§29-1-1. Division of Culture and History continued as the Department of Arts, Culture, and History; sections and commissions; purposes; definitions; effective date.

(a) The Division of Culture and History heretofore created is hereby continued as the Department of Arts, Culture, and History. The Governor shall nominate and, by and with the advice and consent of the Senate, appoint the Cabinet Secretary of Arts, Culture, and History, who shall be the chief executive officer of the department and shall be paid an annual salary as provided in §6-7-2a of this code. The secretary so appointed shall have: (1) A bachelor’s degree in one of the fine arts, social sciences, library science, or a related field; or (2) four years’ experience in the administration of museum management, public administration, arts, history, or a related field.

(b) The department shall consist of eight sections as follows:

(1) The arts section;

(2) The archives and history section;

(3) The museums section;

(4) The historic preservation section;

(5) The state library section;

(6) The National Coal Heritage Area Commission;

(7) The administrative section; and

(8) The Educational Broadcasting Commission.

(c) The department shall also consist of four citizens commissions as follows:

(1) A Commission on the Arts;

(2) A Commission on Archives and History;

(3) A Library Commission; and

(4) An Educational Broadcasting Council.

(d) The secretary shall exercise control and supervision of the department and shall be responsible for the projects, programs, and actions of each of its sections. The purpose and duty of the department is to advance, foster, and promote the creative and performing arts and crafts, including both indoor and outdoor exhibits and performances; to advance, foster, promote, identify, register, acquire, mark, and care for historical, prehistorical, archaeological, and significant architectural sites, structures, and objects in the state; to encourage the promotion, preservation, and development of significant sites, structures, and objects through the use of economic development activities such as loans, subsidies, grants, and other incentives; to coordinate all cultural, historical, and artistic activities in state government and at state-owned facilities; to acquire, preserve, and classify books, documents, records, and memorabilia of historical interest or importance; and, in general, to do all things necessary or convenient to preserve and advance the arts, humanities, culture, and history of the state. In the furtherance of these purposes and duties, the secretary shall report directly to the Governor as a secretary for both the intrinsic and extrinsic value for individuals, communities, and the economy of the arts, humanities, culture, and history in West Virginia. As such, the secretary shall represent the Department of Arts, Culture, and History as a full participating member in meetings of the secretaries of the departments created in §5F-1-2 of this code that are convened at the call of the Governor.

(e) The department has jurisdiction and control and may set and collect fees for the use of all space in the building presently known as the West Virginia Science and Culture Center, including the deck and courtyards forming an integral part thereof; the building presently known as West Virginia Independence Hall in Wheeling, including all the grounds and appurtenances thereof; “Camp Washington Carver” in Fayette County, as provided in §29-1-14 of this code; and any other sites as may be transferred to or acquired by the department. Notwithstanding any provision of this code to the contrary, beginning on and after July 1, 2018, the department shall have responsibility for, and control of, all visitor touring and visitor tour guide activities within the Capitol Building at Charleston.

(f) For the purposes of this article, “commissioner” or “curator” means the Cabinet Secretary of Arts, Culture, and History, and “division” or “department” means the Department of Arts, Culture and History. References throughout this code to the “Commissioner of Culture and History” mean the “Cabinet Secretary of Arts, Culture, and History”, and references throughout this code to the “Division of Culture and History” mean the “Department of Arts, Culture, and History”.

§29-1-1a. Transfer of powers and duties; existing contracts and obligations.

Except as otherwise provided in this article, the powers and duties of the West Virginia antiquities commission, the West Virginia arts and humanities council and the department of archives and history are hereby transferred to the Division of Culture and History. All existing contracts and obligations of the West Virginia antiquities commission, the West Virginia arts and humanities council and the department of archives and history, or relating to the present science and culture center, shall remain in full force and effect and shall be performed by the Division of Culture and History.

§29-1-1b.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-1-2. General powers of curator.

The curator shall assign and allocate space in all facilities assigned to the department and all space in the building presently known as the West Virginia Science and Culture Center, and any other buildings or sites under the control of the curator, and may, in accordance with the provisions of chapter twenty-nine-a of this code, prescribe rules, regulations and fees for the use and occupancy of said facilities, including tours.

The curator shall coordinate the operations and affairs of the sections and commissions of the department and assign each section or commission responsibilities according to criteria the curator deems most efficient, productive and best calculated to carry out the purposes of this article. The curator shall provide to the fullest extent possible for centralization and coordination of the bookkeeping, personnel, purchasing, printing, duplicating, binding and other services which can be efficiently combined. The curator may establish such other sections for such purposes as he or she deems necessary, and may appoint directors thereof. The curator may appoint a director of the West Virginia Science and Culture Center. The curator shall serve as the state historic preservation officer.

After consultation with the section directors and the commissions, the curator shall prepare a proposed department budget for submission to the Governor for each fiscal year.

No contract, agreement or undertaking may be entered into by any section of the department which involves the expenditure of funds without the express written approval of the curator as to fiscal responsibility.

The curator shall prepare and submit to the Governor an annual report in accordance with the provisions of §5-1-20 of this code, which report shall include a detailed account of the activities of each section and commission of the department.

The curator shall employ all personnel for the sections, except for persons in the professional positions established within the sections as provided in this article; and shall supply support services to the commissions and to the Governor’s Mansion Advisory Committee.

§29-1-3. Commission on the Arts.

(a) The Commission on the Arts is continued and shall be composed of 15 appointed voting members, the Curator of the West Virginia Department of Arts, Culture and History as an ex officio voting member, the director of the arts section as an ex officio nonvoting member, and the ex officio nonvoting members set forth or authorized for appointment in this section.

(b)(1) The Governor shall appoint, by and with the advice and consent of the Senate, the voting members of the commission for staggered terms of three years. A person appointed to fill a vacancy shall be appointed only for the remainder of that term.

(2) No more than eight appointed voting members may be of the same political party. Effective July 1, 2004, no more than three voting members may be from the same regional educational service agency district created in §18-2-26 of this code. Appointed voting members of the commission shall be appointed so as to fairly represent both sexes, the ethnic and cultural diversity of the state, and the geographic regions of the state.

(3) The commission shall elect one of its members as chair. It shall meet at the times specified by the chair. Notice of each meeting shall be given to each member by the chair in compliance with the open meetings laws of the state. A majority of the voting members constitute a quorum for the transaction of business. The director of the arts section shall serve as secretary. The curator or a majority of the members also may call a meeting upon notice as provided in this section.

(4) Each member of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of the duties of the office; except that if the expenses are paid, or are to be paid, by a third party, the member or ex officio member, as the case may be, may not be reimbursed by the state.

(5) Upon recommendation of the curator, the Governor also may appoint those officers of the state that are appropriate to serve on the commission as ex officio nonvoting members.

(c) The commission may:

(1) Advise the curator and the director of the arts section concerning the accomplishment of the purposes of that section and establish a state plan with respect to the arts section;

(2) Approve and distribute grants-in-aid and awards from federal and state funds relating to the purposes of the arts section;

(3) Request, accept, or expend federal funds to accomplish the purposes of the arts section when federal law or regulations would prohibit those actions by the curator or section director, but would permit them to be done by the commission on the arts;

(4) Otherwise encourage and promote the purposes of the arts section;

(5) Approve rules concerning the professional policies and functions of the section as promulgated by the director of the arts section; and

(6) Advise and consent to the appointment of the director by the curator.

(d) A special revenue account in the State Treasury, known as the “Cultural Facilities and Capital Resources Matching Grant Program Fund”, is continued. The fund shall consist of moneys received under §29-22A-10 of this code and funds from any other source. The moneys in the fund shall be expended in accordance with the following:

(1) Fifty percent of the moneys deposited in the fund shall be expended by the Commission on the Arts for capital improvements, preservation, and operations of cultural facilities: Provided, That the Commission on the Arts may use no more than 25 percent of the funding for operations of cultural facilities pursuant to the rule required by this subdivision. The Commission on the Arts shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to create a matching grant program for cultural facilities and capital resources; and

(2) Fifty percent of the moneys deposited in the fund shall be expended by the Department of Arts, Culture and History for:

(A) Capital improvements, preservation, and operation of cultural facilities that are managed by the department; and

(B) Capital improvements, preservation, and operation of cultural facilities that are not managed by the department.

(e) The commission shall undertake a study, solicit designs, and make recommendations for the establishment of an appropriate memorial on state capitol grounds for soldiers killed in the conflicts in Iraq, Afghanistan, and other locations who died fighting the United States War on Terror, and to recognize and honor the West Virginians who lost their lives in these conflicts. The commission shall consult with the Capitol Building Commission and state veterans, including veterans groups and Gold Star mothers of those lost in these conflicts, prior to adoption of a proposal for the memorial. The commission shall provide a report to the Legislature’s Joint Committee on Government and Finance by January 1, 2022, including recommendations for design and location of the memorial and estimated construction costs.

§29-1-4. Arts section; director.

The purposes and duties of the arts section are to stimulate, encourage, assist, promote, foster and develop the performing and creative arts and crafts in the state; and in furtherance thereof to make awards, prizes and grants to individual performers, artists or craftsmen and to public or private corporations or associations in the field of either the performing or creative arts and crafts that would tend to encourage and foster the advancement of such arts and crafts; to support cultural, artistic or craft exhibits or performances at the division's facilities or on tour; and to perform such other duties as may be assigned to said section by the commissioner.

With the advice and consent of the commission on the arts, the commissioner shall appoint a director of the arts section, who shall have: (1) A bachelor's degree in the fine arts or related field or equivalent training and experience; or (2) three years' experience in administration of the fine arts or a related field.

With the approval of the commissioner, the director shall establish professional positions within the section. The director shall employ the personnel within these professional positions for the section.

The director may propose rules for legislative promulgation, in accordance with the provisions of chapter twenty-nine-a of this code, concerning the professional policies and functions of the arts section, subject to the approval of the commission on the arts.

§29-1-5. Archives and history commission.

(a) The archives and history commission which is hereby created shall be composed of thirteen appointed members and six ex officio nonvoting members as provided in this section.

(b) The Governor shall nominate, and by and with the advice and consent of the Senate, appoint the members of the commission for staggered terms of three years. A person appointed to fill a vacancy shall be appointed only for the remainder of that term.

(c) No more than seven of the appointed members may be of the same political party. Members of the commission should be appointed so as to fairly represent both sexes, the ethnic and cultural diversity of the state and the geographic regions of the state. The archives and history commission shall contain the required professional representation necessary to carry out the provisions of the National Historic Preservation Act of 1966, as amended, and shall serve as the “state review board” and shall follow all rules and regulations as specified therein. This representation shall include the following professions: Historian, architectural historian, historical architect, archaeologist specializing in historic and prehistoric archaeology, archivist, librarian and museum specialist.

(d) The commission shall elect one of its members chair. It shall meet at such time as shall be specified by the chair, or in accordance with the provisions of subsection (g) of this section. A majority of the voting members shall constitute a quorum for the transaction of business.

(e) The commission shall be comprised of:

(1) The thirteen appointed, voting members; and

(2) The following six ex officio, nonvoting members:

(A) The Director of the State Geological and Economic Survey;

(B) The President of the West Virginia Preservation Alliance, Inc.;

(C) The State Historic Preservation Officer;

(D) The Director of the Archives and History Section;

(E) The Director of the Historic Preservation Section; and

(F) The Director of the Museums Section.

(f) The Director of the Archives and History Section shall serve as secretary of the commission.

(g) Notice of each meeting shall be given to each member by the chair in compliance with the open meetings law. The secretary, or a majority of the members, may also call a meeting upon such notice as provided in this section.

(h) Each member or ex officio member of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of the duties of the commission; except that in the event the expenses are paid, or are to be paid, by a third party, the member or ex officio member, as the case may be, shall not be reimbursed by the state.

(i) The commission shall have the following powers:

(1) To advise the commissioner and the directors of the archives and history section, the historic preservation section and the museums section concerning the accomplishment of the purposes of those sections and to establish a state plan with respect thereto;

(2) To approve and distribute grants-in-aid and awards from federal and state funds relating to the purposes of the archives and history section, the historic preservation section and the museums section;

(3) To request, accept or expend federal funds to accomplish the purposes of the archives and history section, the historic preservation section and the museums section when federal law or regulations would prohibit the same by the commissioner or section director, but would permit the same to be done by the archives and history commission;

(4) To otherwise encourage and promote the purposes of the archives and history section, the historic preservation section and the museums section;

(5) To approve rules and regulations concerning the professional policies and functions of the archives and history section, the historic preservation section and the museums section as promulgated by the directors of those sections;

(6) To advise and consent to the appointment of the section directors by the commissioner; and

(7) To review and approve nominations to the state and national registers of historic places.

§29-1-6. Archives and history section; director.

(a) The purposes and duties of the archives and history section are to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition documents and records having historical, evidential, administrative and/or legal value relating to the State of West Virginia and the territory included in the state from the earliest times to the present, upon its own initiative or in cooperation with any private or public society, organization or agency; to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for the preservation of the documents and records; to direct, protect, preserve, study and disseminate information on the documents and records; to provide matching grants to political subdivisions of this state to protect and preserve the documents and records; to operate and maintain a state library for the preservation of all public records, state papers, documents and reports of all three branches of state government including all boards, commissions, departments and agencies as well as any other private or public papers, books or documents of peculiar or historic interest or significance; to designate appropriate monuments, tablets or markers for historic, architectural and scenic sites within the state and to arrange for the purchase, replacement, care of and maintenance of the monuments, tablets and markers and to formulate and prepare suitable copy for them; to edit and publish a historical journal devoted to the history, biography, bibliography and genealogy of West Virginia; and to perform any other duties assigned to the section by the commissioner.

(b) With the advice and consent of the archives and history commission, the commissioner shall appoint a director of the archives and history section, who shall have: (1) A graduate degree in one of the social sciences, or equivalent training and experience in the field of West Virginia history, history, or in records, library or archives management; and (2) three years' experience in administration in the field of West Virginia history, history, or in records, library or archives management. Notwithstanding these qualifications, the person serving as the state historian and archivist on the date of enactment of this article is eligible for appointment as the director of the archives and history section. The director of the archives and history section shall serve as the state historian and archivist.

(c) With the approval of the commissioner, the director shall establish professional positions within the section and develop appropriate organizational structures to carry out the duties of the section. The director shall employ the personnel with applicable professional qualifications to fill positions within the organizational structure with the minimum professional qualifications. At the minimum, the following professions shall be represented within the section staff: Historian, archivist, librarian and technical and clerical positions as are required.

(d) The director shall promulgate rules with the approval of the archives and history commission and in accordance with chapter twenty-nine-a of this code concerning: (1) The professional policies and functions of the archives and history section; and (2) any other rules determined necessary to effectuate the purposes of this article.

§29-1-7. Museums section; director.

(a) The purposes and duties of the museums section are to locate, survey, investigate, register, identify, excavate, preserve, protect, restore and recommend to the commissioner for acquisition historic objects worthy of preservation, relating to the State of West Virginia and the territory included therein from the earliest times to the present, upon its own initiative or in cooperation with any private or public society, organization or agency; to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for the preservation, restoration or development of such objects; to direct, protect, excavate, preserve, study or develop such objects; to preserve and protect all battle or regimental flags borne by West Virginians and other memorabilia of historic interest; to operate and maintain a state museum, and to coordinate activities with other museums in the state; and to perform such other duties as may be assigned to the section by the commissioner.

(b) With the advice and consent of the archives and history commission, in addition to the duties above set forth, the section shall determine the whereabouts of and require the return of furnishings and objects missing from the capitol building and other state-owned or controlled buildings, including, but not limited to, furnishings chosen or purchased for the capitol by its architect, Cass Gilbert. No furnishings from the capitol may be sold or disposed of except pursuant to the provisions of article three, chapter five-a of this code. If furnishings originally designated as capitol building furnishings have been sold or otherwise disposed of without the requisite sale procedures, such furnishings shall be returned to the capitol and, upon presentation of proof of the amount paid, the current owner shall be reimbursed for the cost of the furnishing less any appropriate depreciation or wear and tear.

(c) With the advice and consent of the archives and history commission, the commissioner shall appoint a director of the museums section, who shall have: (1) A graduate degree in one of the social sciences, or equivalent training and experience in the field of West Virginia history, history, archaeology, or in museum administration; and (2) three years' experience in administration in the field of West Virginia history, history, archaeology, or in museum management.

(d) With the approval of the commissioner, the director shall establish professional positions within the section and develop appropriate organizational structures to carry out the duties of the section. The director shall employ the personnel with applicable professional qualifications to fill positions within the organizational structure. At the minimum, the following professions shall be represented within the section staff: Curator and such technical and clerical positions as are required. With the approval of the commissioner, the director shall establish professional positions within the section. The director shall employ the personnel within these professional positions for the section.

(e) The director shall promulgate rules and regulations with the approval of the archives and history commission and in accordance with chapter twenty-nine-a of this code concerning: (1) The professional policies and functions of the museums section; and (2) such other rules and regulations as may be deemed necessary to effectuate the purposes of this section.

§29-1-7a.

Repealed.

Acts, 1991 Reg. Sess., Ch. 42.

§29-1-8. Historic preservation section; director.

(a) The purposes and duties of the historic preservation section are to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition historic, architectural, archaeological and cultural sites, structures and objects worthy of preservation, including human skeletal remains, graves, grave artifacts and grave markers, relating to the State of West Virginia and the territory included therein from the earliest times to the present upon its own initiative or in cooperation with any private or public society, organization or agency; to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for the preservation, restoration or development of the sites, structures and objects; to direct, protect, excavate, preserve, study or develop the sites and structures; to review all undertakings permitted, funded, licensed or otherwise assisted, in whole or in part, by the state for the purposes of furthering the duties of the section; to carry out the duties and responsibilities enumerated in the National Historic Preservation Act of 1966, as amended, as they pertain to the duties of the section; to develop and maintain a West Virginia State Register of Historic Places for use as a planning tool for state and local government; to cooperate with state and federal agencies in archaeological work; to issue permits for the excavation or removal of human skeletal remains, grave artifacts and grave markers, archaeological and prehistoric and historic features under the provisions of section eight-a of this article; and to perform any other duties as may be assigned to the section by the commissioner.

(b) With the advice and consent of the Archives and History Commission, the commissioner shall appoint a director of the historic preservation section who shall have: (1) A graduate degree in one of the social sciences or equivalent training and experience in the field of historic preservation, archaeology, West Virginia history or history; and (2) three years' experience in administration in the field of West Virginia history, history, historic preservation or archaeology. The director of the historic preservation section shall serve as the deputy state historic preservation officer.

(c) With the approval of the commissioner, the director shall establish professional positions within the section and develop appropriate organizational structures to carry out the duties of the section. The director shall employ the personnel with applicable professional qualifications to fill positions within the organizational structure with the minimum professional qualifications necessary to carry out the provisions of the National Historic Preservation Act of 1966, as amended. At the minimum, the following professions shall be represented within the section staff: Historian, architectural historian, a structural historian who specializes in historical preservation, an archaeologist specializing in historic and prehistoric archaeology and such technical and clerical positions as are required.

(d) The director shall promulgate rules with the approval of the archives and history commission and in accordance with chapter twenty-nine-a of this code concerning: (1) The professional policies and functions of the historic preservation section; (2) the review of and, when required, issuance of permits for all undertakings permitted, funded, licensed or otherwise assisted, in whole or in part, by the state as indicated in subsection (a) of this section in order to carry out the duties and responsibilities of the section; (3) the establishment and maintenance of a West Virginia State Register of Historic Places, including the criteria for eligibility of buildings, structures, sites, districts and objects for the state Register and procedures for nominations to the state Register and protection of nominated and listed properties; (4) the review of historic structures in accordance with compliance alternatives and other provisions in any state fire regulation and shall coordinate standards with the appropriate regulatory officials regarding their application; (5) review of historic structures in conjunction with existing state or local building codes and shall coordinate standards with the appropriate regulatory officials for their application; and (6) any other rules as may be considered necessary to effectuate the purposes of this article.

§29-1-8a. Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties.

(a) Legislative findings and purpose. --

The Legislature finds that there is a real and growing threat to the safety and sanctity of unmarked human graves in West Virginia and the existing laws of the state do not provide equal or adequate protection for all such graves. As evident by the numerous incidents in West Virginia which have resulted in the desecration of human remains and vandalism to grave markers, there is an immediate need to protect the graves of earlier West Virginians from such desecration. Therefore, the purpose of this article is to assure that all human burials be accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds, or religious affiliations.

The Legislature also finds that those persons engaged in the scientific study or recovery of artifacts which have been acquired in accordance with the law are engaged in legitimate and worthy scientific and educational activities. Therefore, this legislation is intended to permit the appropriate pursuit of those lawful activities.

Finally, this legislation is not intended to interfere with the normal activities of private property owners, farmers, or those engaged in the development, mining or improvement of real property. (b) Definitions. --

For the purposes of this section:

(1) "Human skeletal remains" means the bones, teeth, hair or tissue of a deceased human body;

(2) "Unmarked grave" means any grave or location where a human body or bodies have been buried or deposited for at least fifty years and the grave or location is not in a publicly or privately maintained cemetery or in the care of a cemetery association, or is located within such cemetery or in such care and is not commonly marked;

(3) "Grave artifact" means any items of human manufacture or use that are associated with the human skeletal remains in a grave;

(4) "Grave marker" means any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with a grave;

(5) "Person" means any individual, partnership, firm, society, association, trust, corporation, other business entity or any agency, unit or instrumentality of federal, state or local government;

(6) "Disturb" means the excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers;

(7) "Native American tribe" means any Indian tribe, band, nation, or organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;

(8) "Cultural affiliation" means the relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day group and an identifiable earlier group;

(9) "Lineal descendants" means any individuals tracing his or her ancestry directly or by proven kinship; and

(10) "Proven kinship" means the relationship among people that exists because of genetic descent, which includes racial descent.

(c) Acts prohibited; penalties; exceptions. --

(1) No person may excavate, remove, destroy, or otherwise disturb any historic or prehistoric ruins, burial grounds, archaeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance unless such person has a valid permit issued to him or her by the Director of the Historic Preservation Section: Provided, That the supervising archaeologist of an archaeological investigation being undertaken in compliance with the federal Archaeological Resources Protection Act (Public Law 96-95 at 16 USC 470(aa)) and regulations promulgated thereunder is not required to obtain such permit, but shall notify the Director of the Historic Preservation Section that such investigation is being undertaken and file reports as are required of persons issued a permit under this section: Provided, however, That projects being undertaken in compliance with section 106 of the National Historic Preservation Act of 1966, as amended, or subsection (a), section five of this article is not required to obtain such permit for excavation, removal, destruction or disturbance of historic or prehistoric ruins or archaeological sites.

(2) A person who, either by himself or herself or through an agent, intentionally excavates, removes, destroys or otherwise disturbs any historic or prehistoric ruins, burial grounds or archaeological site, or unmarked grave, grave artifact or grave marker of historical significance without first having been issued a valid permit by the Director of the Historic Preservation Section, or who fails to comply with the terms and conditions of such permit, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, confined in jail for not more than six months, or both fined and confined.

(3) A person who, either by himself or herself or through an agent, intentionally excavates, removes, destroys or otherwise disturbs human skeletal remains of historical significance without first having been issued a valid permit by the Director of the Historic Preservation Section, or who fails to comply with the terms and conditions relating to disinterment or displacement of human skeletal remains of such permit, is guilty of the felony of disinterment or displacement of a dead human body or parts thereof under section fourteen, article eight, chapter sixty-one of this code and, upon conviction thereof, shall be imprisoned in a state correctional facility not more than five years.

(4) A person who intentionally withholds information about the excavation, removal, destruction, or other disturbance of any historic or prehistoric ruins, burial grounds, archaeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100, or confined in jail not more than ten days, or both fined and confined.

(5) A person who, either by himself or herself or through an agent, offers for sale or exchange any human skeletal remains, grave artifact or grave marker obtained in violation of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in jail not more than one year, or both fined and confined.

(6) Each instance of excavation, removal, destruction, disturbance or offering for sale or exchange under subdivisions (1) through (5) of this subsection shall constitute a separate offense.

(7) It is a complete defense in a prosecution under this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported.

(8) This subsection does not apply to actions taken in the performance of official law-enforcement duties.

(d) Notification of discovery of human skeletal remains in unmarked locations. --

Upon the discovery of human skeletal remains, grave artifact or grave marker in an unmarked grave on any publicly or privately owned property, the person making such discovery shall immediately cease any activity which may cause further disturbance, make a reasonable effort to protect the area from further disturbance and notify the county sheriff within forty-eight hours of the discovery and its location. If the human remains, grave artifact or grave marker appear to be from an unmarked grave, the sheriff shall promptly, and prior to any further disturbance or removal of the remains, notify the Director of the Historic Preservation Section. The director shall cause an on-site inspection of the disturbance to be made to determine the potential for archaeological significance of the site: Provided, That when the discovery is made by an archaeological investigation permitted under state or federal law, the supervising archaeologist shall notify the Director of the Historic Preservation Section directly.

If the Director of the Historic Preservation Section determines that the site has no archaeological significance, the removal, transfer and disposition of the remains shall be subject to the provisions of article thirteen, chapter thirty-seven of this code, and the director shall notify the circuit court of the county wherein the site is located.

