WEST virginia legislature

2018 regular session

Introduced

House Bill 4403

By Delegates Marcum, Eldridge, Dean, Folk, McGeehan, Westfall, Hicks, Phillips, E. Evans and Lynch

[Introduced February 2, 2018; Referred
to the Committee on Government Organization then Finance.]

A BILL to amend and reenact §29-5A-1, §29-5A-1a, §29-5A-2, §29-5A-3, §29-5A-3a, §29-5A-3b, §29-5A-6, §29-5A-7, §29-5A-8, §29-5A-13, §29-5A-14, §29-5A-15, §29-5A-16, §29-5A-17, §29-5A-20, §29-5A-23 and §29-5A-24 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §29-5A-25b, all relating generally to the State Athletic Commission; increasing the number of commission members; requiring that one member be a licensed promoter; setting forth additional duties and responsibilities of the commission; eliminating certain responsibilities of promoters; providing that surplus funds of the commission may be appropriated elsewhere by the Legislature; limiting certain pay rates; eliminating certain sparring matches; providing that promoters may appeal decisions by the commission to a circuit court; extending the time period certain organizations have to file reports; permitting semiprofessionals to pay a yearly license fee instead of on an event-by-event basis; subjecting certain individuals to the state’s ethics act; and requiring rulemaking.

Be it enacted by the Legislature of West Virginia:

ARTICLE 5A. STATE ATHLETIC COMMISSION.

§29-5A-1. Creation of commission; members; officers; seal and rules.

The State Boxing Commission, heretofore created, is hereby continued and renamed the State Athletic Commission. The commission shall consist of five seven persons appointed by the Governor, by and with the consent of the Senate, no more than three of whom shall belong to the same political party and two of whom shall no more than one may be residents of the same county at the same time. One member Two members shall have at least three years of experience in the sport of boxing. One member Two members shall have at least three years of experience in the sport of mixed martial arts. One member shall have at least three years of experience in the health care industry as a licensed physician, registered nurse, nurse practitioner or physicians’ assistant. One member shall have at least one-year experience as a licensed promoter as defined by rules promulgated by the commission and approved by the Legislature. Two members shall be citizen members who are One member shall be a citizen member who is not licensed under the provisions of this article and who do does not perform any services related to the persons regulated under this article. The members shall serve without pay. At the expiration of the term of each member, his or her successor shall be appointed by the Governor for a term of four years. If there is a vacancy in the board, the vacancy shall likewise be filled by appointment by the Governor and the Governor shall likewise have the power to remove any commissioner at his or her pleasure. Any three five members of the commission shall constitute a quorum for the exercise of the power or authority conferred upon it. The members of the commission shall, at the first meeting after their appointment, elect one of their number chairman of the commission and another of their number secretary of the commission, shall adopt a seal for the commission and shall make such rules for the administration of their office, not inconsistent herewith, as they may consider expedient; and they may hereafter amend or abrogate such rules. The chair of the commission may only serve one term of two years, at any one time. The concurrence of at least three five commissioners is necessary to render a choice or decision of the commission except that, notwithstanding the requirements of the Open Governmental Proceedings Act, West Virginia Code §6-9a-1 et seq. of this code, a quorum of the commission may vote in writing to approve changes to the roster of participants or the roster of officials if the need for the substitution(s) is made known to the commission within 48 hours of an event that the commission previously approved: Provided, That the substitution(s) is necessary to effectuate the match: Provided, however, That the written decision of the commission is presented at the next scheduled meeting of the commission and recorded in its minutes: Provided further, That the commission shall always consider the issue presented and has the sole authority to approve or deny matches. It is the goal of the commission to work with promoters to approve all matches at least eight hours before a scheduled match or event.

§29-5A-1a. Commission office; administrative support provided by Lottery Commission.

The office of the commission shall be located on the same premises as the office of the Lottery Commission and the Lottery Commission shall provide the commission with any necessary administrative support or management, including, but not limited to:

(1) Administrative recordkeeping;

(2) Maintaining an accurate and published registry of names, addresses and relevant information of all licensees; and

(3) Management of finances and budgetary oversight; and

(4) Management of a website with all forms and scheduled meetings.

