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Introduced Version Senate Bill 52 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 52

(By Senators Caruth and Deem)

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[Introduced February 11, 2009; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact §47-23-9 and §47-23-11 of the Code of West Virginia, 1931, as amended, all relating to charitable raffle boards and games; prohibiting the sale of raffle boards and games to unauthorized persons; and prohibiting possession of charitable raffle boards and games by unauthorized persons.

Be it enacted by the Legislature of West Virginia:
That §47-23-9 and §47-23-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 23. CHARITABLE RAFFLE BOARDS AND GAMES.
§47-23-9. Penalty for failure to file return when no fee due; other offenses; penalties; seizures of illegal boards and games; disposition.

(a) Penalty for failure to file required return where no fee due. -- In the case of any failure to make or file a return when no fee is due, as required by this article, on the date prescribed therefor, unless it be shown that such failure was due to reasonable cause and not due to willful neglect, there shall be collected a penalty of $25 for each month of such failure or fraction thereof.
(b) It shall be is a misdemeanor, punishable pursuant to the terms of this article, if any person:
(1) Makes any false entry upon an invoice required to be made under the provisions of this article or with intent to evade the fee imposed by this article presents any such false entry for the inspection of the commissioner;
(2) Prevents or hinders the commissioner from making a full inspection of any place where charitable raffle boards or games subject to the fee imposed by this state are sold or stored or prevents or hinders the full inspection of invoices, books, records or papers required to be kept under the provisions of this article;
(3) Sells any charitable raffle boards or games in this state on which the applicable fee or tax has not been paid;
(4) Being a retailer in this state, fails to produce on demand by the commissioner invoices and verification of all charitable raffle boards and games purchased or received by him or her within three years prior to such demand, unless upon satisfactory proof it is shown that such nonproduction is due to providential or other causes beyond his or her control; or
(5) Being a retailer in this state, purchases or acquires charitable raffle boards and games from any person other than a wholesaler or distributor licensed under this article; or
(6) Being neither a wholesaler nor a distributor licensed under this article, nor a person authorized under article twenty-one of this chapter, has in his or her possession or on his or her premises, any raffle boards and games, as defined in this article, whether for sale, transport, amusement or any other purpose, after June 30, 2009.

(c) Any person convicted of violating the provisions of subsection (b) of this section shall be confined in the county jail or regional jail for not more than one year or fined not less than $1,000 nor more than $10,000, or both fined and confined.
(d) Any person who falsely or fraudulently makes, forges, alters or counterfeits any invoice or serial number prescribed by the provisions of this article, or its related rules, and regulations, for the purpose of evading the fee hereby imposed, shall be is guilty of a felony and, upon conviction thereof, shall be sentenced to pay a fine of be fined not less than $5,000 nor more than $10,000 or imprisoned in the penitentiary a correctional facility for a term of not less than one year nor more than five years, or both fined and imprisoned.
(e) Whenever the commissioner, or any of his or her deputies or employees authorized by him or her, or any peace officer of this state shall discover any charitable raffle boards or games subject to the fee as provided by this article and upon which the fee has not been paid as herein required, or in the possession of an unauthorized person as defined in subsection (b) of this section, whether or not the fee has been paid, such charitable raffle boards and games shall thereupon be deemed considered to be contraband, and the commissioner, or such deputy or employee or any peace officer of this state, is hereby authorized and empowered forthwith to seize and take possession of such charitable raffle boards or games, without a warrant, and such charitable raffle boards and games shall be forfeited to the state, and the commissioner shall retain the forfeited charitable raffle boards and games until they are no longer needed as evidence in any prosecution of the person from whom the raffle boards and games were seized. The commissioner may within a reasonable time thereafter destroy such charitable raffle boards and games or sell said the charitable raffle boards or games at public auction to the highest bidder: Provided, That such seizure and destruction or public auction shall not be deemed to relieve any person from fine or imprisonment as provided herein for violation of any provisions of this article. Such destruction may be made in any county the commissioner deems determines most convenient and economical. All revenue from said the license fee shall be deposited in the special revenue account established under the authority of section two-a, article nine, chapter eleven of this code and used to support the investigatory activities provided for in said section.
(f) Magistrates shall have concurrent jurisdiction with any other courts having jurisdiction for the trial of all misdemeanors arising under this article.
§47-23-11. Administration; rulemaking; required verification.
(a) The commissioner shall propose for promulgation, rules to administer the provisions of this article in accordance with the provisions of chapter twenty-nine-a of this code: Provided, That the initial promulgation of rules to administer the provisions of this article shall be by emergency rule. Additionally, the commissioner shall promulgate a rule which requires that every charitable raffle board or game shall each bear verification, as defined by section two of this article, printed by a manufacturer on each ticket in a game unless, upon application by the taxpayer showing undue hardship, the Tax Commissioner consents to waive this requirement in favor of some other form of verification.
(b) The commissioner shall deny an application for a license if he or she finds that the issuance thereof would be in violation of the provisions of this article.
(c) The commissioner may suspend, revoke or refuse to renew any license issued hereunder for a material failure to maintain the records or file the reports required by this article or administrative rule if the commissioner finds that said failure will substantially impair the commissioner's ability to administer the provisions of this article with regard to said licensee.
(d) Wholesalers and distributors of raffle boards and games for use in the State of West Virginia shall require every purchaser to produce positive identification, and verification of his or her authority to possess and sell such games in the State of West Virginia, which shall be duly recorded on the sale invoice. The commissioner may suspend, revoke or refuse to renew any license issued hereunder if he or she finds that a wholesaler or distributor has knowingly sold any games for use in this state to a person not authorized to possess raffle boards and games as defined in section nine of this article.
(d) (e) The burden of proof in any administrative or court proceeding is on the applicant to show cause why a charitable raffle boards or games wholesaler's or distributor's license should be issued or renewed and on the licensee to show cause why its license should not be revoked or suspended.


NOTE: The purpose of this bill is to prohibit the possession of certain gambling devices by persons not authorized by law to sell or possess such devices, by declaring them contraband and extending the authority of the State Tax Department Criminal Investigation Division to seize such games.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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