COMMITTEE SUBSTITUTE
FOR
H. B. 2765
(By Delegates Willis, Campbell, Yeager, Tillis, Smirl and
Leach)
(Originating in the Committee on Finance)
[March 28, 1997]
A BILL to amend chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-five,
relating to authorizing a gaming facility; providing
generally therefor; stating legislative findings that such
a gaming facility is important to the tourism industry and
that the limited authorized games of chance are not
lotteries or gift enterprises; defining certain terms;
declaring gaming and wagering legal when conducted under
terms specified in article; stating that article does not
apply to racing, lottery or activities regulated by article
twenty, chapter forty-seven of this code; establishing
limited gaming oversight division within the department of
tax and revenue and providing generally therefor; providing
for the adoption of rules and requiring certain rules;
providing for the coordination and cost of law-enforcement
activities; extending jurisdiction of local law enforcement
in stated circumstances; requiring local approval of the gaming facility; providing generally for license to operate
a gaming facility; stating qualifications and requirements
for a gaming facility license; itemizing areas for division
to consider in granting license; requiring licensee to
execute surety bond and providing generally therefor;
stating authorization of license and prohibiting transfer,
assignment, sale or pledge as collateral; requiring audits
and inventories; requiring licensee's annual reports and
itemizing various inclusions; requiring license for supplier
of gaming facility and providing generally therefor,
including investigation requirement; requiring license for
gaming device operator and providing generally therefor,
including background information and investigation
requirement; requiring license for gaming facility employees
and providing generally therefor, including background
information and investigation requirement; setting forth
annual license fee for all licenses; providing that all
licensees consent to warrantless searches of person,
personal property and certain premises under control of
licensee; setting forth additional license requirements and
prohibitions; describing license and requiring display
thereof; providing for expiration and renewal every five
years; stating renewal fee for all licenses; providing for
license denial revocation and reprimand subsequent to
hearing thereon; creating implied consent of patrons to law
enforcement presence; allowing gaming operators to set
wagers; requiring use of licensed suppliers; imposing tax on adjusted gross receipts; providing generally for filing and
payment of taxes; creating state gaming fund and
municipalities revenue fund; providing for distribution of
tax; prohibiting defrauding devices as itemized; setting
forth prohibitions and requirements as to conduct of
wagering; itemizing numerous misdemeanor and felony offenses
and stating penalty for offense; authorizing for forfeiture
of certain property; prohibiting participation in gaming by
certain individuals under certain circumstances; and
providing for civil penalties.
Be it enacted by the legislature of West Virginia:
That chapter twenty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article twenty-five, to
read as follows:
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-1. Authorization of limited gaming facility; findings.
(a)
Operation of authorized games of chance. --
Notwithstanding any provision of law to the contrary, the
operation of those limited games of chance authorized by this
article and the related operation of a gaming facility and
ancillary activities is not unlawful when conducted under the
terms specified in this article.
(b)
Legislative findings. -- The Legislature finds and
declares that the tourism industry plays a critical role in the
economy of this state, and that a substantial state interest
exists in protecting that industry; and, further, that the authorization of the operation of a gaming facility at one
established historic resort hotel in this state as provided in
this article will serve to protect and enhance the tourism
industry, and indirectly other segments of the economy of this
state, by providing a resort hotel amenity which is becoming
increasingly important to many actual and potential resort hotel
patrons.
The Legislature finds and declares that the operation of the
authorized games of chance permitted by this article does not
constitute the operation of lotteries or gift enterprises within
the purview of section thirty-six, article VI of the constitution
of this state.
§29-25-2. Scope of provisions.
This article does not apply to the pari-mutuel system of
wagering under article twenty-three, chapter nineteen of this
code; lottery or racetrack video lottery authorized under
articles twenty-two and twenty-two-a of this chapter; or bingo,
raffles or games of skill or chance authorized under articles
twenty and twenty-one, chapter forty-seven of this code.
§29-25-3. Definitions.
As used in this article unless the context otherwise
requires, the following words and phrases have the meanings
indicated:
(a) "Adjusted gross receipts" mean the gross receipts of a
gaming facility less winnings paid to wagerers.
(b) "Applicant" means any person applying for a license.
(c) "Authorized game of chance" includes baccarat, twenty-one (blackjack), poker, craps, roulette, wheel of fortune
or any other similar Monte Carlo style table game expressly
authorized by rule of the division, and expressly excludes slot
machines, electronic terminal simulations of games of chance,
punch board, faro, keno, numbers ticket, push card, jar ticket,
pull tab or similar games.
(d) "Controlling interest" means:
(1) For a partnership, an interest as a general or limited
partner;
(2) For a corporation, an interest of more than fifty
percent of the stock in the corporation; and
(3) For any other entity, an ownership interest of more than
fifty percent in the entity.
(e) "Controlling person" means, with respect to another
person, any person directly or indirectly owning or holding a
controlling interest in another person.
(f) "Division" means the limited gaming oversight division
of the West Virginia department of tax and revenue created and
authorized by this article.