§29-5A-2. Powers and duties of secretary; penalty for false swearing, etc.; biennial reports of commission.

 It shall be the duty of the secretary to keep a full and true record of all proceedings of said commission, to preserve all its books, documents and papers, to prepare for service such notices and other papers as may be required of him or her by the commission and to perform such other duties as the commission may prescribe; and he or she may at the direction of the commission issue subpoenas for the attendance of witnesses before the commission with the same effect as if they were issued in an action in any circuit court of the state and may administer oaths in all matters pertaining to the duties of his or her office or connected with the administration of the affairs of the commission. The subpoenas shall be on forms prescribed by the commission and served by the sheriff's department of the county in which the individual being subpoenaed resides. Such subpoenas shall be signed by at least two five members. Disobedience of such subpoena and false swearing before such secretary shall be attended by the same consequences and be subject to the same penalties as if such disobedience or false swearing occurred in an action in any circuit court of the state. The commission shall make to the Legislature biennial annual reports of their proceedings for two years the year ending with the last day of the preceding December and may submit with such report such recommendations pertaining to its affairs, as to it shall seem advisable.

§29-5A-3. Commission to have sole control of boxing, etc., matches; licenses; municipality not to tax boxing, etc., club.

(a) The commission has sole direction, management and control of the jurisdiction over all amateur, professional and semiprofessional boxing, sparring matches and exhibitions, or any form thereof, to be conducted, held or given within the state by any club, individual, corporation or association. As used in this article, the term “boxing” includes any fighting event that includes or permits the striking of an opponent with a closed fist, even if wrestling moves, elements of martial arts or striking an opponent with the feet are also permitted. No boxing sparring or exhibition may be conducted, held or given within the state except pursuant to the commission's authority and held in accordance with this article. The commission may issue and revoke the license to conduct, hold or give boxing or sparring matches or exhibitions to any club, corporation, association or individual. Every license is subject to rules the commission may prescribe. Every application for a license shall be on a blank form provided by the commission. No promoter's license may be granted to any club, corporation, association or individual unless the signer of the application is a bona fide resident of the state of West Virginia Upon application of the promoter's license, the promoter shall pay a state license fee of $125 for one year. The fee is nonrefundable and shall be paid in the form of a certified check or money order issued to the Treasurer of the State of West Virginia to be deposited in the fund set forth in §29-5A-3b of this code. Nonprofit chartered and charitable organizations are exempt from this license fee for all amateur events. No municipal corporation may impose any license tax on boxing, sparring or exhibition clubs, notwithstanding the provisions of any section of the code respecting municipal taxes and licenses. The granting of a license to a club by the commission, or the holding of a license by a club, individual, corporation or association, does not prevent the commission from canceling or revoking the license to conduct an event as provided in this section.

(b) In exercising its jurisdiction over professional and semiprofessional boxing sparring matches and exhibitions, the commission shall follow the current unified rules of boxing adopted by the Association of Boxing Commissions and requirements to enable the proper sanctioning of all participants, referees, judges and matches or exhibitions conducted under the rules described in §29-5A-24(c)(1) of this code and shall cooperate fully with the Association of Boxing Commissions in order that the sanctioning be extended to state boxers. However, the commission has the sole authority to approve all matches and exhibitions held in the state. The commission shall supervise all amateur boxing conducted in this state and any such contest shall follow the amateur rules for boxing as adopted by the United States Amateur Boxing Authority. For full contact boxing events and other boxing events that follow nontraditional rules, the commission may impose any limitations or restrictions reasonably necessary to guarantee the safety of the participants and the fair and honest conducting of the matches or exhibitions and may refuse to license any event that poses an unreasonable degree of risk to the participants. The commission shall work with all promoters in a good faith effort to make sure all previously approved matches go forth and are not pulled from the match/bar card at least eight hours before the published scheduled time of the event.