If the Director of the Historic Preservation Section determines that the site has a potential for archaeological significance, the director shall take such action as is reasonable, necessary and prudent, including consultation with appropriate private or public organizations, to preserve and advance the culture of the state in accordance with the powers and duties granted to the director, including the issuance of a permit for the archaeological excavation or removal of the remains. If the director determines that the issuance of a permit for the archaeological excavation or removal of the remains is not reasonable, necessary or prudent, the director shall provide written reasons to the applicant for not issuing the permit.

(e) Issuance of permits. --

Prior to the issuance of a permit for the disturbance of human skeletal remains, grave artifacts, or grave markers, the director of historic preservation shall convene and chair an ad hoc committee to develop permit conditions. The committee shall be comprised of the chair and six or eight members representing known or presumed lineal descendants, private and public organizations which have cultural affiliation to the presumed contents of the site, the Council for West Virginia Archaeology and the West Virginia Archaeological Society. In the case of Native American sites, the membership of the committee shall be comprised of the chair and six or eight members representing the Council for West Virginia Archaeology, the West Virginia Archaeological Society, and known or presumed lineal descendants, preferably with cultural affiliation to tribes that existed in the geographic area that is now West Virginia.

In the case of a site of less then five acres, which is owned by an individual or partnership, the ad hoc committee must be formed within thirty days of application for same by the property owner, must meet within sixty days of such application, and must render a decision within ninety days of such application.

All such permits shall at a minimum address the following conditions: (1) The methods by which lineal descendants of the deceased are notified prior to the disturbance; (2) the respectful manner in which the remains, artifacts or markers are to be removed and handled; (3) scientific analysis of the remains, artifacts or markers and the duration of those studies; (4) the way in which the remains may be reburied in consultation with any lineal descendants, when available; (5) methods for the respectful curation of recovered items; and (6) such other conditions as the director may deem necessary. Expenses accrued in meeting the permit conditions shall be borne by the permit applicant, except in cases where the deceased descendants or sponsors are willing to share or assume the costs. A permit to disturb human skeletal remains, grave artifacts or grave markers will be issued only after alternatives to disturbance and other mitigative measures have been considered.

In addition, a person applying for a permit to excavate or remove human skeletal remains, grave artifacts, grave markers, or any historic or prehistoric features of archaeological significance may provide to the ad hoc committee information he or she deems appropriate and shall:

(1) Provide a detailed statement to the Director of the Historic Preservation Section giving the reasons and objectives for excavation or removal and the benefits expected to be obtained from the contemplated work;

(2) Provide data and results of any excavation, study or collection in annual reports to the Director of the Historic Preservation Section and submit a final report to the director upon completion of the excavation;

(3) Obtain the prior written permission of the owner if the site of such proposed excavation is on privately owned land; and

(4) Provide any additional information the ad hoc committee deems necessary in developing the permit conditions.

The permits shall be issued for a period of two years and may be renewed at expiration. The permits are not transferable but other persons who have not been issued a permit may work under the direct supervision of the person holding the permit. The person or persons to whom a permit was issued must carry the permit while exercising the privileges granted and must be present at the site whenever work is being done.

Notwithstanding any other penalties to which a person may be subject under this section for failing to comply with the terms and conditions of a permit, the permit of a person who violates any of the provisions of this subsection shall be revoked.

As permits are issued, the Director of the Historic Preservation Section shall maintain a catalogue of unmarked grave locations throughout the state.

(f) Property tax exemption for unmarked grave sites. --

To serve as an incentive for the protection of unmarked graves, the owner, having evidence of the presence of unmarked graves on his or her property, may apply to the Director of the Historic Preservation Section for a determination as to whether such is the case. Upon making such a determination in the affirmative, the Director of the Historic Preservation Section shall provide written certification to the landowner that the site containing the graves is a cemetery and as such is exempt from property taxation upon presentation of the certification to the county assessor. The area of the site to receive property tax exempt status shall be determined by the Director of the Historic Preservation Section. Additionally, a property owner may establish protective easements for the location of unmarked graves.

(g) Additional provisions for enforcement; civil penalties; rewards for information. --

(1) The prosecuting attorney of the county in which a violation of any provision of this section is alleged to have occurred may be requested by the Director of the Historic Preservation Section to initiate criminal prosecutions or to seek civil damages, injunctive relief and any other appropriate relief. The Director of the Historic Preservation Section shall cooperate with the prosecuting attorney in resolving such allegations.

(2) Persons convicted of any prohibited act involving the excavation, removal, destruction, disturbance or offering for sale or exchange of historic or prehistoric ruins, burial grounds, archaeological site, human skeletal remains, unmarked grave, grave artifact or grave marker under the provisions of subdivisions (1) and (2), subsection (c) of this section shall also be liable for civil damages to be assessed by the prosecuting attorney in consultation with the Director of the Historic Preservation Section.

Civil damages may include:

(i) Forfeiture of any and all equipment used in disturbing the protected unmarked graves or grave markers;

(ii) Any and all costs incurred in cleaning, restoring, analyzing, accessioning and curating the recovered material;

(iii) Any and all costs associated with recovery of data, and analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the restoration of the unmarked burials or grave markers;

(iv) Any and all costs associated with restoring the land to its original contour or the grave marker to its original condition;

(v) Any and all costs associated with reinterment of the human skeletal remains; and

(vi) Any and all costs associated with the determination and collection of the civil damages.

When civil damages are recovered, the proceeds, less the costs of the prosecuting attorney associated with the determination and collection of such damages, shall be deposited into the Endangered Historic Properties Fund and may be expended by the Commissioner of Culture and History for archaeological programs at the state level, including the payment of rewards for information leading to the arrest and conviction of persons violating the provisions of subdivisions (1) and (2), subsection (c) of this section.

(3) The Commissioner of Culture and History is authorized to offer and pay rewards of up to $1,000 from funds on deposit in the Endangered Historic Properties Fund for information leading to the arrest and conviction of persons who violate the provisions of subdivisions (1) and (2), subsection (c) of this section.

(h) Disposition of remains and artifacts not subject to reburial. --

All human skeletal remains and grave artifacts found in unmarked graves on public or private land, and not subject to reburial, under the provisions of subsection (e) of this section, are held in trust for the people of West Virginia by the state and are under the jurisdiction of the Director of Historic Preservation. All materials collected and not reburied through this section shall be maintained with dignity and respect for the people of the state under the care of the West Virginia State Museum.

§29-1-8b. Protection of historic and prehistoric sites; penalties.

Historic and prehistoric landmarks, sites and districts, identified by the historic preservation section, on lands owned or leased by the state, or on private lands where investigation and development rights have been acquired by the state by lease or contract, shall not be disturbed, or destroyed except as permitted under sections eight and eight-a of this article.

Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $500, or imprisoned in the county jail not more than six months, or both fined and imprisoned.

§29-1-9. Administrative section; director.

The purposes and duties of the administrative section are to provide centralized support to the division in all areas of operations.

The commissioner shall appoint a director of the administrative section who shall have a bachelor's degree and two years' experience in responsible positions involving office management, public administration, budget and fiscal administration, or related fields; or six years' experience as outlined above. Notwithstanding these qualifications, the person serving as director of the administrative section on the date of enactment of this section shall be eligible for appointment as director of the administrative section.

With approval of the commissioner, the director of the administrative section shall establish professional positions within the section.

§29-1-10. Division employees classified by civil service; exceptions.

Effective July 1, 1977, any person employed in any of the agencies consolidated by this article who is a classified civil service employee shall, within the limits provided in article six of this chapter, remain in the civil service system as a covered employee; and all persons employed by the Division of Culture and History shall be employed under the classified service of the civil service system within the limits provided in article six of this chapter.

§29-1-11. Power to accept and receive funds; power to apply for grants; disbursal of funds; restrictions on expenditure; disposition of funds heretofore received or appropriated.

(a) The division may, in the name of the State of West Virginia, through the commissioner or its commissions, accept and receive grants, appropriations, gifts, bequests and funds from any public or private source for the purpose of carrying out the duties and purposes of this article.

(b) The division may, through the commissioner or its commissions, apply for grants from the federal government, private foundations and any other source for the purposes of this article.

(c) All funds received from any source shall be paid into the Treasury of the state and disbursed upon warrant by the State Auditor following requisition by the division. The requisitions shall be signed by the commissioner or by another person as the commissioner may authorize by written document deposited with the Auditor or, in the event of emergency, by the Governor or the Governor's designee.

(d) No funds or gifts received from any source shall be expended or used for any purpose other than that intended as evidenced by a positive and affirmative declaration or by a negative restriction or limitation.

(e) The division may assist in the promotion and operation of an annual state fair and other regional or local fairs and festivals entitled to aid when funds are available and to expend those funds for the support and development of fairs and festivals.

(f) All federal or state funds received to provide grants-in-aid or awards to further the purposes of this article shall be approved and distributed by the appropriate commission established by this article.

§29-1-12. Publication of materials; agreements.

The Division of Culture and History shall have the power, responsibility and duty to publish or republish material of prehistorical, historical, archaeological, architectural or cultural interest. The Division of Culture and History may sell such publications as well as postcards and other items of such interest at the state museum or any other site or property administered by the state or at any special event sponsored by the state. The division shall have the right to enter into agreements with responsible individuals, private historical, archaeological, architectural or cultural associations, foundations or similar organizations or any agency of the federal, state or local government for the purpose of carrying out its purposes or for raising money to fund the functions of the division.

§29-1-13. Land; control and disposal; rules and regulations.

All land owned or leased by the Division of Culture and History shall be titled in the name of the public land corporation of West Virginia but shall be controlled, administered and supervised by the division. The division, in the discretion of its commissioner, may sell or dispose of any real or personal property which, in his or her opinion, does not have sufficient prehistorical, historical, archaeological, architectural or cultural value to justify its retention.

The commissioner shall have the power to make and promulgate rules and regulations relating to the general management and administration of the division.

§29-1-14. Washington-Carver Camp; prohibition of disposition or removal of minerals without authorization by the Legislature.

Washington-Carver Camp in Fayette County, heretofore transferred to the public land corporation under the control, administration and supervision of the Division of Culture and History shall continue under the control, administration and supervision of the division.

The Division of Culture and History shall undertake to develop such cultural and multicultural, artistic, humanistic and educational programs at the camp as will serve and benefit the citizens of the state and the many cultures represented therein. In order to ensure the maximum reasonable utilization of that portion of the camp under its jurisdiction, the division shall, during times the camp is not being used for the division's purposes, make the camp available, under such terms as the division deems proper, to any other agency of government or nonprofit group desiring to use the camp. The camp shall retain the name "Camp Washington-Carver" as indicative of its heritage of serving the black citizens of the state. The division is authorized to provide necessary and suitable equipment and other resources for implementing the provisions of this section.

No minerals may be assigned, leased or otherwise encumbered, sold, mined, or removed with respect to the property heretofore transferred or the mineral rights retained without specific authorization by the Legislature.

§29-1A-1. Appointment and qualification; how vacancies filled.

Within thirty days after the effective date of this article, the Governor, upon the recommendation of the executive council of the West Virginia bar association, of a list of seven eligible persons, shall appoint therefrom three commissioners, no more than two of whom shall be members of the same political party, and each of whom shall be members of the bar of this state, in good standing, or of the judiciary of this state, who shall constitute and be known as the commission on uniform state laws, and upon the death, resignation or refusal to serve of any of the commissioners so appointed, the Governor, upon like recommendation, shall make an appointment to fill the vacancy so caused, such new appointment to be for the unexpired balance of the term of the original appointee.

§29-1A-2. Term of office; expenses.

Each of said commissioners shall hold office for a term of four years, and until their successors are duly appointed, but nothing herein contained shall be construed to render a commissioner who has faithfully performed his duties ineligible for reappointment. No member of said commission shall receive any compensation for his services as commissioner, but each commissioner shall be entitled to receive his actual disbursements for expenses in performing the duties of his office, and an account of which expenses, shall be approved by the chairman and paid by the State Auditor as other claims authorized by law.

§29-1A-2a. Life members.

In addition to the commissioners appointed and serving pursuant to other provisions of this article, any person who serves as a member of the commission for twenty years and because of such years of service is appointed by the national conference of commissioners on uniform state laws as a life member of such conference shall remain as an additional member of the commission, and shall have the same duties, responsibilities and privileges as any member of the commission appointed by the Governor.

§29-1A-3. Meetings and officers.

The commissioners shall meet at the state Capitol at least once in two years and shall organize by the election of one of their number as chairman and another as secretary, who shall hold their respective offices for a term of two years and until their successors are elected and qualified.

§29-1A-4. Duties of commission to secure uniformity in state laws; report to Legislature.

It shall be the duty of each of said commissioners to attend the meeting of the national conference of commissioners on uniform state laws, or to arrange for the attendance of at least one of their number at such national conference, and in such national conference they shall do all in their power to promote uniformity in state laws, upon all subjects where uniformity may be deemed desirable and practicable; said commission shall report to the Legislature at each regular session, and from time to time thereafter as said commission may deem proper, an account of its transactions, and its advice and recommendations for legislation. This report shall be printed for presentation to each Legislature.

§29-1A-5.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-1B-1. Senate committee on interstate cooperation.

There is hereby established a standing committee of the Senate of this state, to be officially known as the "Senate committee on interstate cooperation," and to consist of seven senators. The members and the chairman of this committee shall be designated in the same manner as is customary in the case of the members and chairmen of other standing committees of the Senate. In addition to the regular members, the President of the Senate shall be ex officio an honorary nonvoting member of this committee.

§29-1B-2. House committee on interstate cooperation.

There is hereby established a similar standing committee of the House of Delegates of this state, to be officially known as the "house committee on interstate cooperation," to consist of seven members of the House of Delegates. The members and the chairman of this committee shall be designated in the same manner as is customary in the case of the members and chairmen of other standing committees of the House of Delegates. In addition to the regular members, the Speaker of the House of Delegates shall be ex officio an honorary nonvoting member of this committee.

§29-1B-3. West Virginia commission on interstate cooperation.

There is hereby established the West Virginia commission on interstate cooperation. This commission shall be composed of fourteen regular members, namely:

The seven members of the Senate committee on interstate cooperation; and

The seven members of the House committee on interstate cooperation.

The President of the Senate and the Speaker of the House of Delegates shall be ex officio honorary nonvoting members of this commission and as such shall serve as cochairmen thereof.

§29-1B-4. Terms of Senate and House committees.

The said standing committee of the Senate and the said standing committee of the House of Delegates shall function during the regular sessions of the Legislature and also during the interim periods between such sessions; their members shall serve until their successors are designated; and they shall respectively constitute for this state the Senate council and House council of the American Legislators' Association.

§29-1B-5. Function of commission.

It shall be the function of this commission:

(1) To carry forward the participation of this state as a member of the council of state governments.

(2) To encourage and assist the legislative, executive, administrative and judicial officials and employees of this state to develop and maintain friendly contact by correspondence, by conference, and otherwise, with officials and employees of the other states of the federal government, and of local units of government.

(3) To endeavor to advance cooperation between this state and other units of government whenever it seems advisable to do so by formulating proposals for, and by facilitating:

(a) The adoption of compacts,

(b) The enactment of uniform or reciprocal statutes,

(c) The adoption of uniform or reciprocal administrative rules and regulations,

(d) The informal cooperation of governmental offices with one another,

(e) The personal cooperation of governmental officials and employees with one another, individually,

(f) The institution and consummation of a federal long- range program of flood control, meeting the requirements of the federal flood control acts of one thousand nine hundred thirty- six or other acts of Congress relative thereto,

(g) The interchange and clearance of research and information, and

(h) Any other suitable process.

(4) To perform such duties as from time to time may be assigned to it by the Joint Committee on Government and Finance and to cooperate with the Joint Committee on Government and Finance in joint interim studies.

(5) In short, to do all such acts as will, in the opinion of this commission, enable this state to do its part, or more than its part, in forming a more perfect union among the various governments in the United States and in developing the council of state governments for that purpose.

§29-1B-6. Commission may establish delegations and committees.

The commission shall establish such delegations and committees as it deems advisable, in order that they may confer and formulate proposals concerning effective means to secure intergovernmental harmony, and may perform other functions for the commission in obedience to its decisions. Subject to the approval of the commission, the member or members of each such delegation or committee shall be appointed by the chairman of the commission. State officials or employees who are not members of the commission on interstate cooperation may be appointed as members of any such delegation or committee, but private citizens holding no governmental position in this state shall not be eligible. The commission may provide such other rules as it considers appropriate concerning the membership and the functioning of any such delegation or committee. The commission may provide for advisory boards for itself and for its various delegations and committees, and may authorize private citizens to serve on such boards.

§29-1B-7. Names of committees and commission.

The committees and the commission established by this article shall be informally known, respectively, as the "Senate cooperation committee," the "House cooperation committee," and the "West Virginia cooperation commission."

§29-1B-8. Filing interstate compacts.

(a) Within ninety days of entering into an interstate compact, a commission, agency or person administering the compact between or among states or the federal government, having the force of law and to which this state is a party, shall file with the office of the Secretary of State:

(1) A copy of the compact accompanied by a signed letter of a representative of the commission, agency or person administering the compact stating that the copy is a true and accurate copy of the adopted compact;

(2) A listing of all other jurisdictions party to the compact and the date on which each jurisdiction entered into participation; and

(3) Citations to any act or resolution of the Congress of the United States consenting to the compact.

(b) The commission, agency or person administering the compact shall submit, within a reasonable time from when the information becomes available:

(1) The status of each compact with respect to withdrawals or additions of participating jurisdictions; and

(2) Any amendment, supplementary agreement or administrative rule having the force of law and implementing or modifying the compact.

(c) The office of the Secretary of State shall index these documents and make them available for inspection upon request of any person during normal business hours.

(d) The provisions of this section are in addition to other requirements of law for filing, publication or distribution.

(e) Certified copies of interstate compacts entered into by this state prior to the effective date of this section and the information required to be filed under subsection (a) of this section shall be filed with the office of the Secretary of State by the commission, agency or person administering the compacts within ninety days of the effective date of this section.

§29-1C-1.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1D-1.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1E-1. Definitions.

As used in this article, unless the context requires otherwise:

(1) "Compact" means the southern states energy compact;

(2) "Board" means the southern states energy board.

§29-1E-2. Enactment of compact.

The southern states energy compact is hereby enacted into law and entered into by the State of West Virginia with any and all states legally joining therein in accordance with its terms, in the form substantially as follows:

SOUTHERN STATES ENERGY COMPACT

Article I. Policy and Purpose

The party states recognize that the proper employment and conservation of energy, and employment of energy-related facilities, materials, and products, within the context of a responsible regard for the environment, can assist substantially in the industrialization of the south and the development of a balanced economy for the region. They also recognize the optimum benefit from and acquisition of energy resources and facilities requires systematic encouragement, guidance, and assistance from the party states on a cooperative basis. It is the policy of the party states to undertake such cooperation on a continuing basis; it is the purpose of this compact to provide the instruments and framework for such a cooperative effort to improve the economy of the south and contribute to the individual and community well-being of the region's people.

Article II. The Board

(a) There is hereby created an agency of the party states to be known as the "southern states energy board" (hereinafter called the board). The board shall be composed of three members from each party state, one of whom shall be appointed or designated in each state to represent the Governor, the state Senate, and the state House of Delegates, respectively. Each member shall be designated or appointed in accordance with the law of the state which he represents and serving and subject to removal in accordance with such law. Any member of the board may provide for the discharge of his duties and the performance of his functions thereon (either for the duration of his membership or for any lesser period of time) by a deputy or assistant, if the laws of his state make specific provision therefor. The federal government may be represented without vote if provision is made by federal law for representation.

(b) Each party state shall be entitled to one vote on the board to be determined by majority vote of each member or member's representative from the party state present and voting on any question. No action of the board shall be binding unless taken at a meeting at which a majority of all party states are represented and unless a majority of the total number of votes on the board are cast in favor thereof.

(c) The board shall have a seal.

(d) The board shall elect annually, from among its members, a chairman, a vice chairman, and a treasurer. The board shall appoint an executive director who shall serve at its pleasure and who shall also act as secretary, and who, together with the treasurer, shall be bonded in such amounts as the board may require.

(e) The executive director, with the approval of the board, shall appoint and remove or discharge such personnel as may be necessary for the performance of the board's functions irrespective of the civil service, personnel or other merit system laws of any of the party states.

(f) The board may establish and maintain, independently or in conjunction with any one or more of the party states, a suitable retirement system for its full-time employees. Employees of the board shall be eligible for social security coverage in respect of old age and survivors insurance provided that the board takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The board may establish and maintain or participate in such additional programs of employee benefits as may be appropriate.

(g) The board may borrow, accept, or contract for the services of personnel from any state or the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation.

(h) The board may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials, and services (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation, and may receive, utilize and dispose of the same.

(i) The board may establish and maintain such facilities as may be necessary for the transacting of its business. The board may acquire, hold, and convey real and personal property and any interest therein.

(j) The board shall adopt bylaws, rules, and regulations for the conduct of its business, and shall have the power to amend and rescind these bylaws, rules and regulations. The board shall publish its bylaws, rules and regulations in convenient form and shall file a copy thereof, and shall also file a copy of any amendment thereto, with the appropriate agency or officer in each of the party states.

(k) The board annually shall make to the Governor of each party state, a report covering the activities of the board for the preceding year, and embodying such recommendations as may have been adopted by the board, which report shall be transmitted to the Legislature of said state. The board may issue such additional reports as it may deem desirable.

Article III. Finances

(a) The board shall submit to the executive head or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the Legislature thereof.

(b) Each of the board's budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. One half of the total amount of each budget of estimated expenditures shall be apportioned among the party states in equal shares; one quarter of each such budget shall be apportioned among the party states in accordance with the ratio of their populations to the total population of the entire group of party states based on the last decennial federal census; and one quarter of each such budget shall be apportioned among the party states on the basis of the relative average per capita income of the inhabitants in each of the party states based on the latest computations published by the federal census-taking agency. Subject to appropriation by their respective Legislatures, the board shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the board.

(c) The board may meet any of its obligations in whole or in part with funds available to it under article two (h) of this compact, provided that the board takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the board makes use of funds available to it under article two (h) hereof, the board shall not incur any obligation prior to the allotment of funds by the party jurisdictions adequate to meet the same.

(d) The board shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the board shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the board shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become part of the annual report of the board.

(e) The accounts of the board shall be open at any reasonable time for inspections.

Article IV. Advisory Committees

The board may establish such advisory and technical committees as it may deem necessary, membership on which to include but not be limited to private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, medicine, education, voluntary health agencies, and officials of local, state and federal government, and may cooperate with and use the services of any such committees and the organizations which they represent in furthering any of its activities under this compact.

Article V. Powers

The board shall have power to:

(a) Ascertain and analyze on a continuing basis the position of the south with respect to energy, energy-related industries and environmental concerns.

(b) Encourage the development, conservation and responsible use of energy and energy-related facilities, installations, and products as part of a balanced economy and healthy environment.

(c) Collect, correlate, and disseminate information relating to civilian uses of energy and energy-related materials and products.

(d) Conduct, or cooperate in conducting, programs of training for state and local personnel engaged in any aspect of:

(1) Energy, environment, and applications of energy, environmental, and related concerns to industry, medicine, or education or the promotion or regulation thereof.

(2) The formulation or administration of measures designed to promote safety in any matter related to the development, use or disposal of energy and energy-related materials, products, installations or wastes.

(e) Organize and conduct, or assist and cooperate in organizing and conducting, demonstrations of energy product, material, or equipment use and disposal and of proper techniques or processes for the application of energy resources to the civilian economy or general welfare.

(f) Undertake such nonregulatory functions with respect to sources of radiation as may promote the economic development and general welfare of the region.

(g) Study industrial, health, safety, and other standards, laws, codes, rules, regulations, and administrative practices in or related to energy and environmental fields.

(h) Recommend such changes in, or amendments or additions to the laws, codes, rules, regulations, administrative procedures and practices or ordinances of the party states in any of the fields of its interest and competence as in its judgment may be appropriate. Any such recommendation shall be made through the appropriate state agency with due consideration of the desirability of uniformity but shall also give appropriate weight to any special circumstance which may justify variations to meet local conditions.

(i) Prepare, publish and distribute (with or without charge) such reports, bulletins, newsletters or other material as it deems appropriate.

(j) Cooperate with the United States department of energy or any agency successor thereto, any other officer or agency of the United States and any other governmental unit or agency or officer thereof, and with any private persons or agencies in any of the fields of its interest.

(k) Act as licensee of the United States government or any party state with respect to the conduct of any research activity requiring such license and operate such research facility or undertake any program pursuant thereto.

(1) Ascertain from time to time such methods, practices, circumstances, and conditions as may bring about the prevention and control of energy and environmental incidents in the area comprising the party states, to coordinate the nuclear, environmental and other energy-related incident prevention and control plans and the work relating thereto of the appropriate agencies of the party states and to facilitate the rendering of aid by the party states to each other in coping with energy and environmental incidents. The board may formulate and, in accordance with need from time to time, revise a regional plan or regional plans for coping with energy and environmental incidents within the territory of the party states as a whole or within any subregion or subregions of the geographic area covered by this compact.

Article VI. Supplementary Agreements

(a) To the extent that the board has not undertaken an activity or project which would be within its power under the provisions of article five of this compact, any two or more of the party states (acting by their duly constituted administrative officials) may enter into supplementary agreements for the undertaking and continuance of such an activity or project. Any such agreement shall specify its purpose or purposes; its duration and the procedure for termination thereof or withdrawal therefrom; the method of financing and allocating the costs of the activity or project; and such other matters as may be necessary or appropriate. No such supplementary agreement entered into pursuant to this article shall become effective prior to its submission to and approval by the board. The board shall give such approval unless it finds that the supplementary agreement or the activity or project contemplated thereby is inconsistent with the provisions of this compact or a program or activity conducted by or participated in by the board.

