Senate Bill No. 562
(By Senator Caruth)
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[Introduced February 4, 2008; 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 twenty-five dollars for each month of such
failure or fraction thereof.
(b) It shall be 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 the thirtieth day of June, two thousand eight.
(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
one thousand dollars nor more than ten thousand dollars, or both.
(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 guilty of a felony and, upon conviction thereof, shall be
sentenced to pay a fine of not less than five thousand dollars nor
more than ten thousand dollars or imprisoned in
the penitentiary
a correctional facility for a term of not less than one year nor
more than five years, or both.
(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 (6) of this section,
whether or not the fee has been paid, such charitable raffle boards
and games shall thereupon be deemed 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 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 most convenient and
economical. All revenue from said 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.