will and pleasure of the attorney general, and such assistants shall be paid
out of any funds allocated and appropriated to the state gaming
control fund.
(e) The superintendent may employ such staff or employees as
may be necessary to administer and enforce the laws regulating and
controlling vessel gaming and casino gaming in accordance with the
provisions of the gaming control act.
§15-11-6. Supervisory responsibilities within the gaming control
section.
The superintendent shall have control and supervision of the
gaming control section and shall be responsible for the work of
each of its organizational units. Each organizational unit shall
be headed by a member of the division appointed by the
superintendent and who shall be responsible to the superintendent
for the work of his or her organizational unit.
§15-11-7. General duties and powers of the gaming control section.
(a) The gaming control section shall promptly and in
reasonable order investigate all license, registration, certificate
and permit applications pending before the gaming control
commission; enforce the provisions of the gaming control act, or
the legislative rules promulgated hereunder; and prosecute before
the gaming control commission all proceedings for violations of the
gaming control act, or the legislative rules promulgated hereunder.
The section shall provide the gaming control commission with all
information necessary for all action under chapter eleven-b of this
code, and for all proceedings involving enforcement of the provisions of the gaming control act, or the legislative rules
promulgated hereunder;
(b) The section shall:
(1) Investigate the qualifications of each applicant before
any license, certificate, or permit is issued pursuant to the
provisions of the gaming control act;
(2) Investigate the circumstances surrounding any act or
transaction for which approval of the gaming control commission is
required;
(3) Investigate violations of the gaming control act and
legislative rules promulgated hereunder;
(4) Initiate, prosecute and defend such proceedings before
the gaming control commission, or appeals therefrom, as the section
may deem appropriate;
(5) Provide assistance upon request by the gaming control
commission in the consideration and promulgation of legislative
rules;
(6) Conduct continuing reviews of vessel and casino
operations through on-site observation and other reasonable means
to assure compliance with the gaming control act and legislative
rules promulgated hereunder;
(7) Receive and take appropriate action on any referral from
the commission relating to any evidence of a violation of the
gaming control act or the legislative rules promulgated hereunder;
(8) Exchange fingerprint data with, and receive criminal
history record information from, the Federal Bureau of Investigation for use in considering applicants for any license or
registration issued pursuant to the provisions of the gaming
control act, or the legislative rules promulgated hereunder;
(9) Conduct audits of gaming vessel and casino operations at
such times, under such circumstances, and to such extent as the
superintendent shall determine, including reviews of accounting,
administrative and financial records, and management control
systems, procedures and records utilized by a gaming vessel or
casino licensee; and
(10) Be entitled to request and receive information,
materials and any other data from any applicant, licensee,
licenseholder, permittee or registrant under the gaming control
act.
(c) The need for the section to inspect and investigate as
provided for in this section shall be presumed at all times. If a
gaming vessel operator or casino operator complains to the gaming
control commission regarding any investigative procedures of the
section which are alleged to be unnecessarily disruptive of gaming
operations, the gaming control commission shall review and rule
upon the matter. The disruption of a licensee's operations shall
be proved by clear and convincing evidence, and establish that: (1)
the procedures had no reasonable law enforcement purpose, and (2)
the procedures were so disruptive as to unreasonably inhibit gaming
operations.
(d) Section employees shall have primary jurisdiction on any
gaming vessel or at any casino and may notify and request assistance from any other local law enforcement agency: Provided,
That the local law enforcement agencies shall have concurrent
jurisdiction with regard to violations of local laws and with
regard to any state criminal laws not related to gaming activity as
set forth in the provisions of chapter eleven-b of this code.
§15-11-8. Prosecution of criminal violations.
The section shall refer all criminal violations of the gaming
control act to the appropriate prosecuting attorney of this state
for prosecution. If the division determines that a violation of
federal law may exist, the division shall refer the alleged
violation to the appropriate office of the United States Attorney
for prosecution.
§15-11-9. Civil actions to restrain violations of the gaming
control act.
(a) At the request of the gaming control commission or the
superintendent, the prosecuting attorney of the county where venue
is appropriate may institute a civil action in any circuit court of
this state to enjoin a violation of the gaming control act.
(b) An action brought against a person pursuant to this
section does not preclude a criminal action or administrative
proceeding against that person.
§15-11-10. Inspection, seizure, and warrants.