(g) "Gaming devices and supplies" mean gaming tables for all
authorized games of chance, roulette wheels, cards, dice, chips,
tokens, markers or any other device, mechanism or equipment or
related supplies utilized in the operation of an authorized game
of chance.
(h) "Gaming facility" means a designated area on the
premises of an historic resort hotel in which authorized games of
chance are conducted by a gaming licensee.
(IIi) "Gaming licensee" means the licensed operator of a
gaming facility.
(j) "Gross receipts" mean the total amount of money
exchanged for the purchase of chips, tokens, or electronic cards
by patrons of a gaming facility.
(k) "Historic resort hotel" means a resort hotel registered
by the United States department of the interior as a national
historic landmark in its national registry of historic places
having not fewer than five hundred guest rooms under common
ownership and having substantial recreational guest amenities in
addition to the gaming facility.
(l) "License" means a license issued by the division,
including:
(1) A license to operate a gaming facility;
(2) A license to supply gaming devices and supplies to a
gaming facility; or
(3) A license to be employed in connection with the
operation of a gaming facility.
(m) "Licensed gaming facility employee" means any individual
licensed to be employed by a gaming licensee in connection with
the operation of a gaming facility.
(n) "Licensed gaming facility supplier" means a person who
is licensed by the division to engage in the business of
supplying gaming devices and supplies to a gaming facility.
(o) "Licensee" means a gaming licensee, a licensed gaming
facility supplier or a licensed gaming facility employee.
(p) "Person" means any natural person, corporation, association, partnership, limited partnership, limited liability
company or other entity, regardless of its form,
structure or nature.
(q) "State gaming fund" means the special fund in the
state treasury created in section twenty-five of this article
to which deposits and disbursements are made and from which the
operating costs of the division will be disbursed and for other
activities as specified pursuant to this article.
§29-25-4. Establishment of limited gaming oversight division.
There is hereby established within the department of tax
and revenue a separate division to be known as the limited
gaming oversight division which has the powers and duties
specified in this article. Its jurisdiction extends to every
person involved in the operations of a gaming facility in this
state.
§29-25-5. Division duties and powers.
(a)
Duties. -- In addition to the duties set forth
elsewhere in this article, the division shall:
(1) Establish standards for gaming devices and supplies;
(2) Approve rules for all authorized games of chance
proposed to be operated by a gaming licensee;
(3) Establish standards governing gaming facilities
generally, including the maintenance of financial books and
records;
(4) Provide staff to supervise, inspect and monitor the
operation of any gaming facility, including inspection of
gaming devices and supplies used in the operation to assure
continuous compliance with all rules of the division and
provisions of this article;
(5) Establish minimum levels of insurance to be maintained
with respect to a gaming facility;
(6) Investigate applicants to determine eligibility for
any license and, where appropriate, select among competing
applicants;
(7) Designate appropriate classifications of personnel to
be employed in the operation of a gaming facility and establish
appropriate licensing standards within such classifications;
(8) Issue all licenses;
(9) Charge and collect the taxes and fees authorized,
required or specified in this article and receive, accept and
pay all taxes and fees collected under this article into the
state gaming fund;
(10) Maintain a record of all licenses issued;
(11) Keep a public record of all division actions and
proceedings; and
(12) 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.
(b)
Powers. -- In addition to the powers set forth elsewhere in this article, the division has the following
powers:
(1) Sue to enforce any provision of this article by
injunction;
(2) Hold hearings, administer oaths and issue subpoenas
for the attendance of a witness to testify and to produce
evidence;
(3) Enter a gaming facility at any time and without notice
to ensure that the rules of the division are strictly complied
with;
(4) For cause, bar any person from entering or
participating in any capacity in the operation of a gaming
facility; and
(5) Exercise any other powers as may be necessary to
effectuate the provisions of this article.
§29-25-6. Appointment of division director; compensation.
(a)
Appointment. -- There is hereby created the position
of director of the division, whose duties include the
management and administration of the division. The division
director shall:
(1) Be appointed by the secretary of the West Virginia
department of tax and revenue within sixty days after the
effective date of this article;
(2) Serve at the pleasure of the governor;
(3) Be of good and honest repute and of sound integrity,
and shall undergo a thorough background investigation prior to
appointment, including fingerprinting and check of criminal records; and
(4) Neither directly nor indirectly, including through any
spouse, child or parent, hold any position with or have any
financial interest in any licensee.
(b)
Compensation. -- The division director shall be paid a
salary of forty-five thousand dollars as well as reimbursement
for expenses in accordance with the code and state regulations
relating to travel and expenses. All compensation of the
division director shall be paid from the state gaming fund.
§29-25-7. Appointment of division staff; conditions of
employment.
With the approval of the secretary of the West Virginia
department of tax and revenue, the division director shall
appoint such professional, clerical, technical and
administrative personnel, who shall be state employees hired in
accordance with article six, chapter twenty-nine of the code,
as may be necessary to carry out the provisions of this
article. Prior to his or her appointment, each staff person
shall undergo a thorough background investigation, including
fingerprinting and a check of criminal records. No employee
may either directly or indirectly hold any financial interest
in any person licensed under this article.