(b) Unless all of the party states participate in a supplementary agreement, any cost or costs thereof shall be borne separately by the states party thereto. However, the board may administer or otherwise assist in the operation of any supplementary agreement.

(c) No party to a supplementary agreement entered into pursuant to this article shall be relieved thereby of any obligation or duty assumed by said party state under or pursuant to this compact, except that timely and proper performance of such obligation of duty by means of the supplementary agreement may be offered as performance pursuant to the compact.

Article VII. Other Laws and Relationships

Nothing in this compact shall be construed to:

(a) Permit or require any person or other entity to avoid or refuse compliance with any law, rule, regulation, order or ordinance of a party state or subdivision thereof now or hereafter made, enacted or in force.

(b) Limit, diminish, or otherwise impair jurisdiction exercised by the United States department of energy, any agency successor thereto, or any other federal department, agency or officer pursuant to and in conformity with any valid and operative act of Congress.

(c) Alter the relations between and respective internal responsibilities of the government of a party state and its subdivisions.

(d) Permit or authorize the board to exercise any regulatory authority or to own or operate any nuclear reactor for the generation of electric energy; nor shall the board own or operate any facility or installation for industrial or commercial purposes.

Article VIII. Eligible Parties, Entry Into Force and Withdrawal

(a) Any or all of the states of Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, the Commonwealth of Puerto Rico and the United States Virgin Islands shall be eligible to become party to this compact.

(b) As to any eligible party state this compact shall become effective when its Legislature shall have enacted the same into law: Provided, That it shall not become initially effective until enacted into law by seven states.

(c) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall become effective until the Governor of the withdrawing state shall have sent formal notice in writing to the Governor of each other party state informing said Governors of the action of the Legislature in repealing the compact and declaring an intention to withdraw.

Article IX. Severability and Construction

The provisions of this compact and of any supplementary agreement entered into hereunder shall be severable and if any phrase, clause, sentence or provision of this compact or such supplementary agreement is declared to be contrary to the Constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact or such supplementary agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact or any supplementary agreement entered into hereunder shall be held contrary to the Constitution of any state participating therein, the compact or such supplementary agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. The provisions of this compact and of any supplementary agreement entered into pursuant hereto shall be liberally construed to effectuate the purposes thereof.

§29-1E-3. Membership of board.

The Governor shall appoint one of this state's three board members of the southern states energy board which is established by article two of the compact. Such member shall serve at the pleasure of the Governor. The President of the Senate and the Speaker of the House of Delegates shall each appoint one member of their respective houses, to serve at their pleasure, as board members of the southern states energy board. The president, the speaker and the Governor are each hereby authorized to appoint an alternate member who may serve at and for such time as the regular member shall designate and shall have the same power and authority as the regular member when so serving.

§29-1E-4. Employees of board.

The employees of the board shall be under such merit system as the board shall provide and, for the purposes of carrying out the provisions of article two (f), the board and its employees shall be considered a state agency, and the state employees' retirement system is hereby authorized to contract with the board in order to further or facilitate the activities of the board pursuant to article two (f) of the compact. No such contract shall take effect prior to its approval by the Governor.

§29-1E-5. Duties of members of board.

(a) The members of the board appointed and serving in accordance with section two of this article shall assist in the coordination of atomic and other energy-related activities within this state.

(b) The board members are hereby authorized and empowered to assist in the orderly development of atomic and other energy-related knowledge within the State of West Virginia.

§29-1E-6. Supplementary agreements.

Any supplementary agreement entered into under article six of the compact requiring the expenditure of funds shall not become effective as to the state until the required funds are appropriated by the Legislature.

§29-1E-7. Cooperation of state agencies, boards, departments, etc.

The departments, boards, agencies, commissions, officers and employees of the state and its subdivisions are authorized to cooperate with the board in the furtherance of any of its activities pursuant to this compact.

§29-1E-8. Appropriations.

The Legislature may appropriate such funds as it deems necessary to carry out the provisions of this chapter, article, and sections.

§29-1E-9. Severability clause.

If for any reason any section or provision of this article shall be held to be unconstitutional or invalid, such unconstitutionality or invalidity shall not affect the remainder of this article.

§29-1E-10. Effective date of amendments to compact; prior compact to continue in force.

The amendatory provisions to section two of this article enacted in the year one thousand nine hundred seventy-nine shall become effective at such time as nine of the eligible party states to the southern interstate nuclear compact, which may include the Commonwealth of Puerto Rico, and the United States Virgin Islands, approve substantially the same changes in the compact as are provided for in section two of this article and the Congress of the United States consents to the compact, substantially as amended by section two of this article; until such time, this state shall continue to remain a member of the southern interstate nuclear compact as set forth in chapter three, acts of the Legislature, one thousand nine hundred sixty-four.

§29-1F-1. Wheeling Creek Watershed protection and flood prevention district compact approved.

The following Wheeling Creek Watershed protection and flood prevention district compact, which has been negotiated by representatives of the commonwealth of Pennsylvania and the State of West Virginia, is hereby approved, ratified, adopted, enacted into law and entered into by the State of West Virginia as a party thereto and signatory state, namely:

WHEELING CREEK WATERSHED PROTECTION AND FLOOD

PREVENTION DISTRICT COMPACT

Article I. Recitation of Reasons for Compact.

WHEREAS, Wheeling Creek, a tributary of the Ohio River, arises in Pennsylvania, flows through Washington and Greene Counties of that commonwealth, enters the State of West Virginia, flows through Marshall and Ohio Counties, West Virginia, and empties into the Ohio River at Wheeling, West Virginia; and

WHEREAS, The inhabitants of Marshall and Ohio Counties, West Virginia, and, also, but to a much lesser degree, the inhabitants of Washington and Greene Counties, Pennsylvania, living along Wheeling Creek have over the years experienced loss of life and property from flooding of that stream; and

WHEREAS, Surveys made by the soil conservation service of the United States Department of Agriculture indicate that the inhabitants of the four counties named can best be protected from the flooding of Wheeling Creek by flood prevention dams constructed thereon with some of the dams being located on the upper reaches of the stream and its tributaries in the commonwealth of Pennsylvania; and

WHEREAS, The federal Watershed Protection and Flood Prevention Act of 1954, as amended, authorizes, under certain circumstances, federal assistance to local organizations in preparing and carrying out undertakings for flood prevention and the conservation, development, utilization and disposal of water in watershed or subwatershed area; and

WHEREAS, No local organization within the meaning of the federal act aforesaid, established by or organized under the laws of West Virginia, is competent under state laws, to acquire land for, construct, and operate, with or without federal assistance, flood prevention facilities in the commonwealth of Pennsylvania, and it appears that no such local organization established by or organized under the laws of the commonwealth of Pennsylvania can justify the expenditure of locally raised funds to construct and operate flood prevention facilities which will benefit primarily the inhabitants of the neighboring state of West Virginia; and

WHEREAS, Facilities erected on the upper reaches of Wheeling Creek and its tributaries for flood control and prevention can nevertheless have a recreational value for the citizens of both West Virginia and Pennsylvania and particularly the citizens of Ohio and Marshall Counties, West Virginia, and Washington and Greene Counties, Pennsylvania; accordingly, for purposes of promoting that potential, as well as providing a vehicle or means whereby federal assistance may be enlisted for the protection of citizens of her neighboring state of West Virginia from the flooding of Wheeling Creek, the commonwealth of Pennsylvania joins with the State of West Virginia in negotiating and ratifying this compact; now therefore,

Article II. Wheeling Creek Watershed Protection and

Flood Prevention District Created.

The commonwealth of Pennsylvania and the State of West Virginia hereby create as an agency and instrumentality of the governments thereof a district to be known as the "Wheeling Creek Watershed protection and flood prevention district," hereinafter called the district, which shall embrace all territory in the commonwealth of Pennsylvania and the State of West Virginia, the water in which flows ultimately into Wheeling Creek or its tributaries.

Article III. Wheeling Creek Watershed Protection and

Flood Prevention Commission Created.

The commonwealth of Pennsylvania and the State of West Virginia hereby create as the governing body of the district the "Wheeling Creek Watershed protection and flood prevention commission," hereinafter called the commission, which shall be a body corporate, with the powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent concurrent action of the General Assembly of Pennsylvania and the Legislature of West Virginia or by act or acts of the Congress of the United States.

Article IV. Composition of Commission.

The commission shall consist of five commissioners from Pennsylvania and five commissioners from West Virginia, each of whom shall be a citizen of the commonwealth or state from which he is appointed. The commissioners from the commonwealth and from the state shall be chosen in the manner and for the terms provided by the laws of the commonwealth or state from which they shall be appointed, and any commissioner may be removed or suspended from office as provided by the law of the commonwealth or state from which he shall be appointed. Vacancies on the commission shall be filled in the manner provided by the laws of the commonwealth or state among whose representation on the commission the vacancy occurs.

The commissioners shall serve without compensation from the commission but they shall be paid by the commission their actual expenses incurred and incident to the performance of their duties.

Article V. Organization of Commission.

The commission shall meet and organize within sixty days after the effective date of this compact, shall elect from its number a chairman and vice chairman, and shall appoint, and at its pleasure remove or discharge, such officers and legal, clerical, expert and other assistants as may be required to carry the provisions of this compact into effect, and shall determine their qualifications and fix their duties and compensation. It shall adopt a seal and suitable bylaws, and shall adopt and promulgate rules and regulations for its management and control. It may establish and maintain one or more offices within the district for the transaction of its business, and may meet at any time or place. The presence of three commissioners from the commonwealth of Pennsylvania and three commissioners from the State of West Virginia shall constitute a quorum, and a majority vote of the quorum shall be necessary to pass upon matters before the commission.

Article VI. Powers and Duties.

The commission is hereby authorized and empowered:

(a) To be and serve in the capacity of a local organization within the meaning of the Watershed Protection and Flood Prevention Act of the eighty-third Congress of the United States, second session, (Public Law 566), approved August 4, 1954, as from time to time amended, and in that capacity the commission shall have the following authority and powers:

(1) To apply for and receive federal financial and other assistance in preparing and carrying out plans for works of improvement as that term is defined in said federal act, as from time to time amended, hereinafter referred to as works of improvement, and to apply for and receive federal financial and other assistance under the aforementioned or other federal acts in preparing and carrying out plans for public fish and wildlife or recreational development in connection with works of improvement, including the construction and operation of all facilities which may be necessary or incident to such works of improvement and public fish and wildlife or recreational development in connection therewith.

(2) To acquire, or, with respect to interests in land to be acquired by condemnation, provide assurances satisfactory to the secretary of agriculture of the United States or other agent or agency of the United States that the commission will acquire such land, easements or right-of-ways as will be needed in connection with works of improvement, and public fish and wildlife or recreational development and facilities in connection with works of improvement, installed with federal assistance.

(3) To agree to operate and maintain any reservoir or other area included in a plan for works of improvement or public fish and wildlife or recreational development and facilities.

(4) To assume all or such proportionate share, as is determined by the secretary of agriculture of the United States or other agent or agency of the United States, of the cost of installing any works of improvement, involving federal assistance, with is applicable to the agricultural phases of the conservation, development, utilization and disposal of water or for fish and wildlife or recreational development and facilities or to purposes other than flood prevention and features relating thereto.

(5) To make arrangements satisfactory to the secretary of agriculture of the United States or other agent or agency of the United States for defraying costs of operating and maintaining works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement: Provided, That such arrangements shall be based solely upon contributions, allotments or commitments of funds to the district or commission.

(6) To acquire, or provide assurance that landowners or water users have acquired, such water rights, pursuant to the law of the commonwealth or state applicable thereto, as may be needed in the installation and operation of the works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement.

(7) To cooperate with soil conservation districts in obtaining agreements to carry out recommended soil conservation measures and proper farm plans from owners of land situated in the drainage area above each retention reservoir to be installed with or without federal assistance.

(8) To apply for and receive federal loans or advancements to finance the local share of costs of carrying out works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement, and to submit a plan of repayment satisfactory to the secretary of agriculture or other agent or agency of the United States for any loan or advancement: Provided, That such plan of repayment shall be based solely upon contributions, allotments or commitments of funds to the district or commission.

(9) To cooperate, and enter into agreements with, the secretary of agriculture of the United States or other agent or agency of the United States, and to do all other things required, not inconsistent with the provisions of this compact and the laws of the commonwealth of Pennsylvania and the State of West Virginia, to obtain maximum federal financial assistance for works of improvement and public fish and wildlife or recreational development and facilities in connection with such works of improvement.

(b) To acquire within the district, land, easements, right-of-ways and other property rights as may be needed in connection with works of improvement and public fish and wildlife or recreational development and facilities in connection with such works of improvement and to make studies respecting, and to plan, construct, maintain and operate works of improvement within the district and public fish and wildlife or recreational development and facilities in connection with such works of improvement.

(c) To obtain options upon and to acquire, by purchase, exchange, lease, gift, grant, bequest, devise, eminent domain or otherwise, any property, real or personal, or rights therein for any of the purposes specified in this article of the compact: Provided, That eminent domain proceedings shall be instituted and prosecuted in the manner and forms provided by the laws of the commonwealth or state in which the property or property rights proceeded against are situate: Provided, however, That no property now or hereafter vested in or held by the commonwealth of Pennsylvania or the State of West Virginia, or by any county, city, town, village, district, township, municipality or other political subdivision thereof shall be taken by the district without the consent of the commonwealth, state or political subdivision which owns the same.

(d) To maintain, administer and improve any properties acquired, to charge fees for use of, and receive income from, such properties and to expend such income in carrying out the purposes and provisions of this compact, and to lease any of its property or interests therein in accordance with the following provisions and requirements: The board of commissioners of the County of Ohio, West Virginia, the county commission of Marshall County, West Virginia, the board of commissioners of Greene County, Pennsylvania, and the board of commissioners of Washington County, Pennsylvania, shall each have the option of leasing from the commission for such period as the lessee may specify all or any part of the works of improvement and the public fish and wildlife and recreational development and facilities in connection with works of improvement located within their respective counties upon the following terms and conditions: (a) That in each such lease the lessee in consideration thereof pay to the lessor the sum of $1 and agree to fully maintain at its (the lessee's) expense all works of improvement and all such development and facilities in connection therewith located within the county of the lessee in accordance with the requirements of the Watershed Protection and Flood Prevention Act of the eighty-third Congress of the United States, second session, (Public Law 566), approved August 4, 1954, as from time to time amended, and all agreements and work plans made or formulated thereunder with respect to such works of improvement and such development and facilities in connection therewith located within the county of the lessee, and that for failure of the lessee to comply with such agreement, the lessor shall be given the right in the lease agreement to cancel the lease upon thirty days' written notice to the lessee; (b) that any such lease not be inconsistent with the provisions, or impair the purposes, of this compact; and (c) that any such lease be approved by the secretary of agriculture of the United States or other federal agent or agencies having authority to extend approval under the provisions of said act and agreements and work plans made or formulated thereunder. In the event the board of commissioners or county commission of any one of the four counties named does not, within six months from the completion of the works of improvement and all such development and facilities in connection therewith located in such county, elect in writing transmitted to the commission to exercise the option given to it by the foregoing provisions, or in the event such option is exercised and the lease to such board of commissioners or county commission is subsequently canceled because of violation of the provision of the lease by the lessee, or in the event such option is exercised and the board of commissioners or county commission subsequently chooses not to renew its lease, the commissioners may lease all or any part of the works of improvement and all such development and facilities in connection therewith located within such county to any other lessee which the commission may choose, and upon such terms as may be agreed upon, provided (a) that any such lease be approved by the board of commissioners or county commission of the county in which any part or all of the works of improvement and all such development and facilities in connection therewith are located; (b) that any such lease not be inconsistent with the provisions, or impair the purposes, of this compact; (c) that any such lease be approved by the secretary of agriculture of the United States or other federal agent or agencies having authority to extend approval under the provisions of said act and agreements and work plans made or formulated thereunder; and the option of leasing in the board of commissioners of the County of Ohio, West Virginia, the county commission of Marshall County, West Virginia, the board of commissioners of Greene County, Pennsylvania, and the board of commissioners of Washington County, Pennsylvania, shall include the right to sublease on the same terms and conditions set out in this paragraph designated (d) to any individual, corporation, municipal subdivision or municipal authority without the approval of the Wheeling Creek Watershed protection and flood prevention commission.

(e) To enter into contracts and other arrangements with agencies of the United States, with persons, firms or corporations, including both public and private corporations, with the government of the state and the government of the commonwealth, or any department or agency of the United States, the state or the commonwealth, with governmental divisions, with soil conservation, drainage, flood control, soil erosion or other improvement districts in the state or the commonwealth, for cooperation or assistance in constructing, improving, operating or maintaining works of improvement within the district, and public fish and wildlife or recreational development and facilities in connection with works of improvement, or in preventing floods, damage from sediment deposited by floodwaters, or in clearance of stream beds, or in conserving, developing, utilizing and disposing of water in the district, or for making surveys, investigations or reports thereof.

(f) To apply for, receive and use grants-in-aid, donations and contributions from any source or sources, and to accept and use, consistent with the purposes of this compact, bequests, devises, gifts and donations from any person, firm, corporation, state, commonwealth or agency or political subdivision thereof.

(g) To do any and all things necessary or convenient for the purpose of promoting, developing and advancing the purposes of said district herein set forth, and in promoting, developing and advancing the recreational development and facilities incidental to the works of improvement that shall be constructed to achieve said purposes.

(h) To delegate any authority given to it by law to any of its agents or employees, and to expend its funds in the execution of the powers and authority herein given.

(i) The commission, subject to the conditions herein, may sell, exchange or lease property, real or personal, or any interest therein.

When the property, or any interest or right therein, is being held for future use, it may be leased. When the real property, or any part thereof, or any interest or right therein, is deemed by the commission not necessary, or desirable for present or presently foreseeable future use, it may be exchanged for other property, or any interest or right therein, deemed by the commission to be necessary or desirable for present or presently foreseeable future use, or may be sold. In addition the commission may exchange real property, or any part thereof, or any interest or right therein, even though it may be desirable or necessary for present or presently foreseeable future use, if the exchange is made for other real property, or any interest or right therein, in close proximity thereto which the commission deems of equal or superior value for presently foreseeable future use. In making exchanges the commission may make allowances for differences in values of the properties being exchanged and may move or pay the cost of moving buildings, structures or appurtenances in connection with the exchange.

Every such sale of real property, or any interest or right therein or structure thereon, shall be at public auction in the county in which the real property, or the greater part thereof in value, is located, and the commission shall advertise, by publication or otherwise, the time, place and terms of such sale at least twenty days prior thereto. The property shall be sold in the manner which will bring the highest and best price therefor. The commission may reject any and all bids received at the sale. The commission shall keep a record, open to public inspection, indicating the manner in which such real property or any interest or right therein or structure thereon, was publicly advertised for sale, the highest bid received therefor and from whom, the person to whom sold, and payment received therefor. Such record shall be kept for a period of five years and may thereafter be destroyed.

The commission may insert in a deed or conveyance, whether it involves an exchange, lease or sale, such conditions as are in the public interest.

All moneys received from the exchange, sale or lease of real or personal property, or any right or interest therein, shall be paid into the commission's treasury and used for the purpose for which the commission was created.

If the commission has heretofore sold and conveyed away or leased any such property, such transaction and the documents of lease or transfer therefor are hereby approved and confirmed and shall be as effective as if the authority to lease or convey the said property had been given in this statute as originally enacted.

Article VII. Fiscal Affairs.

The commission shall submit at the appropriate or designated time to the board of commissioners of the County of Ohio, West Virginia, the county commission of Marshall County, West Virginia, the board of commissioners of Greene County, Pennsylvania, and the board of commissioners of Washington County, Pennsylvania, an annual budget of its estimated expenditures, which budget shall contain specific recommendations of the amount or amounts to be appropriated by each of the named governing bodies.

The commission shall not incur any obligation prior to the commitment or allotment of funds by the named governing bodies or by other sources adequate to meet the same.

The commission shall keep accurate accounts of all receipts and disbursements, which accounts shall be open for inspection at any reasonable time and shall be subject to audit by representatives of contributing political subdivisions and of the commonwealth of Pennsylvania and state of West Virginia. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws: Provided, That all receipts and disbursements of the commission shall be audited yearly by a qualified public accountant, and the report of the audit shall be transmitted to each contributor of funds to the district or commission.

Article VIII. Exemption from Taxes and Fees.

The district and the property belonging to the district shall be exempt from the payment of all taxes or fees imposed by the commonwealth of Pennsylvania or the State of West Virginia and by any agency and political subdivision thereof.

Article IX. Effective Date of Compact.

This compact shall become effective upon ratification by the General Assembly of the commonwealth of Pennsylvania and the Legislature of the State of West Virginia and upon approval by the Congress of the United States.

§29-1F-2. Appointment of members of commission; vacancies.

In pursuance of article IV of the above compact, there shall be five members of the Wheeling Creek watershed protection and flood prevention commission from the State of West Virginia, one of whom shall be a member of the board of commissioners of the county of Ohio, West Virginia, appointed by that body to serve at its will and pleasure, one of whom shall be a citizen of the city of Wheeling, Ohio county, West Virginia, appointed by the board of commissioners of the county of Ohio, West Virginia, to serve at its will and pleasure, one of whom shall be a member of the county court of Marshall county, West Virginia, appointed by that body to serve at its will and pleasure, one of whom shall be a citizen of Marshall county, West Virginia, appointed by the county court thereof to serve at its will and pleasure, and one of whom shall be a member of the board of supervisors of the northern panhandle soil conservation district, appointed by said board of supervisors to serve at its will and pleasure: Provided, That (1) the citizen appointed by the board of commissioners of the county of Ohio, West Virginia, shall not be a member of that body; (2) the citizen appointed by the county court of Marshal county, West Virginia, shall not be a member of that body; and (3) the member appointed by the board of supervisors of the northern panhandle soil conservation district shall not be a resident of either Ohio or Marshall county, West Virginia.

Vacancies shall be filled by the appointing authority responsible for making the appointment to the position vacated.

§29-1F-3. Contributions by political subdivisions.

The county court of Marshall county, West Virginia, and the board of commissioners of the county of Ohio, West Virginia, and any municipality therein, which may reasonably be expected to receive a benefit from the construction, improvement, operation or maintenance of any works of improvement, are hereby authorized and empowered to contribute moneys to the district by appropriation from their respective general funds not otherwise appropriated, and may set up in their respective budgets funds to be spent for such purposes, and such counties or municipalities may levy and collect taxes for such purposes, in the manner provided by law: Provided, That in case sufficient funds cannot be raised by ordinary levies, additional funds may be raised by the counties of Marshall and Ohio, and any such municipality, as provided by section sixteen, article eight, chapter eleven of the Code of West Virginia, 1931, as amended.

Such county court, board of commissioners, and municipal corporations are hereby authorized and empowered to transfer and convey to the district property of any kind heretofore acquired by said county court, board of commissioners, and municipalities, if acceptable to the district as adaptable for use for the purposes of the district, such transfers or conveyances to be without consideration or for such price and upon such terms and conditions as such county court, board of commissioners or municipalities shall determine to be proper.

§29-1F-4. Ohio county board of commissioners authorized to transfer certain special levy receipts to the Wheeling Creek watershed protection and flood prevention commission.

The board of commissioners of the county of Ohio is hereby authorized and empowered to transfer to the Wheeling Creek watershed protection and flood prevention commission established by this article all tax revenue and interest thereon received pursuant to and as the result of the special levy election held in Ohio county on May 12, 1964, to raise funds for the Wheeling Creek watershed project, which election was authorized and called by the board of commissioners of the county of Ohio by order entered on March 31, 1964: Provided, That before making any such transfer the board of commissioners of the county of Ohio shall obtain from the Wheeling Creek watershed protection and flood prevention commission written assurances that all such revenue and interest thereon to be so transferred shall be expended solely for the purposes for which such special levies were authorized: Provided further, That upon the receipt of such written assurances the board of commissioners of the county of Ohio shall not be liable for any misapplication by the Wheeling Creek watershed protection and flood prevention commission of any such revenues and interest thereon so transferred.

§29-1F-5. When commission authorized to dispose of real and personal property.

Subdivision (i), article VI, of the Wheeling Creek Watershed protection and flood prevention district compact shall be effective from the date of its enactment insofar as it relates to property situated in the State of West Virginia, but shall not apply to property situated in the commonwealth of Pennsylvania until and unless enacted by said commonwealth.

§29-1G-1.

Repealed.

Acts, 1979 Reg. Sess., Ch. 3.

§29-1H-1. Appalachian states low-level radioactive waste compact approved.

The following Appalachian States Low-Level Radioactive Waste Compact, which has been negotiated by representatives of the Commonwealth of Pennsylvania, and the states of West Virginia, Delaware and Maryland, is hereby approved, ratified, adopted, enacted into law, and entered into by the State of West Virginia as a party state thereto, namely:

APPALACHIAN STATES LOW-LEVEL

RADIOACTIVE WASTE COMPACT

Preamble

WHEREAS, The United States Congress, by enacting the Low-Level Radioactive Waste Policy Act (42 U.S.C. Sections 2021b-2021d) has encouraged the use of interstate compacts to provide for the establishment and operation of facilities for regional management of low-level radioactive waste; and

WHEREAS, Under section 4 (a) (1) (A) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. Sections 2021 (a) (1) (A)), each state is responsible for providing for the capacity for disposal of low-level radioactive waste generated within its borders; and

WHEREAS, To promote the health, safety and welfare of residents within the Commonwealth of Pennsylvania and the states of West Virginia, Delaware and Maryland, the aforementioned states wish to enter into a compact for the regional management of low-level radioactive waste;

Now, therefore, the Commonwealth of Pennsylvania and the states of West Virginia, Delaware and Maryland hereby agree to enter into the Appalachian States Low-Level Radioactive Waste Compact.

