Senate Bill No. 355
(By Senators Blatnik and Scott)
__________
[Introduced February 14, 1995; referred to the
Committee on the Judiciary; and then to the
Committee on 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 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.