ENGROSSED
Senate Bill No. 531
(By Senators Schoonover, By Request, Buckalew, By Request,
Love, By Request, Dugan, By Request, Sprouse, By Request and
Hunter, By Request)
____________
[Introduced March 24, 1997; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
____________
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 a
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, credits and refunds paid to
patrons.
(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,
slot machines, electronic terminal simulations of games of chance
or any other similar monte carlo style table game expressly
authorized by rule of the commission, punchboard, 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) "Commission" means the state lottery commission created
in section four, article twenty-two of chapter twenty-nine of
this Code.
(g) "Gaming devices and supplies" mean gaming tables for all
authorized games of chance, roulette wheels, cards, dice, chips,
tokens, markers, slot machines, 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.
(I) "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,
and all money inserted into slot machines 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 commission,
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 commission 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-three of this article to which
deposits and disbursements are made and from which the operating
costs of the commission will be disbursed and for other
activities as specified pursuant to this article.
§29-25-4. Oversight by lottery commission.
The state lottery commission shall have the powers and
duties specified in this article in addition to any other powers
and duties it may otherwise have under the provisions of this
code.
§29-25-5. Additional duties and powers of commission.
(a)
Duties. -- In addition to the duties set forth
elsewhere in this code, the commission 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 commission 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 commission 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 code, the commission 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 commission 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 staff; conditions of employment.
The lottery director, under the provisions of section six,
article twenty-two, chapter twenty-nine of the code, with the
approval of the commission 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.
§29-25-7. Rules.
The commission 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 commission before the first day of September,
one thousand nine hundred ninety-seven, may be by emergency rule.
§29-25-8. Law enforcement.
(a)
Generally. -- The superintendent of the West Virginia
division of public safety shall provide assistance to the
commission to enforce the provisions of this article.
(b) The division of public safety deputy lottery director
for security and licensing shall act as a liaison between the
lottery and the division of public safety in all matters
affecting the discharge of the duties of the security and
licensing division. The division of public safety shall provide
a sworn law-enforcement officer with the rank of captain or
higher trained and qualified to act as the deputy lottery
director for the lottery's security and licensing division. The number of members assigned hereunder may be increased or
decreased by mutual agreement between the superintendent and the
director. The superintendent, by agreement with the director,
may work members permanently or temporarily assigned to the
commission in excess of a normal work week on an overtime basis
and may temporarily assign additional members to duty in case of
emergencies, unusual conditions and as circumstances may require.
The division of public safety shall supply complete uniforms and
equipment for each member assigned including firearms, rifles or
other heavy-duty firearms generally issued to or used by members:
Provided, That the commission shall not be required to reimburse
the division of public safety for specialized equipment not
related to ordinary police or security work contemplated by the
scope of this section. The division of public safety shall
furnish to the commission immediate notification of the
superintendent's intention to withdraw one member from the deputy
director post and the substitution of another member to fill the
post. Any such notification shall include the identity and
background of the member to be nominated for the post. The
division of public safety shall furnish additional
recapitulations of its lottery activities hereunder as determined
to be necessary or desirable by mutual agreement of the
commission and the division of public safety. A member assigned by the superintendent and approved by the director shall be
appointed by the director to act as the deputy director of the
lottery for the security and licensing division. In that
capacity, he or she shall supervise the security and licensing
division's classified employees, shall designate some or all of
those employees as commission enforcement agents and shall grant
as necessary the powers of a member of the division of public
safety to those enforcement agents as so empowered through any
existing gubernatorial proclamation. The member assigned to be
the deputy director shall have unrestricted access to all
commission files and materials and shall have the right to attend
any meeting or conference in which the commission is a
participant:
Provided, That this access may be restricted by the
director for meetings dealing only with personnel matters.