§29-5A-3a. Power to regulate mixed martial arts.

(a) The commission has sole power, direction, management and control over all professional and amateur mixed martial arts contests, matches and exhibitions, or any form thereof, to be promoted, conducted, held or given within the state.

(b) As used in this article, the term “mixed martial arts” means a combative sporting contest, the rules of which allow two competitors to attempt to achieve dominance over one another by utilizing a variety of techniques including, but not limited to, striking, grappling and the application of submission holds.

(c) A mixed martial arts contest, match or exhibition promoted, conducted, held or given within the state shall be under the commission's authority and be in accordance with the provision of this section. The provisions of this article that apply to boxing shall also apply to mixed martial arts as appropriate.

(d) In exercising its jurisdiction over professional and amateur mixed martial arts contests matches and exhibitions, the commission shall follow the current unified rules of mixed martial arts as adopted by the Association of Boxing Commissions to enable the proper equipment, fighting area and weight classes to ensure the safety of contestants and ensure the licensing of all participants, referees and judges, and the approval of contests, matches or exhibitions conducted under the provisions of this section.

(e) The commission may issue and revoke a license to promote, conduct, hold or give mixed martial arts contests, matches or exhibitions and may issue and revoke a license to be a contestant. Each license is subject to the provisions of this section and this article and the rules of the commission.

(f) The commission shall propose rules for legislative approval, in accordance with the provisions of article three, chapter 29A of this code, to implement the provisions of this section, including:

(1) Procedures and requirements for the issuance and renewal of licenses: Provided, That the procedures and requirements may not:

(A) Limit or prohibit mixed martial arts contests, matches or exhibitions; nor

(B) Include a provision that a licensee be a West Virginia resident;

(2) Exemptions from licensure;

(3) Procedures for revoking licenses;

(4) Adopting the unified rules of mixed martial arts;

(5) A fee schedule;

(6) Limitations or restrictions necessary to guarantee the safety of the participants;

(7) The requirements for fair and honest conducting of the contests, matches or exhibitions; and

(8) Any other rules necessary to effectuate the provisions of this section.

(g) Notwithstanding the provisions of this code to the contrary, a municipality may not impose a municipal license tax under §8-13-4 of this code on mixed martial arts clubs. The granting of a license to a club by the commission, or the holding of a license by a club, individual, corporation or association, does not prevent the commission from revoking the license to conduct an event as provided in this section: Provided, That nothing in this subsection limits the authority of a municipality to impose any other taxes or fees on mixed martial arts contests, matches or exhibitions pursuant to §8-13-1 et seq. of this code.

§29-5A-3b. State Athletic Commission Fund.

(a) All moneys collected shall be deposited in a special account in the State Treasury to be known as the State Athletic Commission Fund. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions of 11B-2-1 et seq. of this code: Provided, That for the fiscal year ending June 30, 2016, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.

(b) A supplemental appropriation may be authorized by the Legislature for administrative expenditures that exceed collections in the fiscal years ending June 30, 2016, June 30, 2017, and June 30, 2018, or until such time as the commission collections are sufficient to fully fund its operations.

(c) All money collected and deposited in the State Athletic Commission Fund that remains after the commission satisfies its administrative operating obligations shall be surplus revenue funds available for appropriation Provided, That the commission may retain surplus revenue funds as long as it allocates the surplus for a specific purpose and approves such funds be carried forward for use in the following fiscal year prior to the end of the fiscal year in which the revenues were collected by the Legislature.

§29-5A-6. Payment of official in charge.