§29-25-8. Rules.
The division shall propose legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code as are necessary to provide for implementation and
enforcement of the provisions of this article. Any rules proposed by the division before the first day of September,
one thousand nine hundred ninety-seven, may be by emergency
rule.
§29-25-9. Law enforcement.
(a)
Generally. -- At the request of the division director,
the law-enforcement officers of the state, any municipality
located near the gaming facility and of the county shall
provide assistance to the division to enforce the provisions of
this article.
(b)
Costs. -- The actual cost of services provided by law-
enforcement officers of the state in connection with
enforcement of the provisions of this article shall be paid
from the state gaming fund, which cost shall include all costs
of required training and equipment as well as salary, benefits
and other direct costs of additional required personnel. The
payments shall be made in accordance with established
procedures for the transfer of funds to the appropriate fund of
the state police.
The costs of services related to a gaming facility
provided by law-enforcement officers of the county in which the
gaming facility is located, which costs shall include all costs
of required training and equipment as well as salary, benefits
and other direct costs of additional personnel, shall be paid
from that portion of the state gaming fund allocated to the
county.
§29-25-10. Local option.
(a) No gaming facility may be licensed to operate in a county unless and until the county commission of the county
holds an election on the question of whether a gaming facility
may be operated within the county. The election shall be
determined by a vote of the resident voters of the county in
which the facility is proposed to be located.
Any local option election to approve or disapprove of the
proposed authorization of a gaming facility within a county
shall be in accordance with the procedures as may be adopted by
the division. The local option election may be held in
conjunction with a primary or general election, or at a special
election. Approval shall be by a majority of the voters
casting votes on the question of approval or disapproval of
gaming facility operations at the election.
If a majority has voted "no", another election on the
issue may not be held for a period of one hundred four weeks.
If a majority has voted "yes" another local option election may
not be held for a period of five years. A local option
election may thereafter be held if a written petition of
qualified voters residing within the county equal to at least
five percent of the number of persons who were registered to
vote in the next preceding general election is received by the
county commission of the county in which the gaming facility is
to be located. The petition may be in any number of
counterparts. The aforesaid election shall take place at the
next primary or general election which is scheduled to take
place at least ninety days following receipt by the county
commission of the petition required by this subsection:
Provided, That no issue shall be placed on the ballot until all
statutory notice requirements have been met:
Provided, however,
That no subsequent disapproval shall take effect until after
the expiration of the five-year licensing period in effect at
the time of the referendum.
(b) No local law or regulation providing any penalty,
disability, restriction, regulation or prohibition for
operating a gaming facility or supplying a gaming facility may
be enacted, and the provisions of this article preempt all
regulations, rules, ordinances and laws of any county or
municipality in conflict herewith.
(c) Except as specifically provided in this article, no
other fees or taxes may be imposed by a local governing body.
§29-25-11. Licenses required.
(a) A person may not engage in any activity in connection
with a gaming facility in this state for which a license is
required by subsection (b) of this section unless the person
has been licensed by the division in accordance with this
article.
(b) Licenses are required for the following purposes:
(1) For any person engaging in the business of operating a
gaming facility in the state;
(2) For any person engaging in the business of supplying a
gaming facility in the state if the business generates in
excess of fifty thousand dollars annually;
(3) For any individual employed by a gaming licensee in
connection with the operation of a gaming facility in the state.
(c) Any license required under this article shall be in
addition to all other licenses or permits otherwise required by
applicable law.
§29-25-12. License to operate a gaming facility.
(a)
Single license. -- The division
shall issue only one
license to operate one gaming facility in the state.
(b)
Applicant qualifications. -- An applicant must be the
owner of an existing historic resort hotel in which the gaming
facility is to be located, and the resort hotel must be located
within the jurisdiction of a county approving the operation of
a gaming facility in accordance with section ten of this
article. Each applicant shall meet the qualifications and
requirements set forth in this article and in rules adopted by
the division. In determining whether to grant a license to
operate a gaming facility to an applicant, the division shall
consider:
(1) The character, reputation, experience and financial
integrity of the applicant and any controlling person of the
applicant;
(2) Whether the applicant has adequate capital to
construct and maintain the proposed gaming facility for the
duration of a license;
(3) The extent to which the applicant meets standards
contained in rules adopted by the division relating to public
safety or other standards; and
(4) The plan submitted by the applicant regarding employment levels and the extent to which the submitted plan
demonstrates an ability on the part of the applicant to convert
at least one hundred twenty part-time jobs into full-time jobs
and an ability to create seventy new jobs at the historic
resort hotel all with a salary and benefit package averaging at
least twenty-six thousand dollars annually.