(c)
Costs -- The commission shall reimburse the division of
public safety for actual costs incurred in the performance of the
obligations assumed by the division of public safety which costs
shall be ascertained and reimbursed as outlined in this
subsection. Reimbursable costs are further identified as
personnel costs which shall include base salaries, overtime,
subsistence allowances, retirement contributions, health and
insurance contributions, equipment costs which shall include
vehicle rental, police radio and cellular telephone costs, vests, weapons, clothing allowance and related expenses, investigation
expenses and travel expenses. The superintendent shall provide
the director a schedule listing the most recent costs for
personnel and equipment. The division of public safety having
heretofore trained the member presently acting as deputy director
and having been reimbursed for the cost of such training shall
not be entitled for reimbursement for training costs except as
expressly agreed to in advance by the commission. A payment
shall be made by the lottery to the division of public safety for
each additional member assigned under this section as soon as
such additional member has reported for duty, which amount shall
be the actual training cost incurred by the division of public
safety at the time of assignment. The rates to be charged for
services of any member assigned to the commission shall be as
prescribed by section five, article two, chapter fifteen of the
code, and for all actual expenses incurred by the division of
public safety for placement and maintenance of the member. The
commission shall assume the liability for credits for sick leave
and annual leave previously earned by members assigned to the
commission, and the division of public safety shall assume such
credits earned while on duty in the commission by members
transferred to other duties:
Provided, That if the commission is
dissatisfied with the operation of this provision, the director may, by notice in writing to the superintendent, require that
thenceforth the division of public safety bear the expense of
members on sick leave or annual leave only to the extent that
credits therefor are earned while assigned to the commission. In
addition to reimbursing division of public safety as set forth in
this section, the commission shall provide secretarial
assistance, office space and appropriate business equipment at
commission headquarters, and complete facilities for mobile
cellular telephone communications. The division of public safety
shall render invoices to the commission monthly for direct
payroll and payroll related expenses and for all other actual
expenses incurred by the division of public safety in behalf of
the commission. The division of public safety shall make
available on request, to authorize representatives of the
commission, its pertinent records relating to the above invoices.
The commission shall properly pay the amount due on such invoices
to the division of public safety.
§29-25-9. 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
commission. 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.
§29-25-10. 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 commission 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.
§29-25-11. License to operate a gaming facility.
(a)
Single license. -- The commission
shall issue only one
license to operate a gaming facility in the state. If the one
license limitation in the preceding sentence is found to be
unconstitutional in a final, non-appealable order by a court of
competent jurisdiction, the commission shall have no authority to
issue any license under this article and, in such event, the
provisions of this article shall not be severable. The
Legislature intends that no more than one license to operate one
gaming facility in this state shall be authorized in any event.
(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 nine of this article.
Each applicant shall meet the qualifications and requirements set
forth in this article and in rules adopted by the commission. In
determining whether to grant a license to operate a gaming facility to an applicant, the commission 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 commission 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
commission, which approval may be conditioned upon successful
completion of a thorough background investigation at the expense
of the licensee;
(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; and
(3) The licensee shall provide adequate office space and
facilities including communications, surveillance and other
facilities from time to time requested by the deputy lottery
director for security and licensing or the superintendent of the
division of public safety.
(d)
License application requirements. -- An applicant for a
license to operate a gaming facility shall:
(1) Submit an application to the commission on a form
prescribed by the commission, 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 commission as
appropriate to assist it in determining whether a license should
be issued;
(2) Pay to the commission a non refundable application fee
for deposit into the state gaming fund in the amount of fifty
thousand dollars;
(3) Pay to the commission 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 a
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 commission.
(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 commission, but not to exceed a total investigative fee of eighty thousand
dollars; and
(2) If the cost of the investigation is less than the
aggregate investigative fee paid by an applicant, the commission
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 commission. The surety bond
shall be:
(1) In the amount of five million dollars;
(2) In a form approved by the commission; and
(3) With a surety approved by the commission.
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 commission. The total and
aggregate liability of the surety on the bond is limited to the
amount specified in the bond.
(i)
Authorization of license. -- A 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 commission, a license to
operate a gaming facility is not transferable or assignable and
cannot be sold or pledged as collateral.
(j)
Audits. -- A licensed gaming facility operator shall
submit to the commission 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 commission an annual license
maintenance fee of five thousand dollars.
§29-25-12. Reports by licensee.
(a) A 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. A 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 a 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. A gaming licensee shall
file further reports with the commission as the commission may
require by rule.
(b) A 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.
§29-25-13. License to supply gaming facility.
(a)
Licenses. -- The commission 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
commission 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 commission and
applicable state law.
(d)
License application requirements. -- An applicant for a
license shall:
(1) Submit an application to the commission on the form that
the commission requires;
(2) Pay to the commission a non refundable application fee
for deposit into the state gaming fund in the amount of five
thousand dollars; and
(3) Pay to the commission an investigative fee for deposit
into the state gaming fund in the amount of ten thousand dollars,
or a lesser amount as the commission 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 commission, the
investigative agency shall show cause for the additional cost. If the commission approves, the applicant shall pay the
additional costs as required by the commission, 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 commission,
the commission 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 commission an annual license
maintenance fee of five thousand dollars.
§29-25-14. License to be employed by operator of gaming
facility.
(a)
Licenses. -- The commission shall issue a license to
each applicant for a license to be employed in the operation of
a gaming facility who meets the requirements of this section.