Article 1

Definitions

As used in this Compact, unless the context clearly indicates otherwise:

(a) "Broker" means any intermediate person who handles, treats, processes, stores, packages, ships or otherwise has responsibility for or possesses low-level waste obtained from a generator.

(b) "Carrier" means a person who transports low-level waste to a regional facility.

(c) "Commission" means the Appalachian States Low-Level Radioactive Waste Commission.

(d) "Disposal" means the isolation of low-level waste from the biosphere.

(e) "Facility" means any real or personal property, within the region, and improvements thereof or thereon, and any and all plant, structures, machinery, and equipment, acquired, constructed, operated or maintained for the management or disposal of low-level waste.

(f) "Generate" means to produce low-level waste requiring disposal.

(g) "Generator" means a person whose activity results in the production of low-level waste requiring disposal.

(h) "Hazardous life" means the time required for radioactive materials to decay to safe levels, as defined by the time period for the concentration of radioactive materials within a given container or package to decay to maximum permissible concentrations as defined by federal law or by standards to be set by a host state, whichever is more restrictive.

(i) "Host state" means Pennsylvania or any other party state so designated by the Commission in accordance with Article 3 of this Compact.

(j) "Institutional control period" means the time of the continued observation, monitoring and care of the regional facility following transfer of control from the operator to the custodial agency.

(k) "Low-level waste" means radioactive waste that:

(1) Is neither high-level waste or transuranic waste, nor spent nuclear fuel, nor by-product material as defined in Section 11 (e)(2) of the Atomic Energy Act of 1954, as amended; and

(2) Is classified by the federal government as low-level waste, consistent with existing law; but does not include waste generated as a result of atomic energy defense activities of the federal government, as defined in Public Law 96-573, or federal research and development activities.

(l) "Management" means the reduction, collection, consolidation, storage, packaging or treatment of low-level waste.

(m) "Operator" means a person who operates a regional facility.

(n) "Party state" means any state that has become a party in accordance with Article 5 of this Compact.

(o) "Person" means an individual, corporation, partnership or other legal entity, whether public or private.

(p) "Region" means the combined geographical area within the boundaries of the party states.

(q) "Regional facility" means a facility within any party state which has been approved by the Commission for the disposal of low-level waste.

(r) "Shallow-land burial" means the disposal of low-level radioactive waste directly in subsurface trenches without additional confinement in engineered structures or by proper packaging in containers as determined by the law of the host state.

(s) "Transuranic waste" means low-level waste containing radionuclides with an atomic number greater than 92 which are excluded from shallow-land burial by the federal government.

Article 2

The Commission

(A) Creation and Organization.

(1) Creation -- There is hereby created the Appalachian States Low-Level Radioactive Waste Commission. The Commission is hereby created as a body corporate and politic, with succession for the duration of this Compact, as an agency and instrumentality of the governments of the respective signatory parties, but separate and distinct from the respective signatory party states. The Commission shall have central offices located in Pennsylvania.

(2) Commission Membership -- The Commission shall consist of two voting members from each party state to be appointed according to the laws of each party state, and two additional voting members from each host state to be appointed according to the laws of each host state. Upon selection of the site of the regional facility, an additional voting member shall be appointed to the Commission who shall be a resident of the county or municipality where the facility is to be located. The appointing authority of each party state shall notify the Commission in writing of the identities of the members and of any alternates. An alternate may vote and act in the member's absence. No member shall have a financial interest in any industry which generates low-level radioactive waste, any low-level radioactive waste regional facility or any related industry for the duration of the member's term. No more than one half the members and alternates from any party state shall have been employed by or be employed by a low-level waste generator or related industry upon appointment to or during their tenure of office: Provided, That no member shall have been employed by or be employed by a regional facility operator. No member or alternate from any party state shall accept employment from any regional facility operator or brokers for at least three years after leaving office.

(3) Compensation -- Members of the Commission and alternates shall serve without compensation from the Commission but may be reimbursed for necessary expenses incurred in and incident to the performance of their duties.

(4) Voting Power -- Each Commission member is entitled to one vote. Unless otherwise provided in this Compact, affirmative votes by a majority of a host state's members are necessary for the Commission to take any action related to the regional facility and the disposal and management of low-level waste within that host state.

(5) Organization and Procedure.

(a) The Commission shall provide for its own organization and procedures, and shall adopt bylaws not inconsistent with this Compact and any rules and regulations necessary to implement this Compact. It shall meet at least once a year in the county selected to host a regional facility and shall elect a chairman and vice chairman from among its members. In the absence of the chairman, the vice chairman shall serve.

(b) All meetings of the Commission shall be open to the public with at least fourteen days advance notice, except that the chairman may convene an emergency meeting with less advance notice. Each municipality and county selected to host a regional facility shall be specifically notified in advance of all Commission meetings. All meetings of the Commission shall be conducted in a manner that substantially conforms to the federal Administrative Procedure Act. The Commission may, by a two-thirds vote, including approval of a majority of each host state's Commission members, hold an Executive Session closed to the public for the purpose of: Considering or discussing legally privileged or proprietary information; to consider dismissal, disciplining of, or hearing complaints or charges brought against an employee or other public agent unless such person requests such public hearing; or to consult with its attorney regarding information or strategy in connection with specific litigation. The reason for the Executive Session must be announced at least fourteen days prior to the Executive Session except that the chairman may convene an emergency meeting with less advance notice in which case the reason for the Executive Session must be announced at the open meeting immediately subsequent to the Executive Session. All action taken in violation of this open meeting provision shall be null and void.

(c) Detailed written minutes shall be kept of all meetings of the Commission. All decisions, files, records and data of the Commission except for information privileged against introduction in judicial proceedings, personnel records, and minutes of a properly convened Executive Session shall be open to public inspection subject to a procedure that substantially conforms to the Freedom of Information Act (Public Law 89-554, 5 U.S.C. 552) and applicable West Virginia law, and may be copied upon request and payment of fees which shall be no higher than necessary to recover copying costs.

(d) The Commission shall select an appropriate staff, including an executive director, to carry out the duties and functions assigned by the Commission. Notwithstanding any other provision of law, the Commission may hire and/or retain its own legal counsel.

(e) Any person aggrieved by a final decision of the Commission which adversely affects the legal rights, duties or privileges of such person, may petition a court of competent jurisdiction, within sixty days after the Commission's final decision, to obtain judicial review of said final decisions.

(f) Liabilities of the Commission shall not be deemed liabilities of the party states. Members of the Commission shall not be personally liable for actions taken in their official capacity.

(B) Powers and Duties.

(1) The Commission:

(a) Shall conduct research and establish regulations to promote a reasonable reduction of volume and curie content of low-level wastes generated in the region. The regulations shall be reviewed and, if necessary, revised by the Commission at least annually.

(b) Shall ensure, to the extent authorized by federal law, that low-level wastes are safely disposed of within the region, except that the Commission shall have no power or authority to license, regulate or otherwise develop a regional facility, such powers and authority being reserved for the host state(s) as permitted under the law.

(c) Shall designate as "host states" any party state which generates twenty-five percent or more of Pennsylvania's volume or total curie content of low-level waste generated based on a comparison of averages over three successive years, as determined by the Commission. This determination shall be based on volume or total curie content, whichever is greater.

(d) Shall ensure, to the extent authorized by federal law, that low-level waste packages brought into the regional facility for disposal conform to applicable state and federal regulations. Low-level waste brokers or generators who violate these regulations will be subject to a fine or other penalty imposed by the Commission, including restricted access to a regional facility. The Commission may impose such fines and/or penalties in addition to any other penalty levied by the party states pursuant to Article 4(D).

(e) Shall establish such advisory committees as it deems necessary for the purpose of advising the Commission on matters pertaining to the management and disposal of low-level waste.

(f) May contract to accomplish its duties and effectuate its powers subject to projected available resources. No contract made by the Commission shall bind a party state.

(g) Shall prepare contingency plans for management and disposal of low-level waste in the event any regional facility should be closed or otherwise unavailable.

(h) Shall examine all records of operators of regional facilities pertaining to operating costs, profits or the assessment or collection of any charge, fee or surcharge, and may make recommendations to the host state(s) which shall review the recommendations in accordance with its (their) own sovereign laws.

(i) Shall have the power to sue and be sued subject to Article 2 (A) (5) (e) and may seek to intervene in any administrative or judicial proceeding.

(j) Shall assemble and make available to the party states and to the public, information concerning low-level waste management and disposal needs, technologies and problems.

(k) Shall keep current and annual inventories of all generators by name and quantity of low-level waste generated within the region, based upon information provided by the party states. Inventory information shall include both volume in cubic feet and total curie content of the low-level waste and all available information on chemical composition and toxicity of such wastes.

(l) Shall keep an inventory of all regional facilities and specialized facilities, including, but not necessarily restricted to, information on their size, capacity, and location, as well as specific wastes capable of being managed, and the projected useful life of each regional facility.

(m) Shall make and publish an annual report to the Governors of the signatory party states and to the public detailing its programs, operations and finances, including copies of the annual budget and the independent audit required by this Compact.

(n) Notwithstanding any other provision of this Compact to the contrary, may, with the unanimous approval of the Commission members of the host state(s), enter into temporary agreements with nonparty states or other regional boards for the emergency disposal of low-level waste at the regional facility, if so authorized by law(s) of the host state(s), or other disposal facilities located in states that are not parties to this agreement.

 (o) Shall promulgate regulations, pursuant to host state law, to specifically govern and define exactly what would constitute an emergency situation and exactly what restrictions and limitations would be placed on temporary agreements.

 (p) Shall not accept any donations, grants, equipment, supplies, materials or services, conditional or otherwise, from any source, except from any federal agency and from party states which are certified as being legal and proper under the laws of the donating party state.

(C) Budget and Operation.

(1) The Commission shall establish a fiscal year which conforms to the fiscal year of the Commonwealth of Pennsylvania.

(2) Upon legislative enactment of this Compact by two party states and each year until the regional facility becomes available, the Commission shall adopt a current expense budget for its fiscal year. The budget shall include the Commission's estimated expenses for administration. Such expenses shall be allocated to the party states according to the following formula:

Each designated initial host state will be allocated costs equal to twice the costs of the other party states, but such costs will not exceed $200,000.

Each remaining party state will be allocated a cost of one half the cost of the initial host state, but such costs will not exceed $100,000.

The party states will include the amounts allocated above in their respective budgets, subject to such review and approval as may be required by their respective budgetary processes. Such amounts shall be due and payable to the Commission in quarterly installments during the fiscal year.

(3) For continued funding of its activities, the Commission shall submit an annual budget request to each party state for funding, based upon the percentage of the region's waste generated in each state in the region, as reported in the latest available annual inventory required under Article 2 (B) (1) (k). The percentage of waste shall be based on volume of waste or total curie content as determined by the Commission.

(4) The Commission shall prepare and include in the annual report a budget showing anticipated receipts and disbursements for the ensuing year.

(5) Annual Independent Audit.

(a) As soon as practicable after the closing of the fiscal year, an audit shall be made of the financial accounts of the Commission. The audit shall be made by qualified certified public accountants selected by the Commission, who have no personal direct or indirect interest in the financial affairs of the Commission or any of its officers or employees. The report of audit shall be prepared in accordance with accepted accounting practices and shall be filed with the chairman and such other officers as the Commission shall direct. Copies of the report shall be distributed to each Commission member and shall be made available for public distribution.

(b) Each signatory party by its duly authorized officers shall be entitled to examine and audit at any time all of the books, documents, records, files and accounts and all other papers, things or property of the Commission. The representatives of the signatory parties shall have access to all books, documents, records, accounts, reports, files and all other papers, things or property belonging to or in use by the Commission and necessary to facilitate the audit; and, they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents and custodians.

Article 3

Rights, Responsibilities

and Obligations of Party States

(A) There shall be regional facilities sufficient to dispose of the low-level waste generated within the region. Each regional facility shall be capable of disposing of such low-level waste but in the form(s) required by regulations or license conditions. Specialized facilities for particular types of low-level waste management reduction or treatment may not be developed in any party state unless they are in accordance with the laws and regulations of such state and applicable federal laws and regulations.

(B) Each party state shall have equal access as other party states to regional facilities located within the region and accepting low-level waste: Provided, That the host state may close the regional facility located within its borders when necessary for public health and safety. However, a host state shall send notification to the Commission in writing within three (3) days of its action, and shall, within thirty (30) working days, provide in writing the reasons for the closing.

(C) Pennsylvania and party states which generated twenty-five percent or more of the volume or curies of low-level waste generated by Pennsylvania based on a comparison of averages over the three years, one thousand nine hundred eighty-two through one thousand nine hundred eighty-four, are designated as "initial host states" and are required to develop and host low-level waste sites as regional facilities. The percentage of waste from each state shall be determined by cubic foot volume or total curie content, whichever is greater.

(D) Party states which generated less than twenty-five percent of the volume or curies of low-level waste generated by Pennsylvania based on a comparison of averages over the years one thousand nine hundred eighty-two through one thousand nine hundred eighty-four shall be exempt from initial host state responsibilities. These states shall continue to be exempt as long as they generate less than the twenty-five percent threshold over successive three-year periods. Once a state generates an average of twenty-five percent or more of the volume or curies generated by Pennsylvania over a successive three-year period, it shall be designated as a "host state" for a thirty-year period by the Commission and shall immediately initiate development of a regional facility to be operational within five years. Such host state shall be prepared to accept at its regional facility low-level waste at least equal to that generated in the state. With Commission approval, any party state may volunteer to host a regional facility. The percentage of waste from each state shall be determined by either a cubic foot volume or total curie content, whichever is greater.

 (E) Pennsylvania and other host states are obligated to develop regional facilities for the duration of this Compact. All regional facilities shall be designed for at least a thirty-year useful life. At the end of the facility's life, normal closure and maintenance procedures shall be initiated in accordance with the applicable requirements of the host state and the federal government. Each host state's obligation for operating regional facilities shall remain as long as the state continues to produce over a three-year period twenty-five percent or more of the volume or curies of low-level waste generated by Pennsylvania.

(F) Each host state shall:

(1) Cause a regional facility to be sited and developed on a timely basis.

(2) Ensure by law, consistent with applicable state and federal law, the protection and preservation of public health, safety and environmental quality in the siting, design, development, licensure or other regulation, operation, closure, decommissioning long-term care and the institutional control period of the regional facility within the state. To the extent authorized by federal law, a host state may adopt more stringent laws, rules or regulations than required by federal law.

(3) Ensure and maintain a manifest system which documents all waste-related activities of generators, brokers, carriers and related activities of generators, brokers, carriers and operators, and establish the chain of custody of waste from its initial generation to the end of its hazardous life. Copies of all such manifests shall be submitted to the Commission on a timely basis.

 (4) Ensure that charges for disposal of low-level waste at the regional facility are sufficient to fully fund the safe disposal and perpetual care of the regional facility and that charges are assessed without discrimination as to the party state of origin.

 (5) Submit an annual report to the Commission on the status of the regional facility which contains projections of the anticipated future capacity.

(6) Notify the Commission immediately if any exigency arises requiring the possible temporary or permanent closure of a regional facility within the state at a time earlier than was projected in the state's most recent annual report to the Commission.

(7) Require that the institutional control period of any disposal facility be at least as long as the hazardous life, as defined in Article 1(h), of the radioactive materials that are disposed at that facility.

(8) Prohibit the use of any shallow land burial, as defined in Article 1(r), and develop alternative means for treatment, storage and disposal of low-level waste.

(9) Establish by law, to the extent not prohibited by federal law, requirements for financial responsibility, including, but not limited to:

(a) Requirements for the purchase and maintenance of adequate insurance by generators, brokers, carriers and operators of the regional facility;

(b) Requirements for the establishment of a long-term care fund to be funded by a fee placed on generators to pay for preventive or corrective measures of low-level waste to the regional facility; and

(c) Any further financial responsibility requirements that shall be submitted by generators, brokers, carriers and operators as deemed necessary by the host state.

(G) Each party state:

(1) Shall appropriate its portion of the Commission's initial and annual budgets as set out in Article 2 (C) (2) and (3).

(2) To the extent authorized by federal law, shall develop and enforce procedures requiring low-level waste shipments originating within its borders and destined for a regional facility to conform to volume reduction, packaging and transportation requirements and regulations as well as any other requirements specified by the regional facility. Such procedures shall include but are not limited to:

(i) Periodic inspections of packaging and shipping practices;

(ii) Periodic inspections of low-level waste containers while in custody of carriers; and

(iii) Appropriate enforcement actions with respect to violations.

(3) To the extent authorized by federal law, shall after receiving notification from a host state, or other person, that a person in a party state has violated volume reduction, packaging, shipping or transportation requirements or regulations, take appropriate action to ensure that violations do not recur. Appropriate action shall include, but is not limited to, the requirement that a bond be posted by the violator to pay the cost of repackaging at the regional facility and the requirement that future shipments be inspected. Appropriate action may also include suspension of the violator's use of the regional facility. Should such suspension be imposed, the suspension shall remain in effect until such time as the violator has, to the satisfaction of the party state imposing such suspension, complied with the appropriate requirements or regulations upon which the suspension was based and has taken appropriate action to ensure that such violation or violations do not recur.

(4) Shall maintain a registry of all generators and quantities generated within the state.

(H) In the event of liability arising from the operation of any regional facility and during and after closure of that facility, each party state shall share in that liability in an amount equal to that state's share of the region's low-level waste disposed of at the facility. If such liability arises from negligence, malfeasance or neglect on the part of a host state or any party state, then any other host or party state(s) may make any claim allowable under law for that negligence, malfeasance or neglect. If such liability arises from a particular waste shipment or shipments to, or quantity of waste or condition at, the regional facility, then any host or party state may make any claim allowable under law for such liability. The percentage of waste shall be based on volume of waste or total curie content.

(I) A party state which fails to fulfill its obligations, including timely funding of the Commission may have its privileges under the Compact suspended or its membership in the Compact revoked by the Commission and be subject to any other legal and equitable remedies available to the party states.

Article 4

Prohibited Acts and Penalties

(A) It shall be unlawful for any person to dispose of low-level waste within the region except at a regional facility unless authorized by the Commission.

(B) After establishment of the regional facility or facilities, it shall be unlawful for any person to dispose of any low-level waste within the region unless the waste was generated within the region or unless authorized to do so both by the Commission and by law of the host state in which said disposal takes place. For the purposes of this Compact, waste generated within the region excludes radioactive material shipped from outside the party states to a waste management facility within the region. In determining whether to grant such authorization, the factors to be considered by the Commission shall include, but not be limited to, the following:

(1) The impact on the health, safety and environmental quality of the citizens of the party states;

(2) The impact of importing waste on the available capacity and projected life of the regional facility;

(3) The availability of a regional facility appropriate for the safe disposal of the type of low-level waste involved.

(C) Any and all low-level waste generated within the region shall be disposed of at a regional facility, except for specific cases agreed upon by the Commission, with the affirmative votes by a majority of the Commission members of the host state(s) affected by the decision.

(D) Generators, brokers and carriers of wastes, and owners and operators of sites shall be liable for their acts, omissions, conduct or relationships in accordance with all laws relating thereto. The party states shall impose a fine for any violation in an amount equal to the present and future costs associated with correcting any harm caused by the violation and shall assess punitive fines or penalties if it is deemed necessary. In addition, the host state shall bar any person who violates host state or federal regulations from using the regional facility until that person demonstrates to the satisfaction of the host state their ability and willingness to comply with the law.

(E) No commissioner, officer or employee shall:

(1) Be financially interested, either directly or indirectly, in a contract, sale, purchase, lease or transfer of real or personal property to which the Commission is a party.

(2) Solicit or accept money or any other thing of value in addition to the expenses paid to him by the Commission for services performed within the scope of his official duties.

(3) Offer money or anything of value for or in consideration of obtaining an appointment, promotion or privilege in his employment with the Commission.

(F) Any officer or employee who shall willfully violate any of the provisions of this article shall forfeit his office or employment.

(G) Any contract or agreement knowingly made in contravention of this section is void.

(H) Officers and employees of the Commission shall be subject, in addition to the provisions of this section, to such criminal and civil sanctions for misconduct in office as may be imposed by federal law and the law of the signatory state in which such misconduct occurs.

 Article 5

 Eligibility, Entry into Effect,

 Congressional Consent, Withdrawal

(A) Only the states of Pennsylvania, West Virginia, Delaware and Maryland are eligible to become parties to this Compact.

(B) An eligible state may become a party state by legislative enactment of this Compact or by executive order of the Governor adopting this Compact: Provided, That a state becoming a party state by executive order shall cease to be a party state upon adjournment of the first general session of its Legislature convened thereafter, unless the Legislature shall have enacted this Compact before such adjournment.

(C) This Compact shall take effect when it has been enacted by the Legislatures of Pennsylvania and one or more eligible states. However, subsections (B) and (C) of Article 4 shall not take effect until Congress has consented to this Compact. Every fifth year after such consent has been given, Congress may withdraw consent.

(D) A party state may withdraw from the Compact by repealing the enactment of this Compact, but no such withdrawal shall become effective until two years after enactment of the repealing legislation. If the withdrawing state is a host state, any regional facility in that state shall remain available to receive low-level waste generated within the fran region until five years after the effective date of the withdrawal.

Article 6

Construction and Severability

(A) The provisions of this Compact shall be broadly construed to carry out the purposes of the Compact, but the sovereign powers of a party state shall not unnecessarily be infringed.

(B) If any part or application of this Compact is held invalid, the remainder, or its application to other situations or persons, shall not be affected.

§29-1H-2. Appointment of members of commission.

In pursuance of Article 2 of the Compact, the Governor of the State of West Virginia, by and with the advice and consent of the Senate, shall appoint two persons as members of the Appalachian States Low-Level Radioactive Waste Commission from the State of West Virginia, each of whom shall be a resident and citizen of the state. The term of the member of the Commission first appointed shall be two years and of the other shall be four years, and their successors shall be appointed by the Governor, by and with the advice and consent of the Senate, for terms of four years each. Each member of the Commission shall hold office until his successor has been appointed and qualified. Vacancies occurring in the office of any such member for any reason or cause shall be filled by appointment by the Governor, by and with the advice and consent of the Senate, for the unexpired term.

§29-1H-3. Powers of commission, duties of state officers, departments, etc.

There is hereby granted to the Commission and members of the Commission all of the powers provided for in the Compact and all the powers necessary or incidental to the carrying out of the Compact in every particular. All officers of this state are hereby authorized and directed to do all things falling within their respective provinces and jurisdiction necessary to or incidental to the carrying out of the Compact in every particular, it being hereby declared to be the policy of this state to perform and carry out the Compact and to accomplish the purposes thereof. The director of health shall have the primary responsibility therefor.

§29-1H-4. Powers granted herein supplemental to other powers vested in Commission.

Any powers herein granted to the Commission shall be regarded as in aid of and supplemental to and in no case a limitation upon any of the powers vested in the Commission by other laws of this state, by the other party states, by Congress or the terms of the Compact.

§29-1H-5. Cooperation of state agencies, boards, departments, subdivisions, etc.

The departments, boards, agencies, commissions, officers and employees of the state and its subdivisions are authorized and directed to cooperate with the director of health in the furtherance of any of his activities pursuant to the Appalachian States Low-Level Radioactive Waste Compact and the provisions of this article.

§29-1H-6. Rules and regulations.

The director of health is authorized to promulgate and adopt rules and regulations as are necessary and incidental to the carrying out of the Compact and this article. Such authorization shall include, without limitation, rules and regulations necessary and incidental to carrying out subsection two, section (g), article three of the Compact. Such rules and regulations shall be promulgated only in accordance with article three, section twenty-nine-a of this code.

§29-1H-7. Enforcement.

(a) Following the establishment of a regional facility pursuant to the Appalachian States Low-Level Radioactive Waste Compact, the director of health, the Attorney General or the prosecuting attorney of any county in which a violation occurs may seek in the name of the state an injunction against any person in violation of any of the provisions of said Compact, this article or the rules and regulations promulgated pursuant to said Compact or this article. In seeking such an injunction it is not necessary for the state to post bond nor to allege or prove at any stage of the proceeding that irreparable harm will occur if the injunction is not issued or that the remedy of the law is inadequate. An application for injunctive relief under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for have not been exhausted or invoked against the person or persons against whom such relief is sought.

(b) The director of health is hereby authorized to remedy or to contract to remedy any condition he deems a threat to public health and safety arising from a violation of the Appalachian States Low-Level Radioactive Waste Compact, this article or the rules and regulations promulgated pursuant to the Compact or this article and to proceed pursuant to subsection (c) of this section to recover judgment for the costs thereof.