The deputy, inspector or other officials designated by the commission to be in charge of a boxing or mixed martial arts event shall be paid by the promoter at a minimum rate of no more than $75 per day for services performed prior to any event at a weigh-in and each day of an event: Provided, That not more than one official designated by the commission to be in charge of a boxing or mixed martial arts event may receive compensation for services performed. If a weigh-in occurs within three hours before the boxing bouts are scheduled to begin, the deputy, inspector or other officials will be paid only one rate at a minimum of no more than $75 for that particular night or day’s events. Judges, timekeepers, scorekeepers and inspectors shall be paid by the promoter at a minimum rate of no more than $50 per day for services performed prior to any event and each day of an event. Referees shall be paid by the promoter at a minimum rate of no more than $75 per day of bouts. Payments to the officials in charge, judges, timekeepers, scorekeepers, inspectors or referees exceeding the amounts under this section are prohibited without prior written consent of the promoter: Provided, however, That the commission may revise any fees paid to officials through legislative rule-making process beginning June 30, 2018, and every three years thereafter. The commission may not revoke an event permit or license for refusal to pay a fee greater than the fees in this section: Provided further, That approved officials are available, willing and able to work the event for the proscribed fees may not cancel a previously approved event without written notice to the promoter at least two weeks before the event. Deputies, inspectors, judges, referees, timekeepers, scorekeepers or any other officials designated by the commission to be in charge of an event shall not accept, other than the fees proscribed herein, any gift, pass or other thing of value in connection with any event and are subject to the state ethics act, chapter 6B of this code.

§29-5A-7. Interference with or restraining of professional boxing or exhibitions.

No person or persons, club, organization or corporation shall, except in accordance with law, interfere with or restrain, or attempt to interfere with or restrain, by any act, threat or otherwise, either within or without this state, the putting on or the conducting of any professional boxing match or exhibition of this state. However, a promoter may appeal a decision made by the commission to the circuit court of the county where the event is scheduled, for a writ of prohibition or writ of mandamus if there is a disagreement as to the actions of the commission.

§29-5A-8. Issuance of license; qualification for licenses; application of other provisions of chapter; hearings.

The commission may issue a license to promote, conduct or hold professional boxing, professional or amateur mixed martial arts, sparring matches, and exhibitions to any person, corporation, association, club or organization eligible for a license under this chapter.

Before being granted a license, or the renewal of the license, the applicant must shall establish to the satisfaction of the commission that he or she:

(a) (1) Is skilled, or has knowledge, in the profession of boxing or mixed martial arts;

(b) (2) Is of good moral character;

(c) (3) Is physically fit and mentally sound;

(d) (4) Will conduct his or her business in the best interest and welfare of the public, preserving the safety and health of participants and the best interests of professional boxing or professional or amateur mixed martial arts generally;

(e) (5) Will adhere to and comply with all the rules and regulations of the commission pertaining to the license.

In the case of a corporate applicant, these factors shall pertain to its officers, directors, principal stockholders and employees.

Every license and licensee is subject to such rules, and amendments thereof, as the commission may prescribe.

The commission shall work to make sure events proceed as previously approved and may not unilaterally pull or remove matches unless good cause exists. The commission staff shall also work to make sure all previously approved events go forward as approved.

§29-5A-13. Cancellation of license for fake boxing, etc., exhibition; penalty for participating in such exhibition.

Any club, corporation, association or individual which may conduct, hold or give or participate in any sham or fake boxing sparring or exhibition shall thereby forfeit its license issued in accordance with the provisions of this article, which shall thereupon be, by the commission, canceled and declared void; and it shall not be entitled to receive another such license or any license pursuant to the provisions of this article for one year, nor shall any license thereafter be granted to any club, corporation, association or individual, including among its members, directors, partners or stockholders, any member, director, partner or stockholder of the club, corporation, association or individual whose license has been so forfeited. Any contestant who shall participate in any sham or fake boxing sparring or exhibition, and any other person whatsoever who shall in any manner be connected with the arranging, planning, holding, conducting or giving of any such sham or fake boxing sparring or exhibition shall be guilty of a misdemeanor, and, shall upon conviction thereof, be fined not less than $500, nor more than $1,000; or be confined in jail for a period of not less than six months, nor more than one year or both; and any contestant so participating shall be further totally disqualified for one year from further admission or participation in any boxing or sparring held or given by any club, corporation, association or individual duly licensed for said purpose.

§29-5A-14. Suspension, revocation, etc., of license.