(c)
Conditions attached to license. -- A license to
operate a gaming facility may only be granted to an applicant
upon the express condition that:
(1) The licensee may not enter into any management
contract, understanding or arrangement of any kind which would
act to permit any person other than the licensee to operate a
licensed gaming facility unless the management contract,
understanding or arrangement is in writing and has been
approved by the division, which approval may be conditioned
upon successful completion of a thorough background
investigation at the expense of the licensee; and
(2) The licensee may not in any manner permit a person
other than the licensee to have a share, percentage or
proportion of the net profits generated from the operation of a
gaming facility.
(d)
License application requirements. -- An applicant for
a license to operate a gaming facility shall:
(1) Submit an application to the division on a form
prescribed by the division, which form shall include:
(A) Information concerning the applicant and of any
controlling person of the applicant sufficient to serve as a basis for a thorough background check;
(B) Subject to the provisions of subsection (e) of this
section with respect to publicly traded corporations, the
identity of all stockholders or other persons having a
financial interest in either the applicant or any controlling
person of the applicant and the identity of each director or
executive officer of the applicant and of any controlling
person of the applicant;
(C) The identity of the historic resort hotel at which the
gaming facility is to be located, including identification of
the county in which the historic resort hotel is located; and
(D) Any other information designated by the division as
appropriate to assist it in determining whether a license
should be issued;
(2) Pay to the division a nonrefundable application fee
for deposit into the state gaming fund in the amount of fifty
thousand dollars;
(3) Pay to the division an investigative fee for deposit
in the state gaming fund in the amount of twenty thousand
dollars.
(e)
Publicly traded corporations. -- In the event that an
applicant or any controlling person of an applicant is a
publicly traded corporation, then information otherwise
required to be furnished by an applicant with respect to
stockholders, directors and executive officers of the publicly
traded corporation shall be limited to the information
concerning only those executive officers of the publicly traded corporation whose ongoing and regular responsibilities relate
or are expected to relate directly to the operation or
oversight of the gaming facility. "Publicly traded
corporation" as used herein means any corporation or other
legal entity except a natural person which has one or more
classes of securities registered pursuant to section twelve of
the Securities Exchange Act of 1934, as amended (15 U.S.C.
§78), or is an issuer subject to section fifteen-d of the act.
(f)
Gaming facility qualifications. -- An applicant for
the license to operate a gaming facility must demonstrate that
the gaming facility will: (1) Be accessible to disabled
individuals; (2) not constitute the main entrance to the
historic resort hotel; (3) be licensed in accordance with all
other applicable federal, state and local laws; and (4) meet
any other qualifications specified by rules adopted by the
division.
(g)
Investigative fee. -- The investigative fee paid by an
applicant at the time of submitting an application shall be
applied to the cost of any investigation relating to the
applicant required under this article.
(1) If the cost of the investigation is greater than
twenty thousand dollars, the investigative agency shall show
cause for the additional cost. The applicant shall be required
to pay the additional costs to the extent approved by the
division, but not to exceed a total investigative fee of eighty
thousand dollars;
(2) If the cost of the investigation is less than the aggregate investigative fee paid by an applicant, the division
shall refund the difference.
(h)
Surety bond requirement. -- The licensed operator of a
gaming facility shall execute a surety bond to be given to the
state to guarantee the licensee faithfully makes the payments,
keeps books and records, makes reports and conducts gaming in
the licensee's gaming facility in accordance with this article
and pursuant to rules adopted by the division. The surety bond
shall be:
(1) In the amount of five million dollars;
(2) In a form approved by the division; and
(3) With a surety approved by the division.
The bond must remain in effect during the term of the
license, and may not be canceled by a surety on less than
thirty days notice in writing to the division. The total and
aggregate liability of the surety on the bond is limited to the
amount specified in the bond.
(i)
Authorization of license. -- The license to operate a
gaming facility authorizes the licensee to engage in the
business of operating a gaming facility while the license is
effective. Without prior authorization by the division, the
license to operate a gaming facility is not transferable or
assignable and cannot be sold or pledged as collateral.
(j)
Audits. -- The licensed gaming facility operator shall
submit to the division an annual audit, by a certified public
accountant licensed in the state of West Virginia, of the
financial transactions and condition of the licensee's total operations. The audit shall be in accordance with generally
accepted auditing principles.
(k)
Annual license maintenance fee. -- The licensed gaming
facility operator shall pay to the division an annual license
maintenance fee of five thousand dollars.
§29-25-13. Reports by licensee.
(a) The gaming licensee shall file an annual balance sheet
and profit and loss statement pertaining to the licensee's
operation of a gaming facility in this state. The gaming
licensee also shall file an annual statement identifying each
controlling person of the licensee and all stockholders,
partners, officers or directors for the licensee and any
controlling person:
Provided, That if the gaming licensee or
controlling person is a publicly traded corporation, then as to
the publicly traded corporation the annual report shall be
required to identify only executive officers whose ongoing
regular duties relate directly to the operation of the gaming
facility. The gaming licensee shall file further reports with
the division as the division may require by rule.
(b) The gaming licensee shall maintain daily records
showing the following:
(1) The total number of patrons of the gaming facility;
and
(2) The gross receipts and the adjusted gross receipts.