(c) Pursuant to section (d), Article 4 of the Appalachian States Low-level Radioactive Waste Compact, the director of health and the Attorney General are hereby authorized to prosecute actions for judgments pursuant to subsection (b) of this section. The director of health and the Attorney General are further authorized to institute actions to assess punitive fines or penalties pursuant to section (d), Article 4 of the Compact for violations of the Compact, this article or rules or regulations promulgated pursuant to the Compact or this article. Such actions may be brought at the option of the state in the circuit court of any county in which a violation occurred or may be brought as a contested case pursuant to chapter twenty-nine-a of this code. In any action brought under the provisions of chapter twenty-nine-a of this code, the director of health or the Attorney General shall have the power to issue subpoenas and subpoenas duces tecum on behalf of the state or any interested party. The punitive fines and penalties may not exceed the fines provided in section eight of this article and may only be sought in lieu thereof.

§29-1H-8. Penalties.

(a) Any person who after the establishment of a regional facility pursuant to the Appalachian States Low-Level Radioactive Waste Compact violates or causes to be violated the provisions of section (a) or section (b), Article 4 of the Compact or any of the provisions of or regulations regarding packaging and transportation promulgated pursuant to subsection two, section (g), Article 3 of the Compact is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $25,000 for each day of violation, or imprisoned in the penitentiary not less than one nor more than five years, or both fined and imprisoned. If the conviction is for a violation committed after a first conviction of such person under this subsection, the person shall be guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $50,000 for each day of violation, or shall be imprisoned not less than two nor more than ten years, or both fined and imprisoned.

(b) Any person who after the establishment of a regional facility pursuant to this Compact violates or causes to be violated the provisions of any rules and regulations regarding volume reduction promulgated pursuant to subsection two, section (g), Article 3 of the Compact is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $2,500 for each day of such violation, or imprisoned in the county jail not less than one nor more than five months, or both fined and imprisoned. If the conviction is for a violation committed after a first conviction of such person under this subsection, the person shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than $1,000 nor more than $25,000 for each day of such violation, or shall be imprisoned not less than two nor more than ten years, or both fined and imprisoned.

§29-1H-9. Conflicting laws.

In the event the provisions of the Appalachian States Low- Level Radioactive Waste Compact, this article or any rules and regulations lawfully promulgated thereunder shall be or become inconsistent with any other provisions of this code, the provisions of the Appalachian States Low-Level Radioactive Waste Compact and this article and the rules and regulations lawfully promulgated thereunder shall prevail to the extent of such inconsistency and the conflicting provisions shall be null and void to the extent of such inconsistency.

§29-1H-10. Fiscal implementation.

The term "budgetary processes" in Article 2(C)(2) of the Compact shall be construed to include the presentation by the Commission of its proposed budget for each fiscal period to the budget office of the department of finance and administration for study and consideration, and each such budget shall include a statement of moneys required to administer, manage and support the Commission during the ensuing fiscal period. The statement shall include any request for appropriation of funds by the State of West Virginia and shall be accompanied by a tabulation of similar requests which the Commission makes or expects to make to each other signatory party, and the formula or factors upon which such respective requests are based. The Governor is authorized to take such action as may be necessary and proper in his discretion to effectuate the Compact, and the initial organization and operation of the Commission, and the Legislature may appropriate such funds as it considers necessary to carry out the provisions of this article.

§29-1H-11. When article effective.

This article shall take effect and become operative and the Compact be executed for and on behalf of this state only from and after the approval, ratification and adoption, and entering into thereof by the Commonwealth of Pennsylvania.

§29-1I-1. Legislative intent.

The intent of this legislation is to authorize and provide funding for the design, construction and maintenance of a veterans memorial on the grounds of the state Capitol complex in Charleston.

The funding of this memorial shall be derived from a voluntary check-off and contribution designation on state personal income tax return forms of a portion or all of a taxpayer's refund. The funding so provided shall be supplemental to any other revenues obtained for the memorial.

§29-1I-2. Voluntary check-off designation.

The Tax Commissioner shall cause each West Virginia personal income tax return form to contain a provision whereby the taxpayer (and his spouse if a joint return) may designate a portion or all of his tax refund to the West Virginia voluntary veterans memorial check-off program. The contribution so made shall be credited to said program.

§29-1I-3. Contributions credited to special fund.

The tax department shall determine by July 1, of each year the total amount designated pursuant to this article and shall report such amount to the state Treasurer who shall credit such amount to a special department of culture and history fund.

§29-1I-4. Use of funds.

The funds shall be used for the purpose of designing, constructing and maintaining a veterans memorial on the grounds of the state Capitol complex in Charleston under the supervision of the commissioner of culture and history with the advice of the department of veterans' affairs and the Governor. The commissioner of culture and history shall on January 15, each year furnish the Legislature with a report stating the amount of money that has been provided and how such moneys have been expended.

§29-1I-5. Effective date.

This article shall apply to all personal income tax returns required to be filed on and after July 1, 1988, and before July 1, 1991.

§29-1J-1. Jennings Randolph Lake Project Compact authorized.

The Governor is hereby authorized and directed to execute a compact on behalf of the State of West Virginia with the state of Maryland, with participation through concurrence by the United States army corps of engineers legally joining in the form substantially as follows:

JENNINGS RANDOLPH LAKE PROJECT COMPACT

PREAMBLE

Whereas, The signatory parties hereto desire to provide for joint natural resource management and enforcement of laws and regulations pertaining to natural resources and boating at the Jennings Randolph Lake Project lying in Garrett County, Maryland, and Mineral County, West Virginia, for which they have a joint responsibility; and they declare as follows:

a. The Congress, under Public Law 87-874, authorized the development of the Jennings Randolph Lake Project for the North Branch of the Potomac River substantially in accordance with House Document Number 469, 87th Congress, 2nd Session for flood control, water supply, water quality and recreation; and

b. Section 4 of the Flood Control Act of 1944 (CH 665, 58 STAT.534) provides that the chief of engineers, under the supervision of the secretary of war (now secretary of the army), is authorized to construct, maintain and operate public park and recreational facilities in reservoir areas under control of such secretary for the purpose of boating, swimming, bathing, fishing and other recreational purposes, so long as the same is not inconsistent with the laws for the protection of fish and wildlife of the state(s) in which such area is situated; and

c. Pursuant to the authorities cited above, the U.S. army engineer district (Baltimore), hereinafter "District," did construct and now maintains and operates the Jennings Randolph Lake Project; and

d. The National Environmental Policy Act of 1969 (P.L. 91-190) encourages productive and enjoyable harmony between man and his environment, promotes efforts which will stimulate the health and welfare of man, and encourages cooperation with state and local governments to achieve these ends; and

e. The Fish and Wildlife Coordination Act (16 U.S.C. 661-666C) provides for the consideration and coordination with other features of water-resource development programs through the effectual and harmonious planning, development, maintenance and coordination of wildlife conservation and rehabilitation; and

f. The District has fisheries and wildlife plans as part of the District's project operational plan management; and

g. In the respective states, the Maryland department of natural resources (hereinafter referred to as Maryland DNR) and the West Virginia Division of Natural Resources (hereinafter referred to as West Virginia DNR) are primarily responsible for providing a system of control, propagation, management, protection and regulation of natural resources and boating in Maryland and West Virginia and the enforcement of laws and regulations pertaining to those resources as provided in annotated code of Maryland natural resources article and West Virginia chapter 20, respectively, and the successors thereof; and

h. The District, the Maryland department of natural resources and the West Virginia Division of Natural Resources are desirous of conserving, perpetuating and improving fish and wildlife resources and recreational benefits of the Jennings Randolph Lake Project; and

i. The District and the states of Maryland and West Virginia wish to implement the aforesaid acts and responsibilities through this compact and they each recognize that consistent enforcement of the natural resources and boating laws and regulations can best be achieved by entering this compact:

Now, therefore

The states of West Virginia and Maryland, with the concurrence of the United States department of the army, corps of engineers, hereby solemnly covenant and agree with each other, upon enactment of concurrent legislation by the Congress of the United States and by the respective State Legislatures, to the Jennings Randolph Lake Project Compact, which consists of this preamble and the articles that follow:

ARTICLE I. NAME, FINDINGS AND PURPOSE.

a. This compact shall be known and may be cited as the Jennings Randolph Lake Project Compact.

b. The legislative bodies of the respective signatory parties, with the concurrence of the U.S. army corps of engineers, hereby find and declare:

1. The water resources and project lands of the Jennings Randolph Lake Project are affected with local, state, regional and national interest, and the planning, conservation, utilization, protection and management of these resources, under appropriate arrangements for intergovernmental cooperation, are public purposes of the respective signatory parties; and

2. The lands and waters of the Jennings Randolph Lake Project are subject to the sovereign rights and responsibilities of the signatory parties, and it is the purpose of this compact that, notwithstanding any boundary between Maryland and West Virginia that preexisted the creation of Jennings Randolph Lake, the parties will have and exercise concurrent jurisdiction over any lands and waters of the Jennings Randolph Lake Project concerning natural resources and boating laws and regulations in the common interest of the people of the region.

ARTICLE II. DISTRICT RESPONSIBILITIES.

The District, within the Jennings Randolph Lake Project,

 a. Acknowledges that the West Virginia Division of Natural Resources and the Maryland department of natural resources have authorities and responsibilities in the establishment, administration and enforcement of the natural resources and boating laws and regulations applicable to this project: Provided, That the laws and regulations promulgated by the states support and implement, where applicable, the intent of the rules and regulations governing public use of water resources development projects administered by the chief of engineers in Title 36, Chapter III, Part 327, Code of Federal Regulations,

b. Agrees to practice those forms of resource management as determined jointly by the District, the West Virginia Division of Natural Resources and the Maryland department of natural resources to be beneficial to natural resources and which will enhance public recreational opportunities compatible with other authorized purposes of the project,

c. Agrees to consult with the West Virginia Division of Natural Resources and the Maryland department of natural resources prior to the issuance of any permits for activities or special events which would include, but not necessarily be limited to, fishing tournaments, training exercises, regattas, marine parades, placement of ski ramps, slalom water ski courses and the establishment of private markers or lighting. All such permits issued by the District will require the permittee to comply with all state laws and regulations,

d. Agrees to consult with the West Virginia Division of Natural Resources and the Maryland department of natural resources regarding any recommendations for regulations affecting natural resources including, but not limited to, hunting, trapping, fishing or boating at the Jennings Randolph Lake Project which the District believes might be desirable for reasons of public safety, administration, or public use and enjoyment,

e. Agrees to consult with the West Virginia Division of Natural Resources and the Maryland department of natural resources relative to the marking of the lake with buoys, aids to navigation, regulatory markers and establishing and posting of speed limits, no wake zones, restricted or other control areas and to provide, install and maintain such buoys, aids to navigation and regulatory markers as are necessary for the implementation of the District's operational management plan. All buoys, aids to navigation and regulatory markers to be used shall be marked in conformance with the uniform state waterway marking system,

f. Agrees to allow hunting, trapping, boating and fishing by the public in accordance with the laws and regulations relating to the Jennings Randolph Lake Project.

g. Agrees to provide, install and maintain public ramps, parking areas, courtesy docks, etc., as provided for by the approved Corps of Engineers master plan, and

h. Agrees to notify the West Virginia Division of Natural Resources and the Maryland department of natural resources of each reservoir drawdown prior thereto excepting drawdown for the reestablishment of normal lake levels following flood control operations and drawdown resulting from routine water control management operations described in the reservoir regulation manual including releases requested by water supply owners and normal water quality releases. In case of emergency releases or emergency flow curtailments, telephone or oral notification will be provided. The District reserves the right, following issuance of the above notice, to make operational and other tests which may be necessary to ensure the safe and efficient operation of the dam, for inspection and maintenance purposes, and for the gathering of water quality data both within the impoundment and in the Potomac River downstream from the dam.

ARTICLE III. STATE RESPONSIBILITIES.

The state of West Virginia and the state of Maryland agree:

a. That each state will have and exercise concurrent jurisdiction with the District and the other state for the purpose of enforcing the civil and criminal laws of the respective states pertaining to natural resources and boating laws and regulations over any lands and waters of the Jennings Randolph Lake Project;

b. That existing natural resources and boating laws and regulations already in effect in each state shall remain in force on the Jennings Randolph Lake Project until either state amends, modifies or rescinds its laws and regulations;

c. That the agreement for fishing privileges dated the June 24, 1985, between the State of West Virginia and the state of Maryland, as amended, remains in full force and effect;

d. To enforce the natural resources and boating laws and regulations applicable to the Jennings Randolph Lake Project;

e. To supply to the District with the name, address and telephone number of the persons to be contacted when any drawdown except those resulting from normal regulation procedures occurs;

f. To inform the reservoir manager of all emergencies or unusual activities occurring on the Jennings Randolph Lake Project;

g. To provide training to District employees in order to familiarize them with natural resources and boating laws and regulations as they apply to the Jennings Randolph Lake Project; and

h. To recognize that the District and other federal agencies have the right and responsibility to enforce, within the boundaries of the Jennings Randolph Lake Project, all applicable federal laws, rules and regulations so as to provide the public with safe and healthful recreational opportunities and to provide protection to all federal property within the project.

ARTICLE IV. MUTUAL COOPERATION.

Pursuant to the aims and purposes of this compact, the State of West Virginia, the state of Maryland and the District mutually agree that representatives of their natural resource management and enforcement agencies will cooperate to further the purposes of this compact. This cooperation includes, but is not limited to, the following:

a. Meeting jointly at least once annually, and providing for other meetings as deemed necessary for discussion of matters relating to the management of natural resources and visitor use on lands and waters within the Jennings Randolph Lake Project;

b. Evaluating natural resources and boating, to develop natural resource and boating management plans and to initiate and carry out management programs;

c. Encouraging the dissemination of joint publications, press releases or other public information and the interchange between parties of all pertinent agency policies and objectives for the use and perpetuation of natural resources of Jennings Randolph Lake Project; and

d. Entering into working arrangements as occasion demands for the use of lands, waters, construction and use of buildings and other facilities at the project.

ARTICLE V. GENERAL PROVISIONS.

a. Each and every provision of this compact is subject to the laws of the states of West Virginia and Maryland and the laws of the United States, and the delegated authority in each instance.

b. The enforcement and applicability of natural resources and boating laws and regulations referenced in this compact shall be limited to the lands and waters of the Jennings Randolph Lake Project, including, but not limited to, the prevailing reciprocal fishing laws and regulations between the states of West Virginia and Maryland.

c. Nothing in this compact shall be construed as obligating any party hereto to the expenditure of funds or the future payment of money in excess of appropriations authorized by law.

d. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of the Jennings Randolph Lake Project Compact is declared to be unconstitutional or inapplicable to any signatory party or agency of any party, the Constitutionality and applicability of the compact shall not be otherwise affected as to any other provision, party or agency. It is the legislative intent that the provisions of this compact be reasonably and liberally construed to effectuate the stated purposes of the compact.

e. No member of or delegate to Congress, or signatory shall be admitted to any share or part of this compact, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this agreement if made with a corporation for its general benefit.

f. When this compact has been ratified by the Legislature of each respective state, when the Governor of West Virginia and the Governor of Maryland have executed this compact on behalf of their respective states and have caused a verified copy thereof to be filed with the Secretary of State of each respective state, when the Baltimore district engineer of the U.S. army corps of engineers has executed its concurrence with this compact, and when this compact has been consented to by the Congress of the United States, then this compact shall become operative and effective.

g. Either state may, by legislative act, after one year's written notice to the other, withdraw from this compact, the U.S. army corps of engineers may withdraw its concurrence with this compact upon one year's written notice from the Baltimore district engineer to the Governor of each state.

h. This compact may be amended from time to time.

Each proposed amendment shall be presented in resolution form to the Governor of each state and the Baltimore district engineer of the U.S. army corps of engineers. An amendment to this compact shall become effective only after it has been ratified by the Legislatures of both signatory states and concurred in by the U.S. army corps of engineers, Baltimore district. Amendments shall become effective thirty days after the date of the last concurrence or ratification.

§29-1J-2. Date on which article becomes effective.

This article shall take effect and become operative and the compact be executed for and on behalf of this state only from and after the approval, ratification, and adoption, and entering into thereof by the state of Maryland and with the concurrence of the United States army corps of engineers, Baltimore, Maryland district.

§29-2-1. Entry on lands for surveying under federal acts.

It shall be lawful for any person or persons employed under and by virtue of an act of the Congress of the United States, passed February the tenth, eighteen hundred and seven, and all acts supplemental thereto, at any time hereafter to enter upon lands within this state for the purpose of exploring, surveying, triangulating or leveling, or doing any other matter or thing which may be necessary to effect the objects of said act; and to erect any works, stations, buildings or appendages requisite for that purpose, doing no unnecessary injury to private or other property.

§29-2-2. Condemnation of land for such purposes.

In case the person or persons employed under the act of Congress aforesaid, or acts supplemental thereto, cannot agree with the owners or possessors of the land so entered upon and used as to the amount of damages done thereto by reason of the removal of fences, cutting of trees, or injury to the crop or crops growing on the same, it shall be lawful for such parties, or either of them, to apply, in the name of the United States of America, to the circuit court of the county to have the same condemned, and such application shall be proceeded in, tried and determined, in all respects as provided in chapter fifty-four of this code.

§29-2-3. Unlawful interference with signal, monument or building; penalty.

If any person or persons shall wilfully injure, deface or remove any signal, monument, or building, or any appendage thereto, erected, used or constructed under and by virtue of the act of Congress aforesaid, or any act or acts supplemental thereto, such persons so offending shall severally forfeit and pay the sum of $50 with the costs of suit, to be sued for and recovered by any person who shall first prosecute the same before any justice of the peace of the county where the person so offending may reside, and shall also be liable to pay the amount of damages thereby sustained, to be recovered with the cost of the suit in an action on the case, in the name and for the use of the United States of America, in any court of competent jurisdiction.

§29-2-4. State geological and economic survey director; qualifications for appointment; administrative powers and duties.

The Governor shall appoint as director of the survey a geologist of established reputation. At the time of his or her initial appointment, the director must be at least thirty years of age and must be selected with special reference and consideration given to his or her administrative experience and ability and to his or her demonstrated interest in the effective and responsible management of the state geological and economic survey. The director must have a master's degree in geology or in a related field and at least three years of experience in a position of responsible charge in at least one discipline relating to the duties and responsibilities for which the director will be responsible upon assumption of the office. The director may not be a candidate for or hold any other public office, may not be a member of any political party committee and shall immediately forfeit and vacate his or her office as director in the event he or she becomes a candidate for or accepts appointment to any other public office or political party committee.

The director may employ such assistants and employees as he may deem necessary. He shall also determine the compensation of all persons employed by the survey and may remove them at pleasure.

The director may set such reasonable fees as may be necessary to recover additional costs incurred in performing geological and analytical analyses. These fees shall be deposited in the state Treasury in a special revenue account to be known as the "Geological and Analytical Services Fund". The director is hereby authorized to expend such funds, as are appropriated by the Legislature, from this fund for the purpose of defraying said costs.

§29-2-5. Objects of survey.

The survey shall have for its objects:

(a) An examination of the geological formations of the state, with special reference to their economic products, namely: Building stones and other constructive materials and resources, clays, ores and other mineral substances and fuels, the prevention of their waste, and the utilization of by- products;

(b) An examination of the physical features of the state with reference to their practical bearing upon the occupations of the people, the industrial development and the material prosperity of the several portions of the state, having due regard to their varying resources, conditions and needs;

(c) The preparation of special geological and economic maps to illustrate the resources of the state;

(d) The preparation of special reports, with necessary illustrations and maps, which shall embrace both a general and detailed description of the geology and natural resources of the state;

(e) The consideration of such other scientific and economic questions as in the judgment of the director shall be deemed of value to the people of the state. The director may enter into cooperative agreements, grants and contracts and establish accounts for such purposes.

§29-2-6. Reports to Legislature.

The director shall cause to be prepared a report to the Legislature before each meeting of the same, showing the progress and condition of the survey, together with such other information as he may deem necessary and useful or as the Legislature may require.

§29-2-7. Distribution of reports.

The regular and special reports of the survey, with proper illustrations and maps, shall be printed as the director may direct, and the reports shall be distributed or sold by the director as the interests of the state, the diffusion of practical information relating to the development of the state, and the advancement of science, may demand. All moneys obtained by the sales of the reports may be used to defray the costs of publication and their distribution to the people, and any balance may be retained for that purpose.

§29-2-8. Distribution of surplus materials.

All materials collected, after having served the purpose of the survey, shall be distributed by the director to the educational institutions in such manner as to be of the greatest advantage to the educational interests of the state. If deemed advisable, all or part of such material may be put on permanent exhibition or otherwise disposed of in an appropriate manner.

§29-2-9. Right of engineers and surveyors to enter on property.

The engineers, surveyors and other persons employed by and acting for said survey, and all such persons employed by and acting for the United States geological survey, or other department of the United States government, having for their purposes the obtainment and diffusion of practical information relating to the resources and development of the state, the advancement of science, and the carrying out of the objects of the state geological and economic survey, shall have the right to enter upon all lands, either public or private, and into all mines, for the purpose of exploring, surveying, or doing any other thing which may be necessary to effect such objects, and examine any property, products or developments, relating to the objects of said survey, within the state, without molestation or arrest, and without being liable to the owners thereof, except for actual damages done to the property.

§29-2-10.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-2A-1. Definitions.

[Repealed].

§29-2A-2. Short title; continuation of commission; membership and compensation; quorum.

[Repealed].

§29-2A-3. Powers and duties of commission.

[Repealed].

§29-2A-3a

Repealed

Acts, 2017 Reg. Sess., Ch. 202.

§29-2A-4. Organization of commission; meetings; reports; offices.

[Repealed].

§29-2A-5. Director of aeronautics; appointment, qualifications, compensation, powers and duties; staff.

[Repealed].

§29-2A-6. State financial assistance for county, municipal, and regional airports.

[Repealed].

§29-2A-7. Federal aid.

[Repealed].

§29-2A-8. Establishment and operation of state airports.

[Repealed].

§29-2A-9

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-10. Public purpose of activities.

[Repealed].

§29-2A-11. Operation of aircraft while under influence of alcohol, controlled substances or drugs; criminal penalties.

[Repealed].

§29-2A-11a. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.

[Repealed].

§29-2A-11b. Preliminary analysis of breath to determine alcoholic content of blood.

[Repealed].

§29-2A-11c. How blood test administered; additional test at option of person tested; use of test results; certain immunity from liability incident to administering test.

[Repealed].

§29-2A-11d. Interpretation and use of chemical test.

[Repealed].

§29-2A-11e. Right to demand test.

[Repealed].

§29-2A-11f. Fee for withdrawing blood sample and making urine test; payment of fees.

[Repealed].

§29-2A-12. Operation of aircraft at low altitude or in careless and reckless manner; penalty.

[Repealed].

§29-2A-13. Unauthorized taking or operation of aircraft; penalty.

[Repealed].

§29-2A-14. Federal license required for operation of aircraft.

[Repealed].

§29-2A-15.

Repealed.

Acts, 1995 Reg. Sess., Ch. 3.

§29-2A-16.

Repealed.

Acts, 1995 Reg. Sess., Ch. 3.

§29-2A-17

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-18

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-19

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-20. Enforcement of aeronautics laws.

[Repealed].

§29-2A-21

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-22

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-23

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-24

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-25

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-26

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-27

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-28

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2B-1.

Repealed.

Acts, 1995 Reg. Sess., Ch. 3.

§29-3-1. Short title.

[Repealed]

§29-3-2. Legislative findings and declaration of policy.

[Repealed.]

§29-3-3. State Fire Commission created; composition; qualifications; appointment; terms of office; removal; vacancies; compensation and expenses.

[Repealed.]

§29-3-4. Chairman; vice chairman; meetings; quorum.

[Repealed.]

§29-3-5. Promulgation of rules and State Fire Code.

[Repealed.]

§29-3-5a. Hazardous substance emergency response training programs.

[Repealed.]

§29-3-5b. Promulgation of rules and statewide building code.

[Repealed.]

§29-3-5c. Liquified petroleum gas systems.

[Repealed.]

§29-3-5d. Volunteer firefighters’ training.

[Repealed.]

§29-3-6. Public hearings and notice.

[Repealed.]

§29-3-7. Commission’s powers in conduct of public hearing.

[Repealed.]

§29-3-8. Comprehensive report by State Fire Marshal.

[Repealed.]

§29-3-9. Powers, duties and authority of State Fire Commission and State Fire Marshal.

[Repealed.]

§29-3-10. State fire marshal’s office transferred to state Fire Commission; powers and duties of state Insurance Commissioner with respect to fire marshal terminated; operation of commission prior to adoption of code.

[Repealed.]

§29-3-11. Appointment of State Fire Marshal; term of office; removal; salary; qualifications; responsibilities; employees; equipment.

[Repealed.]

§29-3-12. Powers and duties of State Fire Marshal.

[Repealed.]

§29-3-12a. Responsibilities of insurance companies in fire loss investigation.

[Repealed.]

§29-3-12b. Fees.

[Repealed.]

§29-3-13. Annual reports.

[Repealed]

§29-3-14. Maintenance of fire hazard; order for repair or demolition; order to contain notice to comply and right to appeal.

[Repealed.]

§29-3-15. Service of repair or demolition order.

[Repealed.]

§29-3-16. Work to be done at expense of owner or occupant upon failure to comply with repair or demolition order; action to recover.

[Repealed.]

§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units, schools, and daycare facilities; penalty.

[Repealed.]

§29-3-16b. Use of live trees in public buildings; exceptions.

[Repealed.]

§29-3-16c. Safety standards for bed and breakfast establishments; findings.

[Repealed.]

§29-3-16d. Performance of installation of propane gas systems.