(a) The section and section employees, upon approval of the
superintendent, shall have the authority, without notice and
without warrant:
(1) To inspect and examine any controlled premises;
(2) To inspect all equipment and supplies in or upon any
controlled premises;
(3) To seize summarily, remove and impound any equipment or
supplies from any controlled premises for the purposes of
examination and inspection;
(4) To inspect, examine and audit all books, records, and
documents pertaining to the operations of a licensed gaming vessel
operator or a licensed casino operator;
(5) To seize, impound or assume physical control of any book,
record, ledger, game, device, cash box and its contents, counting
room or its equipment, or all or any part of any controlled
premises; and
(6) To inspect the person and personal effects of any holder
of a license or registration issued pursuant to the gaming control
act while that person is present on any controlled premises.
(b) The provisions of subsection (a) of this section shall in
no way be deemed to limit warrantless inspections except in
accordance with constitutional requirements.
(c) To effectuate further the purposes of this article and
chapter eleven-b of this code, the section and section employees
may obtain administrative warrants for the inspection and seizure
of any property possessed, controlled, bailed or otherwise held by
any applicant, licensee, licenseholder, permittee, registrant,
intermediary company, or holding company.
(d) Issuance and execution of warrants for administrative
inspection shall be in accordance with the following:
(1) Any judge or magistrate of a court having jurisdiction in
the county where the inspection or seizure is to be conducted may,
upon proper oath or affirmation showing probable cause, issue
warrants for the purpose of conducting administrative inspections
authorized by the gaming control act or legislative rules
promulgated hereunder and for seizures of property appropriate to
such inspections. For the purposes of this section, "probable
cause" means a valid public interest in the effective enforcement
of the gaming control act or legislative rules sufficient to
justify administrative inspection of the area, premises, building
or conveyance in the circumstances specified in the application for
the warrant.
(2) A warrant shall issue only upon an affidavit of a person
duly designated and having knowledge of the facts alleged, sworn to
before the judge or magistrate and establishing the grounds for
issuing the warrant. If the judge or magistrate is satisfied that
grounds for the application exist or that there is probable cause
to believe they exist, he or she shall issue a warrant identifying
the area, premises, building, or conveyance to be inspected, the
purpose of such inspection, and, where appropriate, the type of
property to be inspected, if any. The warrant shall identify the
item or types of property to be seized, if any. The warrant shall
be directed to a person authorized to execute it. The warrant
shall state the grounds for its issuance and the name of the person
or persons whose affidavit has been taken in support thereof. It
shall command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose
specified, and where appropriate, shall direct the seizure of the
property specified. The warrant shall direct that it be served
during normal business hours of the licensee. It shall designate
the judge or magistrate to whom it shall be returned.
(3) A warrant issued pursuant to this section shall be
executed and returned within 10 days of its date. If property is
seized pursuant to a warrant, the person executing the warrant
shall give to the person from whom or from whose premises the
property was taken a copy of the warrant and a receipt for the
property taken or shall leave the copy and receipt at the place
from which the property was taken. The return of the warrant shall
be made promptly and shall be accompanied by a written inventory of
any property taken. The inventory shall be made in the presence of
the person executing the warrant and of the person from whose
possession or premises the property was taken, if they are present,
or in the presence of at least one credible person other than the
person executing the warrant. The clerk of the court, upon
request, shall deliver a copy of the inventory to the person from
whom or from whose premises the property was taken and to the
applicant for the warrant.
(4) The judge or magistrate who has issued a warrant under
this section shall attach to the warrant a copy of the return and
all papers filed in connection therewith and shall cause them to be
filed with the circuit clerk or magistrate court clerk of the court
which issued such warrant.
(e) The section is authorized to make administrative
inspections to check for compliance by any applicant, licensee,
licenseholder, permittee, registrant, intermediary company or
holding company in accordance with the provisions of the gaming
control act or legislative rules promulgated hereunder, and to
investigate any violations thereof.
(f) This section shall not be construed to prevent entries
and administrative inspections, including seizures of property,
without a warrant:
(1) With the consent of the owner, operator or agent in
charge of the premises;
(2) In situations presenting imminent danger to health or
safety;
(3) In situations involving inspection of conveyances where
there is reasonable cause to believe that the mobility of the
conveyance makes it impractical to obtain a warrant or in any other
exceptional or emergency circumstance where time or opportunity to
apply for a warrant is lacking;
(4) In accordance with the provisions of the gaming control
act; or
(5) In all other situations where a warrant is not
constitutionally required.