§29-25-14. License to supply gaming facility.
(a)
Licenses. -- The division shall issue a license to
each applicant for a license to supply a gaming facility who meets the requirements of this section.
(b)
License qualifications. -- To qualify for a license,
an applicant shall meet the requirements of this section. Each
applicant who is an individual and each individual who is a
controlling person of an applicant that is not an individual
shall be of good moral character and reputation, and shall have
the necessary experience and financial ability to successfully
carry out the functions of a gaming facility supplier. The
division may adopt rules establishing additional requirements
for a gaming facility supplier.
(c)
Supplier specifications. -- An applicant for a license
to supply gaming devices, equipment and supplies to a gaming
facility shall demonstrate that the gaming devices, equipment
and supplies that the applicant plans to sell or lease to the
licensed operator of the gaming facility, conform or will
conform to standards established by rules of the division and
applicable state law.
(d)
License application requirements. -- An applicant for
a license shall:
(1) Submit an application to the division on the form that
the division requires;
(2) Pay to the division a nonrefundable application fee
for deposit into the state gaming fund in the amount of five
thousand dollars; and
(3) Pay to the division an investigative fee for deposit
into the state gaming fund in the amount of ten thousand
dollars, or a lesser amount as the division upon application may conditionally approve in a particular case.
(e)
Investigative fee. -- The investigative fee paid by an
applicant for a license to supply a gaming facility shall be
applied to the cost of any investigation of the applicant
required under this article.
(1) If the costs of the investigation of an applicant are
greater than ten thousand dollars, or a lesser investigative
fee as may have been conditionally approved by the division,
the investigative agency shall show cause for the additional
cost. If the division approves, the applicant shall pay the
additional costs as required by the division, but not to exceed
a total investigative fee of fifty thousand dollars.
(2) If the costs of the investigation of an applicant are
less than the aggregate investigative fee paid to the division,
the division shall refund the difference.
(f)
Authorization of licensee. -- A license to supply a
gaming facility authorizes the licensee to engage in the
business of selling gaming devices and supplies to a gaming
facility while the license is effective.
(g)
Inventory. -- A licensed gaming facility supplier
shall submit a list of all equipment, gaming devices and
supplies sold or delivered to a gaming facility in this state.
(h)
Annual license maintenance fee. -- A licensed gaming
facility supplier shall pay to the division an annual license
maintenance fee of five thousand dollars.
§29-25-15. License to be employed by operator of gaming
facility.
(a)
Licenses. -- The division shall issue a license to
each applicant for a license to be employed in the operation of
the gaming facility who meets the requirements of this section.
(b)
License qualifications. -- To qualify for a license to
be employed in the gaming facility, the applicant must be an
individual of good moral character and reputation. The
division by rule may specify additional requirements to be met
by applicants based on the specific job classifications in
which the applicant is to be employed.
(c)
License application requirements. -- An applicant for
a license to be employed in the operation of the gaming
facility shall:
(1) Submit an application to the division on the form that
the division requires, including adequate information to serve
as a basis for a thorough background check;
(2) Pay to the division a nonrefundable application fee
for deposit into the state gaming fund in the amount of three
hundred dollars, which fee may be paid on behalf of the
applicant by the employer; and
(3) Pay to the division a nonrefundable investigative fee
for deposit into the state gaming division in an amount to be
fixed by the division by rule, which fee may be paid on behalf
of the applicant by the employer.
(d)
Authorization of licensee. -- A license to be employed
by a gaming facility authorizes the licensee to be so employed
in the capacity designated by the division with respect to the
license while the license is effective.
(e)
Annual license maintenance fee. -- Each licensed
employee shall pay to the division an annual license
maintenance fee set by the division, which maintenance fee may
vary based on the capacity designated with respect to the
licensee but in no event to exceed three hundred dollars.
§29-25-16. False statements on applications; other license
requirements and prohibitions.
(a) Any person who knowingly makes a false statement on an
application is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one hundred nor more than
five hundred dollars, or confined in the county or regional
jail not less than six months, or both fined and confined.
(b) A license may not be granted if there is substantial
evidence that the applicant for a license:
(1) Has knowingly made a false statement of a material
fact to the division;
(2) Has been suspended from operating a gambling game,
gaming device or gambling operation in another jurisdiction by
a division, board or other governmental authority of that
jurisdiction having responsibility for the regulation of
gambling or gaming activities;
(3) Has been convicted of a felony or other crime
involving moral turpitude or has otherwise demonstrated either
by a police record or other satisfactory evidence a lack of
respect for law and order;
(4) Has failed to meet any monetary obligation in
connection with a gaming facility or any other form of gaming; or
(5) In the case of an applicant for a license to operate a
gaming facility or to supply a gaming facility:
(A) Has not demonstrated financial responsibility
sufficient to meet adequately the requirements of the
enterprise proposed;
(B) Is not the true owner of the enterprise or is not the
sole owner and has not disclosed the existence or identity of
other persons who have an ownership interest in the enterprise;
or
(C) Is a corporation and five percent or more 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 and
approved by the division.