[Repealed.]

§29-3-17. Additional remedies to abate, etc., fire hazards.

[Repealed.]

§29-3-18. Appellate procedure generally.

[Repealed.]

§29-3-19. Establishment of demonstration buildings and equipment for educational instruction in fire prevention and protection; payment therefor.

[Repealed.]

§29-3-20.

Repealed.

Acts, 2001 Reg. Sess., Ch. 131.

§29-3-21. False alarm of fire; penalties.

[Repealed.]

§29-3-22. Tax on insurance companies.

[Repealed.]

§29-3-23

Repealed.

Acts, 2016 Reg. Sess., Ch. 121

§29-3-24

Repealed.

Acts, 2016 Reg. Sess., Ch. 121

§29-3-25

Repealed.

Acts, 2016 Reg. Sess., Ch. 121

§29-3-26

Repealed.

Acts, 2016 Reg. Sess., Ch. 121

§29-3-27. Penalties.

[Repealed.]

§29-3-28. Transfer of certain state employees; perpetuation of rules, regulations and orders.

[Repealed.]

§29-3-29. Construction.

[Repealed.]

§29-3-30. Severability.

[Repealed.]

§29-3-31.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-3-32. Awarding service weapon upon retirement of fire marshal or service weapon.

[Repealed]

§29-3A-1. Authority of fire officers in charge of fire, service call or other emergency; definition.

(a) While any fire department recognized or approved by the West Virginia State Fire Commission is responding to, operating at or returning from a fire, fire hazard, service call or other emergency, the fire chief, any other elected or appointed fire line officer or any member serving in the capacity of appointed fire line officer in charge, except on industrial property where trained industrial firefighting personnel are present, shall have the authority:

(1) To control and direct firefighting and fire control activities at such scene;

(2) To order any person or persons to leave any building or place in the vicinity of such scene for the purpose of protecting such persons from injury;

(3) To blockade any public highway, street or private right-of-way temporarily while at such scene in accordance with the following provisions:

(A) If the emergency incident occurs on a public highway and it is reasonably expected that the highway may be closed for a period of at least two hours or upon the request of the incident commander acting in accordance with the provisions of the National Incident Management System in effect as of December 31, 2008, the Secretary of Transportation or his or her designee(s) shall be notified of the incident as soon as possible;

(B) The Secretary of Transportation or his or her designee(s) shall respond to the notification of the incident in order to assist with the restoration of traffic flow or with the development and implementation of a traffic diversion plan;

(C) All authorized persons who respond to the scene of the emergency incident and all of their available resources will become part of the incident command system;

(D) All of those persons are to collaborate and cooperate with the incident commander and appropriate law-enforcement personnel at the emergency incident scene in order to restore traffic flow as soon as possible after the scene is deemed safe by the incident commander; and

(E) Once the incident commander has declared the emergency incident scene to be safe, the control of the traffic at the emergency incident scene will be transferred to the Department of Transportation or the appropriate law-enforcement agency;

(4) To enter the building, structure, enclosure or other property of any person or persons at any time of the day or night, without liability, while operating at such scene;

(5) To enter any building, including private dwellings, or upon any premises where an emergency exists, or where there is reasonable cause to believe an emergency exists, for the purpose of eliminating the emergency;

(6) To enter any building, including private dwellings, or premises near the scene of the emergency for the purpose of protecting the building or premises or for the purpose of eliminating the emergency which is in progress in another building or premises;

(7) To inspect for preplanning all buildings, structures or other places in their fire district, excepting, however, the interior of a private dwelling, with the consent of the owner or occupant, where any combustible materials, including waste paper, rags, shavings, waste, leather, rubber, crates, boxes, barrels, rubbish or other combustible material that is or may become dangerous as a fire menace to such building or buildings, structure or other places has been allowed to accumulate or where such chief or his or her designated representative has reason to believe that such material of a combustible nature has accumulated or is liable to be accumulated;

(8) To direct the removal, use or destruction of any fence, house, motor vehicle or other thing which may reasonably be determined to be necessary to be pulled down, destroyed or removed to prevent the further spread of the fire or hazardous condition;

(9) To request and be supplied with additional materials such as sand, treatments, chemicals, etc., and special equipment when dealing with an accident on a public highway or railroad right-of-way when it is deemed a necessity to prevent the further spread of the fire or hazardous condition, the cost of which to be borne by the owner of the instrumentality which caused the fire or hazardous condition; and

(10) To order disengagement or discouplement of any convoy, caravan or train of vehicles, craft or railway cars if deemed a necessity in the interest of safety of persons or property.

(b) As used in this article, the term "emergency" means a situation in which the fire officer in charge knows or in which a reasonable person would believe that there exists an imminent threat of serious bodily harm or death to a person or significant damage to property.

§29-3A-2. Person in command at fire scene may take and preserve certain property; restitution.

The chief of any fire department or company or any other elected or appointed fire line officer, the fire chief or any member serving in the capacity of appointed fire line officer in charge of fire fighters at the scene of any fire is authorized and empowered to take and preserve any property which indicates that the fire was intentionally set. Any person whose property is so held may petition the circuit court of the county within which the property was taken for return of the property, and the court may order restitution upon such conditions as are appropriate for the preservation of evidence, including requiring the posting of bond.

§29-3A-3. Conducting investigation to determine cause of fire.

To determine the cause of any fire, the chief of any fire department or company or other authorized fire fighter may enter the scene of such fire within a forty-eight hour period after such fire has been extinguished.

If there is evidence that a fire was of incendiary origin, the fire chief or other authorized fire fighter may control who may enter the scene of such fire by posting no trespassing signs at such scene for a period of forty-eight hours after such fire has been extinguished.

During the period that the scene of a fire is posted against trespassing, no person shall enter such scene, except that an owner, lessee or any other person having personal property at such scene may enter at any time after such scene has been declared safe by authorized fire department or company officials to recover or salvage personal property if said owner, lessee or person is accompanied by or is granted permission to enter such scene by an authorized fire department or company official.

§29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.

(a) It is unlawful, while any fire department or company or firefighter is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, for any person to:

(1) Attack any firefighter or any of his or her equipment with any deadly weapon as defined in section two, article seven, chapter sixty-one of this code; or

(2) Intentionally hinder, obstruct, oppose, or attempt to hinder, obstruct or oppose, or counsel, advise or invite others to hinder, obstruct or oppose, any fire department, fire company or firefighter.

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in the regional or county jail not more than one year or fined not more than $500, or both.

(c) Any person willfully violating any of the provisions of section one or three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500.

(d) Nothing in this article shall be construed to prevent law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of a fire.

(e) No person may willfully fail or refuse to comply with a lawful order or direction of any fire department or company or firefighter who is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not more than $100; (2) for a second offense occurring within one year of a previous conviction shall be fined not more than $200; and (3) for a third and subsequent offense shall be fined not more than $500.

§29-3B-1. Declaration of purpose.

This article is enacted to protect the health, safety and welfare of the public as well as public and private property by assuring the competence of those who perform electrical work through licensure by the state Fire Marshal of the state Fire Commission.

§29-3B-2. Necessity of license; definitions.

After the effective date of this article, no electrical work may be performed, offered, or engaged in for compensation or hire within the state of West Virginia by any person, firm, or corporation unless such person, firm, or corporation possesses a license and a certificate issued by the State Fire Marshal in accordance with this article: Provided, That any person who is assisting a journeyman or master electrician does not require a license to perform such supervised work, and a copy of the license is posted on any job in which electrical work is being performed for hire.

As used in this article:

(a) “Electrical contractor” means a person, firm, or corporation who engages in the business of electrical work and employs master electricians, journeyman electricians, or other related workers for the construction, alteration, or repair of any electrical wiring, equipment, or systems as defined in the scope of the national electric code.

(b) “Electrical work” means the installation of wires, conduits, apparatus, fixtures, other appliances, equipment, or systems for transmitting, carrying, controlling, or using electricity as defined in the scope of the national electric code.

(c) “Journeyman electrician” means a person qualified by at least one year of electrical work experience to do any work installing wires, conduits, apparatus, equipment, fixtures, and other appliances, provided that this classification is not authorized to design electrical systems.

(d) “License” means a valid and current certificate of competency issued by the state Fire Marshal.

(e) “Master electrician” means a person with at least two years of electrical work experience, including experience in all phases of electrical wiring and installation, who is competent to design electrical systems, and to instruct and supervise the electrical work of journeyman electricians, and other related workers.

(f) “Specialty electrician” means a person qualified to perform electrical work in a limited or specialized area.

§29-3B-3. Exemptions; nonapplicability of license requirements; legislative rules for limited reciprocity.

(a) This article does not apply to, and no license may be required for:

(1) A person who performs electrical work with respect to any property owned or leased by that person or that person’s immediate family;

(2) A person who performs electrical work at any manufacturing plant or other industrial establishment as an employee of the firm or corporation operating the plant or establishment;

(3) A person who performs electrical work while employed by an employer who engages in the business of selling appliances at retail, so long as such electrical work is performed incident to the installation or repair of appliances sold by the employer;

(4) A person who, while employed by a public utility or its affiliate, performs electrical work in connection with the furnishing of public utility service;

(5) Any government employee performing electrical work on government property; or

(6) Any person who performs low voltage electrical work with only low voltage wiring will not be required to have an electrician’s license other than a specialty license. For purposes of this section, low voltage electrical work is 80 volts or less, and directly related wiring. Wiring is directly related if it:

(A) Originated at the load-side terminals of a disconnecting means or junction box that has been installed, complete with line-side connections by others for the specific purpose of supply to the low voltage wiring system involved;

(B) Is permanently and legibly marked to identify the low voltage wiring system supplied; and

(C) Is not installed in a location considered hazardous under the National Electrical Code.

(b)(1) Notwithstanding any other provision of this article to the contrary, a journeyman or master electrician license may be issued for a person who is a former resident of this state, who formerly held an electrician’s license issued by this state, who has obtained an equivalent electrician license from another state, and who returns to this state as a permanent resident, without requiring the person to meet the application or examination requirements that would otherwise be imposed on the person by the requirements of this article when the issuance of the license is permitted by legislative rules promulgated pursuant to the provisions of this subsection.

(2) The State Fire Marshal shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to provide for the licensing of electricians with equivalent qualifications described in subdivision (1) of this subsection. Notwithstanding any other provision of this code to the contrary, the legislative rules described in this subsection may not be filed as emergency rules.

§29-3B-4. Licenses; classes of licenses; issuance of licenses by commissioner; qualifications required for license; nontransferability and nonassignability of licenses; expiration of license; renewal; reciprocity.

(a) The following classes of license may be issued by the State Fire Marshal: master electrician license, journeyman electrician license, and temporary electrician license. Additional classes of specialty electrician license may be issued by the State Fire Marshal.

(b) The State Fire Marshal shall issue the appropriate class of license upon a finding that the applicant possesses the qualifications for the class of license to be issued. When considering whether an applicant possess the qualifications for the class of license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on the license being sought.

(1) The State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the State Fire Marshal shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual.

(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the State Fire Marshal.

(3) An individual with a criminal record who has not previously applied for licensure may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

(c) The State Fire Marshal shall propose rules for legislative approval regarding qualifications for testing, issuance of licenses, and renewal in accordance with the provisions of §29A-3-1 et seq., of this code.

(d) To the extent that other jurisdictions provide for the licensing of electricians, the State Fire Marshal shall grant the same or equivalent classification of license without written examination upon satisfactory proof furnished to the State Fire Marshal that the qualifications of the applicant demonstrate that the person can perform work safely and competently and is in good standing with all other jurisdictions where he or she is licensed, and upon payment of the required fee.

(e) In addition to any other information required, the applicant’s social security number shall be recorded on any application for a license submitted pursuant to the provisions of this section.

§29-3B-5. Rules; applications and examinations; fees.

(a) The State Fire Marshal shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article. Rules adopted by the state Fire Marshal and presently in effect will remain in effect until and unless the state Fire Marshal adopts new rules, and the state Fire Marshal may adopt any or all of the rules presently in effect.

(b) The State Fire Marshal shall prepare and arrange for the receipt of applications from those who intend to perform electrical work in the State of West Virginia. Such application shall be sufficiently detailed to enable the state Fire Marshal to determine the presence or absence of an applicant's qualifications for a license of a particular class. The State Fire Marshal may require applicants to supply affidavits or other documents attesting to the applicant's qualifications from past employers, other electricians, engineers and others with knowledge of the applicant's qualifications. The State Fire Marshal may make such other inquiries as he or she considers necessary to determine the qualifications of the applicant. An applicant expressly consents to such inquiries by the state Fire Marshal by his or her application.

§29-3B-6. Relicensing without retesting after nonrenewal under certain circumstances.

An electrician previously licensed by the State Fire Marshal who did not renew his or her electrician’s license may renew the license without retesting within five years of the date of the last renewal: Provided, That the electrician’s license had not been revoked and that the applicant pays double the current fee.

§29-3B-7. Denial of license; suspension and revocation of license.

(a) The State Fire Marshal may deny a license to any applicant who fails to comply with the rules established by the State Fire Marshal, or who lacks the necessary qualifications; Provided, That the State Fire Marshal shall apply §29-3B-4(b) when determining if an applicant is eligible for licensure.

(b) The State Fire Marshal may upon complaint or upon his or her own inquiry and, after notice to the licensee, suspend or revoke a licensee’s license if:

(1) The license was granted upon an application or documents supporting such application which materially misstated the terms of the applicant’s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatement by an applicant;

(3) The licensee incompetently or unsafely performs electrical work; or

(4) The licensee fails to comply with any rule of the State Fire Marshal promulgated to fulfill his or her responsibilities under this article.

(c) Any person aggrieved by an order or decision of the State Fire Marshal under this article is entitled to judicial review as provided by section eighteen, article three of this chapter and by chapter twenty-nine-a of this code.

§29-3B-8. Effect of noncompliance with article; failure to obtain license.

Any person, firm, corporation, or employee thereof, or any representative, member, or officer of such firm or corporation, individually, entering upon or engaging in the business of performing any electrical work as defined in this article, without obtaining the required license or otherwise complying with this article, for the first offense shall be fined not less than $100, nor more than $500. For a second offense, the penalty and punishment is a fine of not less than $500 nor more than $1,000. For the third and each subsequent offense, the penalty and punishment is a fine of not less than $1,000 nor more than $5,000.

Each day during which such electrical work is performed without the required license or while in noncompliance with any of the provisions of this article, after official notice that such work is unlawful, is a separate offense.

Any electrical work performed by a person, firm, or corporation which is determined by the State Fire Marshal to constitute a safety or health hazard to members of the public or any electrical work of an extensive nature being performed by any person without the required license or otherwise in noncompliance with the requirements of this article or contrary to an order or rule promulgated lawfully by the State Fire Marshal, is subject to being issued a citation or a civil action in the name of the state in the circuit court of the county where such work is being performed for an injunction against such person, firm, or corporation, enjoining such work or violation. A circuit court by mandatory or prohibitory injunction may compel compliance with the provisions of this article, with the lawful orders of the State Fire Marshal and with any final decision of the State Fire Marshal or State Fire Commission. The State Fire Marshal shall be represented in all such proceedings by the Attorney General or his or her assistants.

§29-3B-9. Nonapplicability of local ordinances; exclusive license.

After the effective date of this article no municipality, local government or county may require any license or other evidence of competence as an electrician from any person, firm or corporation who or which holds a valid and current license issued pursuant to this article, as a condition precedent to permission for the performance of electrical work in such municipality, local government jurisdiction or county.

§29-3B-10. Disposition of fees, fines and other receipts.

All fees shall be paid to the state Fire Marshal. All fines shall be paid into the general revenue of the state. Such receipts shall be deposited by him in a special account with the state Treasurer for the use of the State Fire Marshal as provided in subsection(c), section twelve-b, article three of this chapter.

§29-3C-1. Purpose.

This article is intended to protect the health, safety and welfare of the public and to protect public and private property by assuring the competence of persons who perform electrical inspections of dwellings and other structures through certification by the state Fire Marshal.

§29-3C-2. Definitions.

(a) As used in this article, the terms:

(1) "Certified electrical inspector" means a person who is certified by the state Fire Marshal as qualified to perform electrical inspections. "Electrical inspector" does not include an inspector employed by the office of miners' health, safety and training pursuant to the provisions of section eleven, article one, chapter twenty-two-a of this code.

(2) "Electrical inspection" means any inspection required by this code and any inspection of a building to which electrical service is connected, wherein the inspector certifies that the electrical system in the building is in compliance with the national electrical code, state fire code and the state building code.

§29-3C-3. Certification of electrical inspectors required.

After January 1, 2003, no electrical inspections may be performed, offered or engaged in for compensation or hire within the State of West Virginia by any person who is not certified pursuant to this article: Provided, That any person who is employed by this state or any subdivision of this state and who in the normal course of his or her business conducts electrical inspections may perform electrical inspections as within the scope of his or her employment without certification pursuant to this article. Notwithstanding any other provision of this code to the contrary, for purposes of this section any electrical building code inspector shall be considered an electrical inspector.

§29-3C-4. Certification program; duties of the State Fire Marshal; rulemaking.

(a) The State Fire Marshal shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq., of this code to establish a program for the certification of electrical inspectors. Proposed rules shall provide: Standards and procedures for certification, including applications, examinations, fees, qualifications, procedures for investigating complaints, revoking or suspending certifications and for renewing licenses. The State Fire Marshal is also authorized to propose emergency rules to implement the provisions of this article: Provided, That the emergency rules specify an initial certification fee of $50.

(b) The State Fire Marshal shall certify an electrical inspector upon a finding that the applicant possesses the requisite qualifications.

(c) When considering whether an applicant possess the qualifications for certification as an electrical inspector, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on the certification being sought.

(1) The State Fire Marshal may not disqualify an applicant from initial certification because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring certification. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the State Fire Marshal shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual.

(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from certification because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial certification if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from certification, to be determined by the State Fire Marshal.

(3) An individual with a criminal record who has not previously applied for certification may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a certification. This petition shall include sufficient details about the individual’s criminal record to enable the State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

§29-3C-5. Denial of license; suspension and revocation of license.

The State Fire Marshal shall deny certification to any applicant, except those exempt under §29-3C-3 of this code, who:

(1) Fails to establish that he or she holds any other required qualifications for certification established pursuant to rules promulgated pursuant to section four of this article; or

(2) Is not a licensed journeyman or master electrician in accordance with rules promulgated pursuant to section four of this article.

§29-3C-6. Suspension or revocation of certification.

The State Fire Marshal may, upon complaint, upon a request or referral, or upon his or her own inquiry suspend or revoke the certification of any person upon a finding that:

(1) The certification was granted upon an application, or upon documents supporting the application, that materially misstated the applicant's qualifications or experience;

(2) The certified electrical inspector knowingly subscribed to or vouched for a misstatement by an applicant for certification;

(3) The certified electrical inspector incompetently performed an electrical inspection;

(4) The certified electrical inspector failed to comply with a provision of this article, or any rule promulgated pursuant to section four of this article; or

(5) The certified electrical inspector failed to comply with the reporting requirements of section eight of this article.

§29-3C-7. Prohibited acts.

A certified electrical inspector may not:

(1) Approve nor disapprove work of which he or she does not have personal knowledge;

(2) Misrepresent his or her authority or responsibility;

(3) Use his or her certification as an electrical inspector to secure special favors or treatment;

(4) Inspect any electrical installation for which he or she has performed any part of the work; or

(5) Perform an electrical inspection of any work furnished by a private contractor that employs him or her on a full-time, part-time or incidental basis: Provided, That an employee of a contractor performing electrical installation may inspect electrical work performed by other employees of the same employer, as long as the inspection is not intended to be relied on by any person other than the employer, and the electrical inspector does not certify to an electric utility or to any person that the work is in compliance with applicable building codes, electrical codes or other standards.

§29-3C-8. Required reporting of violations.

Any certified electrical inspector having knowledge of violations of this code or rules promulgated pursuant to this code by the fire marshal or the Fire Commission shall submit the information, together with available evidence, to the state Fire Marshal.

§29-3C-9. Noncompliance with article; failure to obtain certification; penalty.

(a) Any person performing electrical inspections without being certified pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $150 nor more than $500, or confined in the county or regional jail for not more than ninety days, or both; and upon conviction of a second or subsequent offense, shall be fined not less than $500 nor more than $1,000, or confined in the county or regional jail for not more than ninety days, or both.

(b) Any person who conducts an electrical inspection without the required certification is subject to being issued a citation or a civil action in the name of the state in the circuit court of the county where the inspection was or is being performed for an injunction. A circuit court by mandatory or prohibitory injunction may compel compliance with the provisions of this article, with the lawful orders of the state Fire Marshal and with any final decision of the state Fire Marshal or state Fire Commission. The State Fire Marshal shall be represented in all proceedings instituted pursuant to this subsection by the Attorney General or his or her assistants.

§29-3C-10. Disposition of fees and other receipts.

All fees or moneys received as a result of actions under this article shall be deposited in the special account created pursuant to section twelve-b, article three of this chapter. Expenditures from the fund shall be for the purposes set forth in this article and article three of this chapter.

§29-3D-1. Declaration of purpose.

The provisions of this article are intended to protect the health, safety and welfare of the public as well as public and private property by assuring the competence of those who perform fire protection work and damper work through licensure by the State Fire Marshal.

§29-3D-2. Definitions.

As used in this article and the legislative rules promulgated pursuant to this article:

“Combination fire/smoke damper” means a device that meets both fire damper and smoke damper requirements.

“Damper” means a fire damper, smoke damper, or combination fire/smoke damper.

“Damper work” means to install, test, maintain, or repair a damper.

“Engineered suppression systems installer” means a person certified by a manufacturer to install, alter, extend, maintain, lay out, or repair an agent suppression system.

“Engineered Suppression Systems Technician” means a person certified by a manufacturer to maintain or repair an agent suppression system.

“Fire damper” means a device installed in an air distribution system, designed to close automatically upon detection of heat, to interrupt migratory airflow, and to restrict the passage of flame. Fire dampers are classified for use in either static systems or for dynamic systems, where the dampers are rated for closure under airflow.

“Fire protection layout technician” is an individual who has achieved National Institute for Certification in Engineering Technologies (NICET) Level III, or has achieved from the National Fire Protection Association a certification in Certified Water Based Systems Professional (CWBSP), or has passed an exam approved by the state Fire Marshal from the National Inspection Testing Certification (NITC) organization, or higher certification as recognized by the state Fire Marshal, and who has the knowledge, experience, and skills necessary to lay out fire protection systems based on engineering design documents.

“Fire protection system” means any fire protection suppression device or system designed, installed, and maintained in accordance with the applicable National Fire Protection Association (NFPA) codes and standards, but does not include public or private mobile fire vehicles.

“Fire protection work” means the installation, alteration, extension, maintenance, or testing of all piping, materials, and equipment inside a building, including the use of shop drawings prepared by a fire protection layout technician, in connection with the discharge of water, other special fluids, chemicals, or gases, and backflow preventers for fire protection for the express purpose of extinguishing or controlling fire.

“Journeyman sprinkler fitter” means a person qualified by at least 2,000 hours of work experience installing, adjusting, repairing, and dismantling fire protection systems and who is competent to instruct and supervise fire protection work: Provided, That current license renewal exemptions to examinations apply.

“License” means a valid and current license issued by the State Fire Marshal in accordance with the provisions of this article.

“Portable fire extinguisher technician” means a person certified in accordance with NFPA 10 to install, maintain, repair, and certify portable fire extinguishers as defined by NFPA 10.

“Preengineered suppression systems installer” means a person certified by a manufacturer to install, alter, extend, maintain, lay out, or repair an agent suppression system.

“Preengineered suppression systems technician” means a person certified to maintain or repair an agent suppression system.

“Single family dwelling” means a building which is occupied as, or designed or intended for occupancy as, a single residence for one or more persons.

“Smoke damper” means a device within an operating (dynamic) air distribution system to control the movement of smoke.

§29-3D-3. License required; exemptions.

(a) On and after January 1, 2009, a person performing or offering to perform fire protection work in this state shall have a license issued by the State Fire Marshal, in accordance with the provisions of this article.

(b) A person licensed under this article must carry a copy of the license on any job in which fire protection work is being performed.

(c) This article does not apply to:

(1) A person who personally performs fire protection work or damper work on a single family dwelling owned or leased by that person or that person’s immediate family;

(2) A person who performs fire protection work or damper work at any manufacturing plant or other industrial establishment as an employee of the person, firm, or corporation operating the plant or establishment;

(3) A person who, while employed by a public utility or its affiliate, performs fire protection work in connection with the furnishing of public utility service.

(4) A person who performs fire protection work while engaging in the business of installing, altering, or repairing water distribution or drainage lines outside the foundation walls of a building, public or private sewage treatment or water treatment systems, including all associated structures or buildings, sewers, or underground utility services;

(5) A person who performs fire protection work while engaged in the installation, extension, dismantling, adjustment, repair, or alteration of a heating ventilation and air conditioning (HVAC) system, air-veyor system, air exhaust system, or air handling system; or

(6) A person who performs fire protection work at a coal mine that is being actively mined or where coal is being processed.

§29-3D-4. Rule-making authority.