(b)
License qualifications. -- To qualify for a license to
be employed in a gaming facility, the applicant must be an individual of good moral character and reputation. The
commission 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 a gaming facility
shall:
(1) Submit an application to the commission on the form that
the commission requires, including adequate information to serve
as a basis for a thorough background check;
(2) Pay to the commission a non refundable 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 commission a non refundable investigative fee
for deposit into the state gaming fund in an amount to be fixed
by the commission 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 commission with respect to the
license while the license is effective.
(e)
Annual license maintenance fee. -- Each licensed employee shall pay to the commission an annual license
maintenance fee set by the commission, which maintenance fee may
vary based on the capacity designated with respect to the
licensee but in no event to exceed three hundred dollars.
§29-25-15. 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 credible
evidence that the applicant for a license:
(1) Has knowingly made a false statement of a material fact
to the commission;
(2) Has been suspended from operating a gambling game,
gaming device or gambling operation in another jurisdiction by a
commission, 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 commission.
(c) In addition to any other grounds specified in this
article, and subject to the hearing provisions of section
nineteen of this article, in the case of a license to operate a
gaming facility the commission 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.
§29-25-16. Licenses; availability for inspection; change of
address.
(a) The commission shall include on each license that the
commission issues:
(1) The type of license;
(2) The identity and address of the licensee;
(3) The effective date of the license; and
(4) Any other information the commission deems appropriate.
(b) Each gaming licensee or licensed supplier of a 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 commission or of the state
police. Each holder of a license to be employed by a gaming
facility shall carry the license on his or her person at all times when present in a gaming facility and, if required by rules
adopted by the commission 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 commission written notice
of any change of address, and any other relevant information
necessary for the maintenance of accurate records by the
commission.
§29-25-17. 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
commission 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 commission 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 commission 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 commission 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 commission a renewal application in the
form that the commission requires accompanied by satisfactory
evidence of compliance with any additional requirements set by
rules of the commission for license renewal.
(d) The commission shall renew the license of each licensee
who meets the requirements of this section.
§29-25-18. License denial, revocation and reprimand.
(a) The commission 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 commission may impose a
civil penalty under section twenty-eight of this article.
§29-25-19. Hearing procedures.
Except as otherwise provided by law, before the commission
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 commission.
The commission 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 commission, 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 commission may hear and determine the matter.
Any person aggrieved by a final decision of the commission
in a contested case, as defined in chapter twenty-nine-a of this code, may take an appeal as allowed in that chapter.
§29-25-20. 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 commission or of
the state police designated by the commission 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
commission.
§29-25-21. 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.
§29-25-22. 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 seventy percent. This tax shall be in addition to
all other taxes and fees imposed:
Provided, That the consumers
sales and service 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 commission 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 commission 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.
§29-25-23. 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.
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 two and one-half percent of the
adjusted gross receipts of the gaming facility shall be paid from
the state gaming fund to the county wherein the gaming facility
is located, to be expended by the county commission of the county
for purposes as the county commission shall determine to be in
the best interest of the county and as otherwise provided by law.
(c) An amount equal to two and one-half percent of the
adjusted gross receipts of the gaming facility shall be held by
the treasurer 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 commission shall be paid from the
state gaming fund, including reimbursement of the division of
public safety for activities performed pursuant to this article.
At no time may the commission expenses exceed five 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) An amount equal to fifteen percent of adjusted gross
receipts of the gaming facility shall be transferred from the
state gaming fund to the treasurer for deposit in the "capital
infrastructure development fund" which is hereby created in the
state treasury. The moneys in this fund shall be expended as the
Legislature shall appropriate from time to time.
(f) An amount equal to five percent of adjusted gross
receipts of the gaming facility shall be transferred from the
state gaming fund to the treasurer for deposit in the "arts and historical preservation trust fund" which is hereby created in
the state treasury. The moneys in this fund shall be expended as
the Legislature shall appropriate from time to time.
(g) An amount equal to ten 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
"development of regional jail, juvenile detention centers fund"
which is hereby created in the state treasury. The moneys in
this fund shall be expended as the Legislature shall appropriate
from time to time.
(h) All amounts remaining in the state gaming fund after
all other payments and transfers provided in this section shall
be paid over to the general revenue fund.
§29-25-24. 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 wages only from an
individual present in a licensed gaming facility.
(c) All gaming facility operations other than slot machines
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 a
licensed gaming facility, and except for slot machines, 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.
§29-25-25. Individual gaming restrictions.
An individual may not enter a gaming facility or remain in
a 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 commission 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 commission from
entering a gaming facility.
§29-25-26. 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
commission. For the purposes of this subcommission and
subcommission (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 commission;
(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
commission;
(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 commission 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.
§29-25-27. 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.
§29-25-28. Civil penalties.
The commission 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.