(c) In addition to any other grounds specified in this
article, and subject to the hearing provisions of section
twenty of this article, in the case of a license to operate a
gaming facility the division may deny a license to any
applicant, reprimand any licensee, or suspend or revoke a
license if the applicant or licensee or any controlling person
of the applicant or licensee knowingly employs an individual in
a senior management position who has been convicted of a felony
under the laws of this state, another state, a territory of the
United States, or the United States or employs any individual
in a senior management position who has had a license relating
to the operation of a gaming facility revoked by this state or any other state.
(d) Character references may be required of persons
licensed, but the character references may not be obtained from
persons in the same or similar occupations or professions in
other states.
§29-25-17. Licenses; availability for inspection; change of
address.
(a) The division shall include on each license that the
division issues:
(1) The type of license;
(2) The identity and address of the licensee;
(3) The effective date of the license; and
(4) Any other information the division deems appropriate.
(b) The gaming licensee or each licensed supplier of the
gaming facility shall display the license conspicuously in its
place of business or have the license readily available for
inspection at the request of any agent of the division or of
the state police. Each holder of a license to be employed by
the gaming facility shall carry the license on his or her
person at all times when present in the gaming facility and, if
required by rules adopted by the division with respect to the
particular capacity in which the licensee is employed, have
some indicia of licensure prominently displayed on his or her
person.
(c) Each licensee shall give the division written notice
of any change of address, and any other relevant information
necessary for the maintenance of accurate records by the division.
§29-25-18. Expiration date and renewal.
(a) A license expires on the fifth anniversary of its
effective date, unless the license is renewed for additional
five-year terms as provided in this section.
(b) At least two months before a license expires, the
division shall send to the licensee, by mail to the last known
address, a renewal application form and notice that states:
(1) The date on which the current license expires;
(2) The date by which the division must 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 licensee may renew it
for successive additional five-year terms if the licensee:
(1) Otherwise is entitled to be licensed;
(2) Pays to the director the following renewal fee:
(A) The sum of twenty-five thousand dollars for a license
to operate a gaming facility;
(B) The sum of five thousand dollars for a license to
supply a gaming facility; and
(C) As set by the division by rule in the case of a
license to be employed by an operator of a gaming facility, not
to exceed three hundred dollars, which renewal fee may be paid
on behalf of the licensee by the employer; and
(3) Submits to the division a renewal application in the
form that the division requires accompanied by satisfactory evidence of compliance with any additional requirements set by
rules of the division for license renewal.
(d) The division shall renew the license of each licensee
who meets the requirements of this section.
§29-25-19. License denial, revocation and reprimand.
(a) The division may deny a license to any applicant,
reprimand any licensee, or suspend or revoke a license if the
applicant or licensee, or any controlling person of the
applicant or license:
(1) Fraudulently or deceptively obtains or attempts to
obtain a license for the applicant or licensee or for another;
(2) Fraudulently or deceptively uses a license; or
(3) Is convicted of a felony under the laws of this state,
another state, a territory of the United States or the United
States.
(b) Instead of or in addition to reprimanding a licensee
or suspending or revoking a license, the division may impose a
civil penalty under section twenty-nine of this article.
§29-25-20. Hearing procedures.
Except as otherwise provided by law, before the division
takes any action under the provisions of section nineteen of
this article, it shall give the persons against whom the action
is contemplated an opportunity for a hearing before the
division.
The division shall give notice and hold the hearing in
accordance with state law, the 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 person may be
represented at the hearing by counsel.
If a person fails to comply with a subpoena issued under
this section, on petition of the division, the circuit court
may compel obedience to the subpoena. If after due notice the
person against whom the action is contemplated fails or refuses
to appear, the division may hear and determine the matter.
Any person aggrieved by a final decision of the division
in a contested case, as defined in chapter twenty-nine-a of
this code, may take an appeal as allowed in that chapter.
§29-25-21. Consent to warrantless search.
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, any licensee
shall consent to any search without a warrant by agents of the
division or of the state police designated by the division
director of the licensee's person, personal property and
effects, and premises which are located in the gaming facility
or adjacent facilities under the control of the licensee, to
inspect or investigate for criminal violations of this article
or violations of rules adopted by the division.
§29-25-22. Consent to presence of law-enforcement officers;
wagering limits.
(a)
Consent to presence of law-enforcement officers. --
Any individual entering a gaming facility shall be advised by
the posting of a notice or other suitable means of the possible
presence of state, county or municipal law-enforcement officers, and by entering the gaming facility impliedly
consents to the presence of the law-enforcement officers.
(b)
Setting of wagering limits. -- The operator of a
gaming facility may set minimum and maximum wagers for any
authorized game of chance.
§29-25-23. Taxes.