The State Fire Marshal shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, for the implementation and enforcement of the provisions of this article, which shall provide:

(1) Standards and procedures for issuing and renewing licenses, including classifications of licenses as defined in this article, applications, examinations, and qualifications: Provided, That the rules shall require a person to be licensed as a HVAC technician pursuant to §21-16-1 et seq. of this code and the rules promulgated pursuant thereto, before performing damper work pursuant to this article;

(2) Provisions for the granting of licenses without examination, to applicants who present satisfactory evidence of having the expertise required to perform fire protection work at the level of the classifications defined in this article and who apply for licensure on or before July 1, 2009: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(3) Provisions for the granting of licenses without examination, to applicants who present satisfactory evidence of having the expertise required to perform damper work at the level of the classifications defined in this article and who apply for licensure on or before July 1, 2016: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(4) Reciprocity provisions;

(5) Procedures for investigating complaints and revoking or suspending licenses, including appeal procedures;

(6) Fees for testing, issuance and renewal of licenses, and other costs necessary to administer the provisions of this article;

(7) Enforcement procedures; and

(8) Any other rules necessary to effectuate the purposes of this article.

§29-3D-5. Enforcement.

(a) The State Fire Marshal and his or her deputy fire marshal, assistant fire marshal or assistant fire marshal-in-training, is authorized to enforce the provisions of this article, and may, at reasonable hours, enter any building or premises where fire protection work or damper work is performed and issue citations for noncompliance.

(b) The State Fire Marshal may enter into an interagency agreement with the Commissioner of Labor for the mutual purpose of enforcing this article and article sixteen, chapter twenty-one of this code.

§29-3D-6. Denial, suspension and revocation of license.

(a) The State Fire Marshal may deny a license to any applicant who fails to comply with the rules established by the State Fire Marshal, or who lacks the necessary qualifications. When considering whether an applicant possesses the qualifications for a license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on the license being sought.

(1) The State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the State Fire Marshal shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual.

(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the State Fire Marshal.

(3) An individual with a criminal record who has not previously applied for licensure may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

(b) The State Fire Marshal may, upon complaint or upon his or her own inquiry, and after notice to the licensee, suspend or revoke a licensee’s license if:

(1) The license was granted upon an application or documents supporting the application which materially misstated the terms of the applicant’s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatement in his or her application for licensure; or

(3) The licensee incompetently or unsafely performs fire protection work or damper work.

§29-3D-7. Penalties.

(a) On and after January 1, 2009, a person performing or offering to perform fire protection work without a license issued by the State Fire Marshal, is subject to a citation.

(b) Any person continuing to engage in fire protection work after the issuance of a citation is subject to the following penalties:

(1) For the first offense, a fine of not less than $200 nor more than $1,000;

(2) For the second offense, a fine of not less than $500 nor more than $2,000; and

(3) For the third and subsequent offenses, a fine of not less than $1,000 nor more than $5,000.

(c) Each day after a citation is given that a person continues to perform, or an employer continues to authorize a person to perform, fire protection work, which is not exempt by the provisions of §29-3D-3 of this code, is a separate offense and punishable accordingly.

(d)(1) The State Fire Marshal may institute proceedings in the circuit court of Kanawha County or the county where the alleged violation of the provisions of this article occurred or are now occurring to enjoin any violation of any provision of this article.

(2) A circuit court by injunction may compel compliance with the provisions of this article, with the lawful orders of the State Fire Marshal and with any final decision of the State Fire Marshal.

(3) The State Fire Marshal shall be represented in all such proceedings by the Attorney General or his or her assistants.

(e) Any person adversely affected by an action of the State Fire Marshal may appeal the action pursuant to the provisions of chapter 29A of this code.

§29-3D-8. Inapplicability of local ordinances.

(a) On and after January 1, 2009, a political subdivision of this state may not require, as a condition precedent to the performance of fire protection work in the political subdivision, a person who holds a valid and current license to perform fire protection work issued under the provisions of this article, to have any other license or other evidence of competence as a fire protection worker.

(b) On and after January 1, 2016, a political subdivision of this state may not require, as a condition precedent to the performance of damper work in the political subdivision, a person who holds a valid and current license to perform damper work issued under this article to have any other license or other evidence of competence beyond those required by the State Fire Marshal and the Commissioner of Labor to perform damper work.

§29-3D-9. Disposition of fees.

All fees paid pursuant to the provisions of this article, shall be paid to the state Fire Marshal and deposited in a special revenue account with the state Treasurer for the use of the state Fire Marshal as provided in subsection (c), section twelve-b, article three of this chapter.

§29-3E-1. Unlawful acts.

It is unlawful for a person to manufacture, wholesale, distribute, import, sell or store for the purpose of resale, consumer fireworks, sparkling devices, novelties or toy caps without a license, registration, certificate or permit from the State Fire Marshal.

§29-3E-2. Definitions.

As used in this article:

(1) "Agricultural and wildlife fireworks" means fireworks devices distributed to farmers, ranchers and growers through a wildlife management program administered by the United States Department of the Interior or the Division of Natural Resources of this state;

(2) “Amusement park” means any person or organization which holds a permit for the operation of an amusement ride or amusement attraction under article ten, chapter twenty-one of this code;

(3) "APA Standard 87-1" means the APA Standard 87-1 published by the American Pyrotechnics Association, as amended, and incorporated by reference into Title 49 of the Code of Federal Regulations;

(4) "Articles pyrotechnic" means pyrotechnic devices for professional use that are similar to consumer fireworks in chemical composition and construction but not intended for consumer use, that meet the weight limits for consumer fireworks but are not labeled as such, and that are classified as UN0431 or UN0432 under 49 C.F.R. §172.101 (2014);

(5) "Consumer fireworks" means small fireworks devices that are designed to produce visible effects by combustion that are required to comply with the construction, chemical composition and labeling regulations promulgated by the United States Consumer Product Safety Commission under 16 C.F.R. Parts 1500 and 1507 (2014), and that are listed in APA Standard 87-1. Consumer fireworks do not include sparkling devices, novelties, toy caps or model rockets;

(6) "Consumer fireworks certificate" means a certificate issued under section five of this article;

(7) "Display fireworks" means large fireworks to be used solely by professional pyro-technicians licensed by the State Fire Marshal and designed primarily to produce visible or audible effects by combustion, deflagration or detonation and includes, but is not limited to, salutes containing more than two grains (one hundred thirty milligrams) of explosive materials, aerial shells containing more than forty grams of pyrotechnic compositions and other display pieces that exceed the limits of explosive materials for classification as consumer fireworks and are classified as fireworks UN0333, UN0334, or UN0335 under 49 C.F.R. §172.101 (2014);

(8) "Distributor" means a person who sells fireworks to wholesalers and retailers for resale;

(9) "Division 1.3 explosive" means that term as defined in 49 C.F.R. §173.50 (2014);

(10) "Division 1.4 explosive" means that term as defined in 49 C.F.R. §173.50 (2014);

(11) "Explosive composition" means a chemical or mixture of chemicals that produces an audible effect by deflagration or detonation when ignited;

(12) "Fire Marshal" means the State Fire Marshal;

(13) "Firework" or "fireworks" means any composition or device designed for the purpose of producing a visible or audible effect by combustion, deflagration or detonation. Fireworks include consumer fireworks, display fireworks and special effects. Fireworks does not include sparkling devices, novelties, toy caps or model rockets;

(14) "Interstate wholesaler" means a person who is engaged in interstate commerce selling fireworks;

(15) “Model rocket” means that term as defined in National Fire Protection Association Standard 1122, “Code for Model Rocketry”;

(16) "New explosive" means that term as defined in 49 C.F.R. §173.56 (2014);

(17) "NFPA 1123" means National Fire Protection Association Standard 1123, "Code for Fireworks Display;"

(18) "NFPA 1124" means National Fire Protection Association Standard 1124, "Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles,” 2006 Edition;

(19) "NFPA 1126" means National Fire Protection Association Standard 1126, "Standard for the Use of Pyrotechnics Before a Proximate Audience;"

(20) "Novelties" means that term as defined under APA standard 87-1, section 3.2; but shall not include toy pistols, toy caps, toy canes, toy guns or other similar devices;

(21) “Permanent” means that term as defined in NFPA 1124;

(22) "Person" means an individual or the responsible person for an association, an organization, a partnership, a limited partnership, a limited liability company, a corporation or any other group or combination acting as a unit;

(23) “Public display of fireworks” means a public entertainment feature that is advertised to the general public or is on public property that includes the display or discharge of fireworks;

(24) "Pyrotechnic composition" means a mixture of chemicals that produces a visible or audible effect by combustion rather than deflagration or detonation. A pyrotechnic composition will not explode upon ignition unless severely confined;

(25) "Retailer" means a person who purchases consumer fireworks for resale to consumers;

(26) "Sparkling devices" means "ground or handheld sparkling devices" as that phrase is defined under APA 87-1, sections 3.1.1 and 3.5;

(27) "Special effects" means a combination of chemical elements or chemical compounds capable of burning independently of the oxygen of the atmosphere and designed and intended to produce an audible, visual, mechanical or thermal effect as an integral part of a motion picture, radio, television, theatrical or opera production or live entertainment;

(28) “Temporary” means that term as defined in NFPA 1124;

(29) "Toy caps" means that term as defined under APA 87-1, section 3.3; and

(30) "Wholesaler" means any person who sells consumer fireworks to a retailer or any other person for resale and any person who sells articles of pyrotechnics, display fireworks, and special effects to a person licensed to possess and use those devices.

§29-3E-3. Production or transportation of fireworks.

A person may produce or transport a firework that is a new explosive and that is either a division 1.3 explosive or division 1.4 explosive if the person first meets the requirements of 49 C.F.R. §173.56(2)(j) (2014).

§29-3E-4. Sparkling devices and novelties registration required.

(a) A person may not sell sparkling devices or novelties without being registered with the State Fire Marshal.

(b) To be registered with the State Fire Marshal, the person shall:

(1) Submit an application to the State Fire Marshal;

(2) Provide a copy of his or her current business registration certificate or his or her certificate to sell sparklers and novelties issued by the State Tax Commissioner;

(3) Pay the required fee; and

(4) Provide other information as the State Fire Marshal may require by legislative rule.

(c) A registration is valid for the calendar year or any fraction thereof and expires on December 31 of each year.

(d) A registration is not transferable.

(e) A person shall post the registration in a conspicuous place at the location of the business.

(f) A separate registration is required for each location.

(g) The fee required in subdivision (3), subsection (b) of this section shall be $15.00 per retail location.

(h) The fee assessed by this section shall be retained by the State Fire Marshal and expended to offset costs incurred in performing the duties imposed by the provisions of this code.

§29-3E-5. Consumer fireworks certificate required.

(a) A retailer may not sell consumer fireworks unless the retailer is certified under this article.

(b) To be certified to sell consumer fireworks a retailer shall:

(1) Submit an application to the State Fire Marshal;

(2) Submit with the application a copy of his or her current business registration certificate;

(3) Pay a fee of $500 for each temporary retail sales location and $1000 for each permanent retail sales location to the State Fire Marshal;

(4) Provide the State Fire Marshal proof that the retailer maintains at all times public liability and product liability insurance with minimum coverage limits of $1 million to cover losses, damages or injuries that might result from selling consumer fireworks; and

(5) Provide other information as the State Fire Marshal may require by legislative rule.

(c) A consumer fireworks certificate is valid from April 1 through March 31 of the next calendar year.

(d) A consumer fireworks certificate is not transferable.

(e) A retailer shall post the certificate in a conspicuous place at the location of the business.

(f) A separate certificate is required for each location of the business.

(g) A certificate holder may also sell sparkling devices and novelties at the same location without additionally obtaining a sparkling devices and novelties registration.

(h) A retailer who sells consumer fireworks shall comply with the regulations provided in NFPA 1124.

(i) A retailer who sells consumer fireworks shall comply with all regulations provided in NFPA 1124. The State Fire Marshal may by legislative rule, promulgate rules to supplement those rules established in NFPA 1124.

(j) A retailer shall sell the consumer fireworks only from a permanent building or structure that meets the specifications in NFPA 1124 or a temporary facility or structure that meets the specifications of NFPA 1124.7.3.5.

(k) Any fees collected pursuant to this section shall be deposited in the State Fire Marshal Fees Fund established by the provisions of §29-3-12b of this code.

(l) Notwithstanding any provision of this article to the contrary, no retailer may offer consumer fireworks for sale before June 1, 2016.

§29-3E-6. Required permit for public fireworks display.

(a) Any municipality, county, fair association, amusement park or other organization shall have a permit to present a public display of fireworks from the State Fire Marshal.

(b) To receive a permit, a municipality, fair association, amusement park, or other organization shall:

(1) Submit an application to the State Fire Marshal;

(2) Pay the required fee not to exceed $50.00;

(3) Furnish proof of financial responsibility to satisfy claims for damages to property or personal injuries arising out of any act or omission on the part of the person or an employee thereof, in the amount, character and form as the State Fire Marshal determines to be necessary for the protection of the public; and

(4) Provide any other information as the State Fire Marshal may require by legislative rule.

(c) The State Fire Marshal shall require the municipality, county, fair association, amusement park and other organizations to give written notice to the local police and fire authorities at least five days prior to the display for which the permit is sought.

(d) A permit is not transferable.

(e) The display shall be operated by a competent operator licensed or certified as to competency by the State Fire Marshal and shall be of such composition, character, and so located, discharged or fired so as to be safe in the opinion of the chief of the fire department serving the community or area where such display is being held.

(f) The permittee shall require a bond from the licensee in a sum not less than $1,000 conditioned on compliance with the provisions of this article and the rules of the State Fire Marshal except where the licensee is an insured government entity.

(g) Any fees collected pursuant to this section shall be deposited in the State Fire Marshal Fees Fund established by the provisions of section twelve-b, article three, chapter twenty-nine of this code.

§29-3E-7. Fireworks safety fee; administration; tax crimes; collections; remittances; deposits; distributions; rules.

(a) In addition to the sales tax, a fireworks safety fee of twelve percent of all sales is levied on retail sales of consumer fireworks in this state. The fee shall be distributed pursuant to the provisions of this subsection. The fee computation under this subsection shall be carried to the third decimal place, and the fee rounded up to the next whole cent whenever the third decimal place is greater than four, and rounded down to the lower whole cent whenever the third decimal place is four or less.

The State Tax Commissioner shall disburse all proceeds of the fireworks safety fee into the state treasury each month in the following manner:

(1) Seventy-five percent shall be deposited into a special account in the State Treasury, designated the Veterans’ Facility Support Fund established by the provisions of section eleven, article one, chapter nine-a for expenditure on veterans’ programs.

(2) Twenty-five percent shall be deposited into a special account in the State Treasury, designated the Fire Protection Fund established in section thirty-three, article three, chapter thirty-three of this code and distributed in accordance with that section to each volunteer fire company or department on an equal share basis by the State Treasurer.

(b) A person who purchases consumer fireworks in a retail transaction shall pay to the retailer the amount of the fee levied by this section, which fee is added to and constitutes a part of the sale price, and is collectible by the retailer who shall account to the state for all fees paid by a purchaser. If the retailer fails to collect the fee, or fails to account to the state for the fees paid by a purchaser, then the retailer is liable for the payment of the fee to the state.

(c) A retailer shall remit to the State Tax Commissioner no later than thirty days after the end of each preceding month all moneys collected for such preceding month, pursuant to the requirements of this section, and shall report such collections on forms and in the manner prescribed by the State Tax Commissioner.

(d) All moneys so remitted, net of refunds and adjustments, shall be paid by the State Tax Commissioner into the funds specified in this section.

(e) Each and every provision of the West Virginia Tax Crimes and Penalties Act set forth in article nine, chapter eleven of this code applies to the fees imposed pursuant to this article, with like effect as if that act were applicable only to the fees imposed by this article and were set forth in extenso in this article.

(f) The State Tax Commissioner shall propose legislative rules and may promulgate such emergency rules as are necessary to implement the provisions of this article.

§29-3E-8. State Fire Marshal’s Rule-making Authority.

The State Fire Marshal may promulgate emergency rules and shall propose legislative rules for promulgation, in accordance with §29A-3-1 et seq. of this code, to implement this article, including:

(1) Adopting by reference the most recent edition of APA Standard 87-1;

(2) Adopting by reference the most recent edition of NFPA 1123, Code for Fireworks Display;

(3) Adopting by reference NFPA 1124, code for the manufacture, transportation, storage and retail sales of fireworks and pyrotechnic articles;

(4) Adopting by reference the most recent edition of NFPA 1126, standard for the use of pyrotechnics before a proximate audience;

(5) Procedures for the issuance and renewal of a registration, certificate and permit;

(6) A fee schedule;

(7) Establishing insurance or bond requirements;

(8) Establishing additional criteria for the granting of a registration, certificate, or permit under this article;

(9) Registration of manufacturers, wholesalers and distributors; and

(10) Establishing a procedure that allows a retailer to combine and pay all applicable fees in a single payment.

§29-3E-9. Exemptions.

This article does not prohibit any of the following:

(1) The use of fireworks by railroads or other transportation agencies for signaling purposes or illumination;

(2) The use of agricultural and wildlife fireworks;

(3) The sale or use of blank cartridges for a theatrical performance, use by military organizations or signal or ceremonial purposes in athletics or sports; or

(4) The possession, sale or disposal of fireworks incidental to the public display of fireworks by wholesalers or other persons who have a permit to possess, store and sell explosives from the Bureau of Alcohol, Tobacco, Firearms, and Explosives of the United States Department of Justice and the State Fire Marshal.

§29-3E-10. Local municipalities’ regulation of consumer fireworks.

This article does not affect the authority of the governing body of a municipality to prohibit or regulate the use of consumer fireworks within its boundaries.

§29-3E-11. Violations of this article; penalties.

(a) A person may not intentionally ignite, discharge or use consumer fireworks on public or private property without the express permission of the owner to do so.

(b) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices within or throw the same from a motor vehicle or building.

(c) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices into or at a motor vehicle or building, or at any person or group of people.

(d) A person may not intentionally ignite or discharge any consumer fireworks or sparkling device while the person:

(1) Is under the influence of alcohol;

(2) Is under the influence of any controlled substance;

(3) Is under the influence of any other drug; or

(4) Is under the combined influence of alcohol and any controlled substance or any other drug.

(e) A person who is less than eighteen years of age may not purchase, nor offer for sale, consumer fireworks.

(f) The provisions of this section shall be effective June 1, 2016.

§29-3E-12. Miscellaneous offenses; penalties.

Any person who violates a provision of this article for which a penalty is not expressly set forth is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100.00 nor more than $500.00. The provisions of this section shall be effective June 1, 2016.

§29-3E-13. Seizures by the State Fire Marshal; enforcement of law.

(a) The State Fire Marshal shall seize, take, remove and dispose of at public auction or destroy, or cause to be seized, taken or removed and disposed of at public auction, or destroyed at the expense of the owner, all stocks of fireworks or combustibles offered for sale, stored or held in violation of this article or an emergency or legislative rule promulgated hereunder.

(b) The West Virginia State Police, deputy sheriffs, municipal police officers and other law-enforcement officers shall assist in the enforcement of this article.

§29-3E-14. Reporting requirements; duration of reporting requirements.

Annually, on or before January 15, 2017, 2018 and 2019:

(1) The State Treasurer shall submit to the President of the Senate and the Speaker of the House of Delegates a report detailing the amount of revenue received and deposited from the Fireworks Safety Fee into the Fire Safety Fund authorized by section seven of this article and the distribution of said funds;

(2) The Secretary of Veterans’ Assistance shall supply the President of the Senate and Speaker of the House of Delegates with a report detailing the revenue received from the Fireworks Safety Fee and deposited in the Veterans’ Facility Support Fund and the purposes for which the money was expended;

(3) The State Tax Commissioner shall provide to the President of the Senate and Speaker of the House of Delegates a report detailing the revenue received from the sales tax received from the sale of fireworks authorized by the provisions of the article and revenue received from the Fireworks Safety Fee authorized by section seven of this article; and

(4) The State Fire Marshal shall submit to the President of the Senate and Speaker of the House of Delegates a report detailing the amounts of revenue received from the registration fees imposed pursuant to the provisions of section five of this article, the purposes for which the fees were expended and the adequacy of the fees received in relation to the duties required of the office.

§29-4-1.

Repealed.

Acts, 1996 Reg. Sess., Ch. 89.

§29-4-2.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.

§29-4-2a.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.

§29-4-2b.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.

§29-4-3.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-4.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-5.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-6.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-7.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-8.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-9.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.

§29-4-10.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.

§29-4-11.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.

§29-4-12.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-13.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-14.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-15.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4-16.

Repealed.

Acts, 2014 Reg. Sess., Ch. 133.

§29-4A-1.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-5-1.

Repealed.

Acts, 1981 Reg. Sess., Ch. 173.

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

(a) The State Boxing Commission, heretofore created, is hereby continued and renamed the State Athletic Commission. The commission shall consist of five persons appointed by the Governor, by and with the consent of the Senate, no more than three of whom shall belong to the same political party and no two of whom shall be residents of the same county at the same time. One member shall have at least three years of experience in the sport of boxing. One member shall have at least three years of experience in the sport of mixed martial arts. One member shall have at least three years of experience in the health care industry as a licensed physician, registered nurse, nurse practitioner, or physicians’ assistant. Two members shall be citizen members who are not licensed under the provisions of this article and who do not perform any services related to the persons regulated under this article. The members shall serve without pay except that each member shall receive $100 for each day that he or she attends and participates in a public meeting in which the commission makes or deliberates towards an official act: Provided, That the compensation a member may receive pursuant to this subsection during each fiscal year may not exceed $2,000.

(b) At the expiration of the term of each member, his or her successor shall be appointed by the Governor for a term of four years. If there is a vacancy in the board, the vacancy shall likewise be filled by appointment by the Governor and the Governor shall likewise have the power to remove any commissioner at his or her pleasure.

(c) Any three members of the commission shall constitute a quorum for the exercise of the power or authority conferred upon it. The members of the commission shall, at the first meeting after their appointment, elect one of their number chairman of the commission and another of their number secretary of the commission, shall adopt a seal for the commission, and shall make such rules for the administration of their office, not inconsistent herewith, as they may consider expedient; and they may hereafter amend or abrogate such rules.

(d) The concurrence of at least three commissioners is necessary to render a choice or decision of the commission except that, notwithstanding the requirements of the Open Governmental Proceedings Act, §6-9a-1 et seq. of this code, a quorum of the commission may vote in writing to approve changes to the roster of participants or the roster of officials if the need for the substitution(s) is made known to the commission within 48 hours of an event that the commission previously approved: Provided, That the substitution(s) is necessary to effectuate the match: Provided, however, That the written decision of the commission is presented at the next scheduled meeting of the commission and recorded in its minutes.

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

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

(1) Administrative recordkeeping;

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

(3) Management of finances and budgetary oversight.

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

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

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

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

(b) In exercising its jurisdiction over professional and semiprofessional boxing, sparring matches, and exhibitions, the commission shall follow the current unified rules of boxing adopted by the Association of Boxing Commissions and requirements to enable the proper sanctioning of all participants, referees, judges, and matches or exhibitions and shall cooperate fully with the Association of Boxing Commissions in order that the sanctioning be extended to state boxers. The commission shall supervise all amateur boxing conducted in this state and any such contest shall follow the amateur rules for boxing as recommended and adopted by the Association of Boxing Commissions, U.S.A. Boxing, the International Boxing Association, or any other appropriate governing or sanctioning body recognized and accepted by the commission. For full contact boxing events and other boxing events that follow nontraditional rules, the commission may impose any limitations or restrictions reasonably necessary to guarantee the safety of the participants and the fair and honest conducting of the matches or exhibitions and may refuse to license any event that poses an unreasonable degree of risk to the participants.

(c) In exercising jurisdiction over professional, semiprofessional, and amateur boxing as well as any other boxing event over which the commission has jurisdiction under §29-5A-3(b) of this code, the commission may propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provision of this section including:

(1) Procedures and requirements for the issuance and renewal of licenses;

(2) Exemptions from licensure;

(3) Procedures for fining, suspending, or revoking the license of any holder of a license issued under this article;

(4) A schedule of licensing fees;

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

(6) Requirements for fair and honest conducting of contests, matches, or exhibitions; and

(7) Any other rules necessary to effectuate the provisions of this article.

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

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

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

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

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

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

(f) The commission shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this section, including:

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

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

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

(2) Exemptions from licensure;

(3) Procedures for fining, suspending, or revoking the license of any holder of a license issued under this article;

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

(5) A schedule of licensing fees;

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

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

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

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

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

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

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

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

§29-5A-4. Licenses to be in lieu of all other licenses.

The licenses herein imposed shall be in lieu of all other licenses or license taxes of the State of West Virginia, and no county, city, town or other municipality or other political subdivision of the State of West Virginia shall be empowered to levy or impose any license or license tax on any such person engaged in the business of conducting boxing or sparring matches and exhibitions under the jurisdiction of and being licensed by the commission.

§29-5A-5. Expense of commission.

On or before December 31 of each year, the secretary of the commission shall present to the Governor projected expenses for the following year. Such projections shall include all expenses and revenues of the commission and its official headquarters. Necessary expenses incurred by the commission shall be submitted on a standard expense form to the Treasurer of the state of West Virginia to be paid from the State Athletic Commission Fund except in such circumstances referred to in subsection (b), section three-b of this article designating such expenses be paid from the General Fund.