The commission shall have the additional authority and power to suspend, revoke or place on probation the license of any licensee licensed under this chapter, who in the discretion of the commission:

(a) Is guilty of failure to obey any lawful order of the commission, the secretary or any inspector thereof;

(b) Is guilty of gross immorality;

(c) Is unfit or incompetent. by reason of negligence

(d) Is guilty of violating any provision of this chapter or rules and regulations of the commission;

(e) Has committed fraud or deceit in securing a license for himself or herself or another;

(f) Has been convicted of a felony or misdemeanor involving moral turpitude in any jurisdiction within one year preceding the suspension or revocation and such conviction not previously reported to the commission by said licensee;

(g) Is an habitual drunkard or addicted to the use of narcotics;

(h) Is or has become mentally incompetent;

(i) Is or has been guilty of unprofessional or unethical conduct; or such conduct as to require a suspension or revocation of license in the interest of the public

(j) Has failed to furnish the proper party a copy of any contract or statement required by this chapter or the rules and regulations promulgated hereunder, or has breached such a contract;

(k) Has loaned or permitted another person to use his or her license, or has borrowed or used the license of another;

(l) Has failed to maintain in force the bond required by this chapter;

(m) Has by act or omission conducted himself or herself in a manner which would tend to be detrimental to the best interests of boxing generally, or to the public interest and general welfare;

(n) Has been disciplined in any manner by the boxing commission or similar agency or body of any jurisdiction;

(o) Has failed to pay a fine or forfeiture imposed by this chapter;

(p) Has, either within or without this state, by any act, threat, statement or otherwise, restrained, hindered, interfered with or prevented another promoter, club, association or booking agent, or has attempted, either within or without this state, in any such manner to restrain, hinder, interfere with or prevent another promoter, club, association or booking agent from presenting any boxing match or exhibition within or without the State of West Virginia;

(q) Has, either within or without this state, engaged, directly or indirectly, in restraints or monopolies or taken any action tending to create or establish restraints or monopolies or conspired with others to restrain any person or persons from participating or competing in any boxing match or exhibition for any promoter, club, association or booking agent.

§29-5A-15. Reports by clubs to commission; bonds of applicants for license.

Every club, corporation, association or individual which may hold or exercise any of the privileges conferred by this article shall, within four 10 business days after the determination of any contest, furnish to the commission a written report, duly verified by one of its officers, showing the number of tickets sold or the best estimate thereof for such contest, and the amount of the gross proceeds thereof and such other matters as the commission may prescribe. Before any license shall be granted to any club, corporation, association or individual to conduct, hold or give any boxing sparring or exhibition, such applicant therefor shall execute and file with the commission a surety bond in the sum of which shall be at the discretion of said commission, to be approved as to form and the sufficiency of the security thereon by the said commission. Such bond shall cover all purses, awards and payments to be paid by the promoter.

§29-5A-16. Presence of members of commission or inspector at exhibitions and matches.

Each member of the commission shall have the privilege of being present at all exhibitions and matches without charge therefor, and shall, when present, see that the rules are strictly observed. and may be present at the counting of the gross receipts. The commission may appoint an inspector to be present representing said commission, which inspector shall have the same privilege hereby conferred upon a member of the commission; and said inspector shall immediately mail to the commission the official box office statement received by him or her from the officers of the club

§29-5A-17. Referee and judges; appointment by commission; powers, payment.

(a) The chief official of the boxing match or exhibition shall be the referee. The referee and judges shall be appointed by the commission and shall receive from the commission a card authorizing them to act as such and no club may employ or permit anyone to act as referee except one holding a card of authorization from the commission. The referee has general supervision and control over the match or exhibition and shall be paid by the promoter a minimum of no more than $75 for each day or night's services. The referee is limited to refereeing a maximum of thirty forty rounds per day or night unless special consent is given by the commission.