(a)
Imposition and rate. -- There is hereby levied and
shall be collected annual privilege tax against a gaming
licensee in an amount to be determined by application of the
rate against adjusted gross receipts of the licensed gaming
facility. The rate of tax is seventeen percent. This tax
shall be in addition to all other taxes and fees imposed:
Provided, That the consumer sales tax imposed pursuant to
article fifteen, chapter eleven of this code shall not apply to
the proceeds from any wagering with respect to games of chance
authorized by this article.
(b)
Computation and payment of tax. -- The taxes levied
under the provisions of this section shall be due and payable
in monthly installments on or before the twenty-first day of
the month following the month in which the tax is accrued. The
taxpayer shall, on or before the twenty-first day of each month
make out and mail to the limited gaming oversight division a
return for the preceding month, in the form prescribed by the
tax commissioner, showing: (1) The total gross receipts from
the gaming facility for that month and the adjusted gross
receipts; (2) the amount of tax for which the taxpayer is
liable; and (3) any further information necessary in the computation and collection of the tax which the tax
commissioner or the division may require. Payment of the
amount of tax due shall accompany the return. All payments
made pursuant to this section shall be deposited in the state
gaming fund.
(c)
Tax procedures. -- Each and every provision of the
"West Virginia Tax Procedure and Administration Act" set forth
in article ten, chapter eleven of this code shall apply to the
tax imposed by this section with like effect as if the act were
applicable only to the tax imposed by this section and were set
forth in extenso in this section.
(d)
Prohibition on credits. -- Notwithstanding any other
provision of this code to the contrary, no credits may be
allowed against any tax imposed on any taxpayer by this code
for an investment in gaming devices and supplies, for an
investment in real property which would be directly utilized
for the operation of a gaming facility or for any jobs created
at a gaming facility.
§29-25-24. State gaming fund; allocation of adjusted gross
receipts.
(a) There is hereby created a special fund in the state
treasury which shall be designated and known as the "state
gaming fund." All revenues received from licenses and
applications under this article and all tax revenues from the
tax imposed under section twenty-three of this article shall be
deposited with the state treasurer and placed in the state
gaming fund. After payments are made pursuant to subsections (b) and (c) of this section, expenditures from the fund shall
only be authorized upon appropriation by the Legislature. The
revenue shall be disbursed in the manner herein provided for
the purpose stated herein and may not be treated by the auditor
and treasurer as part of the general revenue of the state. The
fund shall be an interest bearing account with interest to be
credited to and deposited in the state gaming fund.
(b) An amount equal to three and one-half percent of the
adjusted gross receipts of the gaming facility shall be paid to
the county wherein the gaming facility is located, to be
allocated by the county commission of the county. At least
fifty percent of this amount shall be used for improvement to
county infrastructure.
(c) An amount equal to two percent of the adjusted gross
receipts of the gaming facility shall be transferred from the
state gaming fund to the treasurer for deposit in the
"municipalities revenue fund" which is hereby created in the
state treasury and shall be distributed quarterly among all the
municipalities in the county wherein the gaming facility is
located in the manner provided in this subsection. Each
municipality is entitled to an amount determined by multiplying
the total of the "municipalities revenue fund" by a fraction,
the numerator of which is the total population of the
municipality and the denominator of which is the population of
all municipalities within the county. After determining the
amount on a quarterly basis, a warrant of the state auditor for
the sum due to the municipality shall issue and a check drawn thereon making payment of the sum shall thereafter be
distributed to the municipality. Moneys distributed to any
municipality under the provisions of this subsection shall be
deposited in the municipality's general fund and may be
expended by the governing body of the municipality for purposes
as the governing body shall determine to be in the best
interest of the municipality and as otherwise provided by law.
(d) All expenses of the division shall be paid from the
state gaming fund, including reimbursement of the state police
for activities performed at the request of the division in
connection with background investigations or enforcement
activities pursuant to this article. At no time may the
division expenses exceed fifteen percent of the total of the
annual revenue received from the licensee under this article,
including all license fees, taxes or other amounts required to
be deposited in the state gaming fund.
(e) The balance of the state gaming fund shall be
allocated in a manner as may be determined from time to time by
the Legislature for the same purposes as authorized for
expenditure of lottery funds as established in section
eighteen, article twenty-two of this chapter or for the purpose
of reducing any unfunded liability in any state retirement
system.
§29-25-25. Prohibition on unauthorized wagering.
(a) A gaming licensee may not permit any form of wagering
except as authorized under this article.
(b) A gaming licensee shall receive wagers only from an individual present in the licensed gaming facility.
(c) All gaming facility operations shall utilize a
cashless wagering system whereby all players' money is
converted to tokens, electronic cards or chips at the request
of the wagerer which can only be used for wagering in the
licensed gaming facility, and wagering may not be conducted
with money or other negotiable currency.
(d) The gaming licensee may not loan to any person money
or any other thing of value for the purpose of permitting that
person to participate in any authorized game of chance.
(e) The gaming licensee is prohibited from offering any
property or service, other than incidental food and beverages,
to any person as an inducement to participate in a game of
chance. This prohibition includes the offering of
complimentary rooms in exchange for a guest participating in
any game of chance at the gaming facility.
§29-25-26. Individual gaming restrictions.
An individual may not enter the gaming facility or remain
in the gaming facility to participate in authorized games of
chance in a gaming facility:
(a) If the individual is not a registered overnight guest
in the historic resort hotel on whose premises the gaming
facility is located;
(b) If the individual is under the age of twenty-one
years;
(c) If the individual is intoxicated;
(d) If the individual is determined by the gaming facility operator or the division to be unruly, disruptive or otherwise
interfering with operation of the gaming facility; or to be
likely to commit, or to attempt to commit, a violation of this
article; or
(e) The individual has been barred by the division from
entering a gaming facility.
§29-25-27. Offenses and penalties.
(a) A gaming licensee is guilty of unlawful operation of a
game of chance when:
(1) The licensee operates a game of chance in any location
other than a gaming facility;
(2) The licensee acts, or employs another person to act,
as a shill or decoy to encourage participation in a game of
chance in a gaming facility;
(3) The licensee knowingly permits an individual under the
age of twenty-one years of age to enter or remain in a gaming
facility for the purpose of making a wager; or
(4) The licensee exchanges tokens, chips or other forms of
credit to be used for wagering in a gaming facility for
anything of value except in exchange for money.
(b) A person is guilty of felonious wager when:
(1) The person offers, promises or gives anything of value
or benefit to a person who is connected with a gaming facility,
pursuant to an agreement or arrangement or with intent that the
promise or thing of value or benefit will influence the actions
of the person to whom the offer, promise, or gift was made in
order to affect or attempt to affect the outcome of an
authorized game of chance, or to influence official action of
the division. For the purposes of this subdivision and
subdivision (2) of this subsection, the term "person who is
connected with a gaming facility" includes, but not limited to,
an officer or employee of a licensee;
(2) The person solicits or knowingly accepts or receives a
promise of anything of value or benefit while the person is connected with a gaming facility, pursuant to an understanding
or arrangement or with the intent that the promise or thing of
value or benefit will influence the actions of the person to
affect or attempt to affect the outcome of an authorized game
of chance, or to influence official action of the division;
(3) The person uses or possesses with the intent to use a
device to assist:
(A) In projecting the outcome of an authorized game of
chance;
(B) In keeping track of cards played or in play;
(C) In analyzing the probability of the occurrence of an
event relating to an authorized game of chance; or
(D) In analyzing the strategy for playing or betting to be
used in an authorized game of chance, except as permitted by
the division;
(4) The person cheats at an authorized game of chance in a
gaming facility;
(5) The person manufactures, sells, or distributes any
cards, chips, dice, game or device which is intended to be used
to violate any provision of this article;
(6) The person instructs a person in cheating or in the
use of a device for that purpose with the knowledge or intent
that the information or use conveyed may be employed to violate
any provision of this article;
(7) The person places a bet after acquiring knowledge, not available to all players, of the outcome of the game of chance
which is subject of the bet, or aids a person in acquiring the
knowledge for the purpose of placing a bet contingent on that
outcome;
(8) The person claims, collects, takes, or attempts to
claim, collect or take, money or anything of value into or from
a gaming facility, with intent to defraud, without having made
a wager contingent on winning a game of chance, or claims,
collects, or takes an amount of money or thing of value of
greater value than the amount won;
(9) The person uses counterfeit chips or tokens to place a
wager in a gaming facility;
(10) The person knowingly uses any medium other than
chips, tokens or other methods of credit approved by the
division to place a wager in a gaming facility;
(11) The person, not a gaming licensee or employee or
agent of a gaming licensee acting in furtherance of the gaming
licensee's interests, has in his or her possession any device
intended to be used to violate a provision of this article; or
(12) The person, not a gaming licensee or agent of a
gaming licensee acting in furtherance of the gaming licensee's
interests, has in his or her possession any key or device
designed for the purpose of opening, entering, or affecting the
operation of an authorized game of chance, drop box, or an
electronic or mechanical device connected with or used in connection with an authorized game of chance in a gaming
facility or for removing coins, tokens, chips or other contents
therefrom.
(c) Any person who violates the provisions of subsection
(a) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars or confined in a county or regional jail for not more
than six months.
(d) Any person who violates the provisions of subsection
(b) of this section is guilty of a felony and, upon conviction
thereof, shall be fined not less than five thousand dollars nor
more than ten thousand dollars and committed to the department
of corrections of a definite term of imprisonment of not less
than one year nor more than five years.
§29-25-28. 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) As a bribe intended to affect the outcome of an
authorized game of chance in a gaming facility; or
(2) In exchange for or to facilitate a violation of this
article.
(b) Subsection (a) of this section does not apply if the act or omission which would give rise to the forfeiture was
committed or omitted without knowledge or consent of the owner
of the property to be forfeited.
§29-25-29. Civil penalties.
The division may impose on a person who violates a
provision of this article a civil penalty not to exceed five
thousand dollars for each violation, whether or not the person
is licensed under this article.