(b) Once appointed by the commission, the promoter bears the responsibility for ensuring the attendance of referee and judges at events Once voted upon by the commission, it has the responsibility for making sure all referees and judges are present at the event. The commission shall provide promoters with advance notice of the person(s) appointed as referee and judges. A promoter, at his or her own expense, may request alternate referee(s) and judge(s) be appointed by the commission to serve in the event a first appointed referee or judge is unable to satisfy the role. Under no circumstances may a member of the commission or any employee of the commission serve as a referee or judge for a boxing or mixed martial arts contest conducted in this state.

§29-5A-20. Licenses for contestants, referees and managers.

No contestant, trainer, inspector, referee or professional manager may take part in any boxing contest or exhibition unless holding a license from the state that is issued by the commission upon payment of the following annual license fee schedule: Professional contestant $25; amateur contestant $20 $10 trainer $20 $10; inspector $30; referee $30; and professional manager $50 $25. Semiprofessional contestants shall pay a license fee of $10 for each event a one year license. Such fees shall accompany the application and shall be in the form of a certified check or money order and shall be issued to the Treasurer of the State of West Virginia to be deposited in the State Athletic Commission Fund. If a license is not granted, the Treasurer shall refund the full amount.

§29-5A-23. Injunctive relief for violation of chapter.

In the event of violation of any provision of this chapter, in addition to any other remedy, the commission may apply to any court of record in the State of West Virginia for relief without being compelled to allege or prove that any adequate remedy at law does not exist. A promoter may also petition the court for a writ of prohibition or writ of mandamus.

§29-5A-24. Rules governing contestants and matches.

(a) The commission shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code.

(b) The commission shall propose such rules to regulate professional and semiprofessional boxers, professional or amateur mixed martial artists, professional and semiprofessional boxing matches and exhibitions and professional or amateur mixed martial arts matches and exhibitions: Provided, That for professional boxers and boxing matches and exhibitions, the commission rules shall comply with the current unified rules of boxing as adopted by the Association of Boxing Commissions; for professional mixed martial artists and mixed martial arts matches and exhibitions, the commission rules shall comply with the current unified rules of mixed martial arts as adopted by the Association of Boxing Commissions; for amateur boxers and boxing matches or exhibitions, the commission rules shall comply with the amateur rules for boxing as adopted by the United States Amateur Boxing Authority; and for amateur mixed martial artists and mixed martial arts matches or exhibitions, the commission rules shall comply with the current unified rules of mixed martial arts as recommended and/or adopted by the Association of Boxing Commissions. For full contact boxing and other boxing events that follow nontraditional rules, rules guaranteeing the safety of the participants and the fair and honest conducting of the matches or exhibitions are authorized: Provided, That the commission is its own governing body and shall work to make sure all approved events go on as previously planned.

(c) The commission shall propose separate rules for amateur boxers and amateur boxing, sparring matches and exhibitions as follows:

Rules which comply with the requirements of the rules of the current United States Amateur Boxing Authority to the extent that any boxer complying with them will be eligible to participate in any state, national or international boxing match sanctioned by the current United States Amateur Boxing Authority or the International Amateur Boxing Association; Provided, That the commission may proceed with an event if it has reason to make an exception.

§29-5A-25b. Commission requirements.

The commission shall act in a manner reasonably necessary to promote the good of the sport of boxing and mixed martial arts. The commission has the authority to approve or deny events, but must do so within two weeks of the event. The commission may not change a scheduled event or bout card within eight hours of any previously scheduled event or bout. It is required that the commission act in good faith.

NOTE: The purpose of this bill concerns the State Athletic Commission. The bill increases the number of commission members. The bill requires that one member be a licensed promoter. The bill sets forth additional duties and responsibilities of the commission. The bill eliminates certain responsibilities of promoters. The bill provides that surplus funds of the commission may be appropriated elsewhere by the Legislature. The bill limits certain pay rates. The bill eliminates certain sparring matches. The bill provides that promoters may appeal decisions by the commission to a circuit court. The bill extends the time period certain organizations have to file reports. The bill permits semiprofessionals to pay a yearly license fee instead of on an event-by-event basis. The bill requires rulemaking.

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