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

The deputy, inspector or other officials designated by the commission to be in charge of a boxing or mixed martial arts event shall be paid by the promoter at a minimum rate of $75 per day for services performed prior to any event at a weigh-in and each day of an event: Provided, That not more than one official designated by the commission to be in charge of a boxing or mixed martial arts event may receive compensation for services performed. If a weigh-in occurs within three hours before the boxing bouts are scheduled to begin, the deputy, inspector or other officials will be paid only one rate at a minimum of $75 for that particular night or day’s events. Judges, timekeepers, scorekeepers and inspectors shall be paid by the promoter at a minimum rate of $50 per day for services performed prior to any event and each day of an event. Referees shall be paid by the promoter at a minimum rate of $75 per day of bouts. Payments to the officials in charge, judges, timekeepers, scorekeepers, inspectors or referees exceeding the amounts under this section are prohibited without prior written consent of the promoter: Provided, however, That the commission may revise any fees paid to officials through legislative rule-making process beginning June 30, 2018, and every three years thereafter. The commission may not revoke an event permit or license for refusal to pay a fee greater than the fees in this section: Provided further, That approved officials are available, willing and able to work the event for the proscribed fees. Deputies, inspectors, judges, referees, timekeepers, scorekeepers or any other officials designated by the commission to be in charge of an event shall not accept, other than the fees proscribed herein, any gift, pass or other thing of value in connection with any event.

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

No person or persons, club, organization or corporation shall, except in accordance with law, interfere with or restrain, or attempt to interfere with or restrain, by any act, threat or otherwise, either within or without this state, the putting on or the conducting of any professional boxing match or exhibition of this state.

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

(a) The commission may issue a license to promote, conduct, or hold professional, semiprofessional or amateur boxing, or professional or amateur mixed martial arts sparring matches and exhibitions to any person, corporation, association, club, or organization eligible for a license under this article. In the case of a corporate applicant, the requirements for licensure shall pertain to its officers, directors, principal stockholders, and employees.

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

(A) Possesses the requisite skill, knowledge, and ability to promote, hold, and conduct a boxing or mixed martial arts contest, exhibition, or match;

(B) Is of good moral character;

(C) Has executed and filed a surety bond with the commission as required in §29-5A-15 of this code;

(D) Will conduct his or her business in a manner that furthers the public welfare, preserves the safety and health of participants, and advances the reputation and interests of the sports of boxing and mixed martial arts;

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

(b) The commission may issue a license to engage as a combatant in a boxing or mixed martial arts contest, exhibition, or match to any person eligible for a license under this article.

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

(A) Possesses the requisite fitness, skill, knowledge, and ability to compete as a professional, semiprofessional or amateur boxer, or a professional or amateur mixed martial artist;

(B) Is of good moral character;

(C) Will act in a manner that furthers the public welfare and advances the reputation and interests of the sports of boxing and mixed martial arts;

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

(c)(1) The commission may issue any other license required under this article including any license of a referee, judge, other official, manager, matchmaker, or trainer. In the case of a corporate applicant, the requirements for licensure shall pertain to its officers, directors, principal stockholders, and employees.

(2) Before being granted a license or the renewal of a license under this subsection, the applicant shall establish to the satisfaction of the commission that he or she:

(A) Possesses the requisite skill, knowledge, and ability in boxing and mixed martial arts;

(B) Is of good moral character;

(C) Will adhere to and comply with all the rules and regulations of the commission pertaining to the license;

(D) Will act in a manner that furthers the public welfare, preserves the safety and health of participants, and advances the reputation and interests of the sports of boxing and mixed martial arts.

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

§29-5A-9. Sanction or permit from commission.

No boxing, sparring matches or exhibitions shall be conducted by any individual, club, organization or corporation having a license to conduct any such exhibitions in this state except by a sanction or permit from the commission.

§29-5A-10.

Repealed.

Acts, 2015 Reg. Sess., Ch. 56.

§29-5A-11.

Repealed.

Acts, 2004 Reg. Sess., Ch. 58.

§29-5A-12.

Repealed.

Acts, 2015 Reg. Sess., Ch. 221.

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

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

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

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

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

(b) Is guilty of gross immorality;

(c) Lacks the requisite fitness, skill, knowledge, or ability to safely, properly, and competently promote, hold, conduct, engage, act, manage, contend in, judge, referee, officiate, or otherwise participate in a boxing or mixed martial arts contest;

(d) Violates any provision of this article or the rules of the commission;

(e) Secures any benefit, payment, reimbursement, agreement, contract, license, or title for himself, herself, or another related to a boxing or mixed martial arts contest, exhibition, or match through fraud, deceit, or material misrepresentation;

(f) Has a direct or indirect financial interest in the outcome or result of any boxing or mixed martial arts contest, exhibition, or event that he or she promotes, holds, or conducts;  

(g) Has a direct or indirect financial interest in the outcome or result of any boxing or mixed martial arts contest, exhibition, or event in which he or she acts as a judge, referee, deputy, inspector, timekeeper, scorekeeper, or other official;

(h) Contracts, agrees, acts, engages, or attempts to promote, manage, train, or match any boxer or mixed martial artist without disclosing, through a written instrument, any direct or indirect financial interest in conflict with the boxer’s or mixed martial artist’s health, safety, competitive, or financial interests;

(i) Is licensed as a promoter and has a direct or indirect financial interest in the management of any boxer or mixed martial artist licensed by the commission;

(j) Is licensed as a manager and has a direct or indirect financial interest in the promotion of any boxing or mixed martial arts contest, exhibition, or match sanctioned by the commission: Provided, That a manager may receive any compensation expressly agreed to and disclosed in a written contract between the boxer and manager: Provided, however, That nothing in this section shall prohibit a boxer or mixed martial artist from acting as his own promoter or manager;

(k) Violates any provision of the Muhammad Ali Boxing Reform Act of 2000, 15 U.S.C. §6301 et seq.;

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

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

(n) Is or has become mentally incompetent;

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Subject to available funds, the commission may pay a member of the commission $150 for each day that he or she performs the work of the commission at a sanctioned exhibition or match. But the commission may pay no more than two members of the commission for each day of an exhibition or match. The commission may pay no more than $3,000, collectively, to the members of the commission pursuant to this subsection during any fiscal year.

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

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

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

§29-5A-18. Examination of contestants by physician; presence at contest; report to commission.

In any boxing or exhibition match, each contestant must be examined by a qualified physician prior to entering the ring. The physician shall certify in writing over his signature, as to contestant's physical condition to engage in such contest. Qualified technicians may assist the physician in the examinations, and a physician shall be in attendance during any boxing bouts prepared to deal with any emergency which may arise. But in the event that said physician is convinced of the unfitness of either of the contestants to enter the contest, he shall at once certify such opinion to the club, corporation, association or individual under whose management the contest is conducted, and it shall thereupon be unlawful for said club, corporation, association or individual to proceed with such. Whenever a participant, in the opinion of the physician, is unable to continue in a boxing match, the physician may stop the bout.

§29-5A-19. Weight of contestants.

No boxer shall be permitted to contest against an opponent ten pounds heavier than himself or herself when the weight of either contestant is less than one hundred fifty pounds. Weight classes as adopted by the Association of Boxing Commissions shall be utilized for all boxing and mixed martial arts contests conducted in this state.

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

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

§29-5A-21. Penalty for engaging in unlawful contest.

Any person who shall engage in a boxing contest with another person for money or other such things of value, or for any championship, when an admission fee is charged, either directly or indirectly in this state, except when such contest is held in compliance with this article, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50, and not more than $500.

§29-5A-22. Penalty for violation not expressly provided for.

If any person shall violate any provision of this article, for which violation a penalty is not here expressly provided, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50, nor more than $500.

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

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

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

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

(b) The commission shall propose such rules to regulate professional and semiprofessional boxers, professional or amateur mixed martial artists, professional and semiprofessional boxing matches and exhibitions and professional or amateur mixed martial arts matches and exhibitions: Provided, That for professional boxers and boxing matches and exhibitions, the commission rules shall comply with the current unified rules of boxing as adopted by the Association of Boxing Commissions; for professional mixed martial artists and mixed martial arts matches and exhibitions, the commission rules shall comply with the current unified rules of mixed martial arts as adopted by the Association of Boxing Commissions; for amateur boxers and boxing matches or exhibitions, the commission rules shall comply with the amateur rules for boxing as adopted by the Association of Boxing Commissions, U.S.A. Boxing, the International Boxing Association, or any other appropriate governing or sanctioning body recognized and accepted by the commission; and for amateur mixed martial artists and mixed martial arts matches or exhibitions, the commission rules shall comply with the current unified rules of mixed martial arts as recommended and/or adopted by the Association of Boxing Commissions. For full contact boxing and other boxing events that follow nontraditional rules, rules guaranteeing the safety of the participants and the fair and honest conducting of the matches or exhibitions are authorized.

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

Rules which comply with the requirements of the rules recommended or adopted by the Association of Boxing Commissions, U.S.A. Boxing, the International Boxing Association, or any other appropriate governing or sanctioning body recognized and accepted by the commission to the extent that any boxer complying with them will be eligible to participate in any state, nationally, or internationally sanctioned boxing match.

§29-5A-25. Special permits to American Legion and other organizations.

Nothing in this article contained shall be construed to render unlawful boxing, sparring or exhibition contests for any charitable purpose, the American Legion, National Guard, Veterans of Foreign Wars, or other charitable organizations, but a permit shall be obtained from the commission. No charge shall be made for such permit.

§29-5A-25a. Certain amateur matches exempt.

The provisions of this article do not apply to amateur wrestling, amateur boxing, or amateur sparring matches or exhibitions conducted by any university, college or high school.

§29-5A-26. Severability.

If any section, clause, provision or portion of this article shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause or provision of this article which is not in and of itself unconstitutional.

§29-6-1. General purpose.

The general purpose of this article is to attract to the service of this state personnel of the highest ability and integrity by the establishment of a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, removal, discipline, classification, compensation and welfare of its civil employees, and other incidents of state employment. All appointments and promotions to positions in the classified service shall be made solely on the basis of merit and fitness, except as hereinafter specified. All employment positions not in the classified service, with the exception of the board of regents, are included in a classification plan known as classified-exempt service.

§29-6-2. Definition of terms.

As used in this article, unless the context indicates otherwise, the term:

(a) "Administrator" means any person who fills a statutorily created position within or related to an agency or board (other than a board member) and who is designated by statute as commissioner, deputy commissioner, assistant commissioner, director, chancellor, chief, executive director, executive secretary, superintendent, deputy superintendent or other administrative title, however designated;

(b) "Agency" means any administrative unit of state government, including any authority, board, bureau, commission, committee, council, division, section or office;

(c) "Appointing authority" means a person or group of persons authorized by an agency to make appointments to positions in the classified or classified-exempt service;

(d) "Board" means the state Personnel Board created by section six of this article;

(e) "Class" or "class of positions" means a group of positions sufficiently similar in duties, training, experience and responsibilities, as determined by specifications, that the same qualifications, the same title and the same schedule of compensation and benefits may be equitably applied to each position in the group;

(f) "Classification plan" means the plan by which positions in the classified service and classified-exempt service have been allocated by class;

(g) "Classified-exempt service" means an employee whose position satisfies the definitions for "class" and "classify" but who is not covered under the civil service system or employed by the higher education governing boards;

(h) "Classified service" means an employee whose job satisfies the definitions for "class" and "classify" and who is covered under the civil service system;

(i) "Classify" means to group all positions in classes and to allocate every position to the appropriate class in the classification plan;

(j) "Director" means the head of the Division of Personnel as appointed by section seven of this article;

(k) "Division" means the Division of Personnel herein created;

(l) "Policy-making position" means a position in which the person occupying it: (1) Acts as an advisor to or formulates plans for the implementation of broad goals for an administrator or the Governor; (2) is in charge of a major administrative component of the agency; and (3) reports directly and is directly accountable to an administrator or the Governor;

(m) "Position" means a particular job which has been classified based on specifications;

(n) "Secretary" means the Secretary of the Department of Administration created in section two, article one, chapter five-f of this code;

(o) "Specification" means a description of a class of position which defines the class, provides examples of work performed and the minimum qualifications required for employment;

(p) "Veteran" means any person who has served in the Armed Forces of the United States of America during World War I (April 6, 1917--November 11, 1918), World War II (December 7, 1941--December 31, 1946), the Korean Conflict (June 27, 1950--January 31, 1955), the Vietnam Conflict (August 5, 1964--May 7, 1975) or in a campaign, expedition or conflict for which a campaign badge has been authorized and received by such person and who has received a discharge under honorable conditions from such service.

§29-6-3. Classified service.

The classified service includes all positions covered by the civil service system as of the effective date of this article, except as otherwise provided in this article. Positions may be added to the classified service as provided in section four of this article.

§29-6-4. Classified-exempt service; additions to classified service; exemptions.

NOTE: West Virginia Code §29-6-4 was amended by two bills passed during the 2022 Regular Session of the Legislature. When two acts of the Legislature amend the same section of the Code without express recognition in the bill of the action of the other bill, the Legislative Manager makes no determination as to the appropriate, legal effect of the two acts. Therefore, BOTH versions of this section are set out below.

The latter act, House Bill 4059 (passed on March 12, 2022), amended West Virginia Code §29-6-4 to read as follows:

(a) The classified-exempt service includes all positions included in the classified-exempt service on the effective date of this article.

(b) Except for the period commencing on July 1, 1992, and ending on the first Monday after the second Wednesday of the following January and except for the same periods commencing in the year 1996, and in each fourth year thereafter, the Governor may, by executive order, with the written consent of the State Personnel Board and the appointing authority concerned, add to the list of positions in the classified service, but the additions may not include any positions specifically exempted from coverage as provided in this section.

(c) The following offices and positions are exempt from coverage under the classified service:

(1) All judges, officers, and employees of the judiciary;

(2) All members, officers, and employees of the Legislature;

(3) All officers elected by popular vote and employees of the officer;

(4) All secretaries of departments and employees within the office of a secretary;

(5) Members of boards and commissions and heads of departments appointed by the Governor or heads of departments selected by commissions or boards when expressly exempt by law or board order;

(6) Excluding the policy-making positions in an agency, one principal assistant or deputy and one private secretary for each board or commission or head of a department elected or appointed by the Governor or Legislature;

(7) All policy-making positions, which includes newly hired Deputy Commissioners within the Department of Health and Human Resources;

(8) Patients or inmates employed in state institutions;

(9) Persons employed in a professional or scientific capacity to make or conduct a temporary and special inquiry, investigation, or examination on behalf of the Legislature or a committee thereof, an executive department, or by authority of the Governor;

(10) All employees of the office of the Governor, including all employees assigned to the executive mansion;

(11) Part-time professional personnel engaged in professional services without administrative duties;

(12) Temporary employees;

(13) Members and employees of the board of trustees and board of directors or their successor agencies;

(14) Uniformed personnel of the State Police;

(15) Temporary employees in the state forests, parks, and recreational areas; and

(16) Any person hired as an attorney beginning July 1, 2022.

(d) The Legislature finds that the holding of political beliefs and party commitments consistent or compatible with those of the Governor contributes in an essential way to the effective performance of and is an appropriate requirement for occupying certain offices or positions in state government, such as the secretaries of departments and the employees within their offices, the heads of agencies appointed by the Governor and, for each such head of agency, a private secretary and one principal assistant or deputy, all employees of the office of the Governor including all employees assigned to the executive mansion, as well as any persons appointed by the Governor to fill policy-making positions, in that those offices or positions are confidential in character and require their holders to act as advisors to the Governor or the Governor’s appointees, to formulate and implement the policies and goals of the Governor or the Governor’s appointees, or to help the Governor or the Governor’s appointees communicate with and explain their policies and views to the public, the Legislature, and the press.

(e) All county road supervisor positions are covered under the classified service effective July 1, 1999. A person employed as a county road supervisor on the effective date of this section is not required to take or pass a qualifying or competitive examination upon, or as a condition of, becoming a classified service employee. All county road supervisors who become classified service employees pursuant to this subsection who are severed, removed, or terminated in his or her employment must be severed, removed, or terminated as if the person was a classified service employee.

The earlier act, House Bill 4286 (passed on March 7, 2022) amended West Virginia Code §29-6-4 to read as follows:

(a) The classified-exempt service includes all positions included in the classified-exempt service on the effective date of this article.

(b) Except for the period commencing on July 1, 1992, and ending on the first Monday after the second Wednesday of the following January and except for the same periods commencing in the year 1996, and in each fourth year thereafter, the Governor may, by executive order, with the written consent of the State Personnel Board and the appointing authority concerned, add to the list of positions in the classified service, but the additions may not include any positions specifically exempted from coverage as provided in this section.

(c) The following offices and positions are exempt from coverage under the classified service:

(1) All judges, officers, and employees of the judiciary;

(2) All members, officers, and employees of the Legislature;

(3) All officers elected by popular vote and employees of the officer;

(4) All secretaries of departments and employees within the office of a secretary;

(5) Members of boards and commissions and heads of departments appointed by the Governor or heads of departments selected by commissions or boards when expressly exempt by law or board order;

(6) Excluding the policy-making positions in an agency, one principal assistant or deputy and one private secretary for each board or commission or head of a department elected or appointed by the Governor or Legislature;

(7) All policy-making positions;

(8) Patients or inmates employed in state institutions;

(9) Persons employed in a professional or scientific capacity to make or conduct a temporary and special inquiry, investigation, or examination on behalf of the Legislature or a committee thereof, an executive department, or by authority of the Governor;

(10) All employees of the office of the Governor, including all employees assigned to the executive mansion;

(11) Part-time professional personnel engaged in professional services without administrative duties;

(12) Temporary employees;

(13) Members and employees of the board of trustees and board of directors or their successor agencies;

(14) Uniformed personnel of the State Police;

(15) Temporary employees in the state forests, parks, and recreational areas; and

(16) Any person hired as an attorney beginning July 1, 2022.

(d) The Legislature finds that the holding of political beliefs and party commitments consistent or compatible with those of the Governor contributes in an essential way to the effective performance of and is an appropriate requirement for occupying certain offices or positions in state government, such as the secretaries of departments and the employees within their offices, the heads of agencies appointed by the Governor and, for each such head of agency, a private secretary and one principal assistant or deputy, all employees of the office of the Governor including all employees assigned to the executive mansion, as well as any persons appointed by the Governor to fill policy-making positions, in that those offices or positions are confidential in character and require their holders to act as advisors to the Governor or the Governor’s appointees, to formulate and implement the policies and goals of the Governor or the Governor’s appointees, or to help the Governor or the Governor’s appointees communicate with and explain their policies and views to the public, the Legislature, and the press.

(e) All county road supervisor positions are covered under the classified service effective July 1, 1999. A person employed as a county road supervisor on the effective date of this section is not required to take or pass a qualifying or competitive examination upon, or as a condition of, becoming a classified service employee. All county road supervisors who become classified service employees pursuant to this subsection who are severed, removed, or terminated in his or her employment must be severed, removed, or terminated as if the person was a classified service employee.

§29-6-4a.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29.

§29-6-5. Division of Personnel continued; functions.

(a) The Division of Personnel is continued within the Department of Administration.

(b) The Division of Personnel shall perform the following functions:

(1) Evaluating applicants for appointment or promotion to positions in the classified service;

(2) Establishing and applying a system of classification for positions in the classified and classified-exempt service;

(3) Establishing and applying a system of compensation for positions in the classified service;

(4) Establishing and maintaining records of employment for classified employees;

(5) Advising appointing authorities and supervisory personnel regarding disciplinary matters, the provisions of this article, rules implementing the provisions of this article, and laws and rules affecting human resource management;

(6) Providing training in human resource management and the operation of the state personnel system;

(7) Assuring compliance with this article and rules implementing the provisions of this article; and

(8) Other functions necessary to the establishment of a system of personnel administration as provided in this article.

§29-6-5a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-6-6. State Personnel Board continued; members; term; quorum; vacancies; powers and duties.

(a) There is continued within the Division a State Personnel Board consisting of the Secretary of the Department of Administration or his or her designee who serves as an ex officio nonvoting member and five members appointed by the Governor, with the advice and consent of the Senate, for terms of four years and until the appointment of their successors. No more than four members may be of the same political party. Four members of the board constitute a quorum.

(b) A member of the board may not be removed from office except for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then only in the manner prescribed in article six, chapter six of this code for the removal by the Governor of state elected officers.

(c) Citizen members of the board shall each be compensated for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties, as recommended by the Citizens Legislative Compensation Commission as authorized by law, and may be reimbursed actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of official duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.

(d) The Secretary of the Department of Administration or his or her designee serves as Chair of the board. The Board shall meet at the time and place specified by the call of the Chair. At least one meeting shall be held in each month. All meetings shall be open to the public. Notice of each meeting shall be given in writing to each member by the Director at least three days in advance of the meeting period.

(e) In addition to other powers and duties invested in it by this article or by any other law, the board shall:

(1) Propose rules for legislative approval, in accordance with chapter twenty-nine-a of this code, to implement the provisions of this article;

(2) Interpret the application of this article to any public body or entity; and

(3) Authorize and conduct any studies, inquiries, investigations or hearings in the operation of this article it considers necessary.

(f) The Director or the board may subpoena and require the attendance of witnesses in the production of evidence or documents relevant to any proceeding under this article.

§29-6-7. Director of personnel; appointment; qualifications; powers and duties.

(a) The Secretary of the Department of Administration shall appoint the director. The director shall be a person knowledgeable of the application of the merit principles in public employment as evidenced by the obtainment of a degree in business administration, personnel administration, public administration or the equivalent or at least five years of administrative experience. The salary for the director shall be that which is set out in section two-a, article seven, chapter six of this code.

(b) The director shall:

(1) Consistent with the provisions of this article, administer the operations of the division, allocating the functions and activities of the division among sections as the director may establish;

(2) Maintain a personnel management information system necessary to carry out the provisions of this article;

(3) Supervise payrolls and audit payrolls, reports or transactions for conformity with the provisions of this article;

(4) Plan, evaluate, administer and implement personnel programs and policies in state government and to political subdivisions after agreement by the parties;

(5) Supervise the employee selection process and employ performance evaluation procedures;

(6) Develop programs to improve efficiency and effectiveness of the public service, including, but not limited to, employee training, development, assistance and incentives, which, notwithstanding any provision of this code to the contrary, may include a one-time monetary incentive for recruitment and retention of employees in critically understaffed classifications. The director, in consultation with the board, shall determine which classifications are critically understaffed. The one-time monetary incentive program shall continue until June 30, 2009. The director shall report annually on or before December 31, commencing in the year 2007, to the Joint Committee on Government and Finance. The annual report shall provide all relevant information on the one-time monetary incentive program and the understaffed classifications in state agencies;

(7) Establish pilot programs and other projects for a maximum of one year outside of the provisions of this article, subject to approval by the board, to be included in the annual report;

(8) Establish and provide for a public employee interchange program and may provide for a voluntary employee interchange program between public and private sector employees;

(9) Establish an internship program;

(10) Assist the Governor and Secretary of the Department of Administration in general workforce planning and other personnel matters;

(11) Make an annual report to the Governor and Legislature and all other special or periodic reports as may be required;

(12) Assess cost for special or other services;

(13) Recommend rules to the board for implementation of this article; and

(14) Conduct schools, seminars or classes for supervisory employees of the state regarding handling of complaints and disciplinary matters and the operation of the state personnel system.

§29-6-7a. Report on a centralized personnel system.

[Repealed.]

§29-6-8. Duties of board generally.

In addition to the duties expressly set forth elsewhere in this article, the board shall:

(1) Represent the public interest in the improvement of personnel administration in the classified service.

(2) Advise the Governor, the secretary, and the director on problems concerning personnel administration.

(3) Foster the interest of institutions of learning and of industrial, civic, professional and employee organizations in the improvement of personnel standards in the classified service.

(4) Make any investigation which it may consider desirable concerning the administration of personnel in the classified service and make recommendations to the director with respect thereto.

(5) Approve the budget as prepared by the director for administration of this article before submission to the Division of Finance and administration.

§29-6-9. Civil service commission abolished; transfer of duties and responsibilities; rule of construction; transfer of employees, equipment, and records; continuation of programs, protections and rules.

(a) The civil service commission is hereby abolished. All duties and responsibilities heretofore imposed upon the civil service commission are hereby imposed upon the state personnel board, and all duties and responsibilities heretofore imposed upon the director of the civil service system are hereby imposed upon the director of the Division of Personnel. Except as used in this section, the words "civil service commission" or "commission," when used in this article, shall refer to and mean the state personnel board. Whenever reference is made to the director of the civil service commission, the power or duty prescribed shall apply to the director of the Division of Personnel.

(b) Persons employed on the effective date of this article by the civil service commission, the duties and functions of which have been transferred to the Division of Personnel, are hereby assigned and transferred to the Division of Personnel. It is the intent of this article to consolidate into the Division of Personnel those agencies and employees performing personnel functions which will be facilitated by their consolidation, except as excluded in section four of this article. On the effective date of this article, all personnel payroll positions and employees occupying those positions necessary to effectuate the purposes of this article shall be transferred to the Division of Personnel: Provided, That in order to provide for a smooth transition, the Governor may, by executive order, determine those positions and employees that shall be transferred and provide that the transfers provided for in this subsection take effect no later than September 30, 1989.

(c) Upon the transfer, if any, of any personnel payroll positions as provided in subsection (b) of this section from the Division of Highways, the Division of Motor Vehicles, the workers' compensation fund, the Public Service Commission, or any other department or division operating from special revenue funds or federal funds, such department or division shall pay to the Division of Personnel the costs of personnel services, as determined by the secretary of the Department of Administration, provided to their respective divisions. When no specific appropriation is made for this purpose, such payments shall be made from personal services, annual increment, and employee benefit appropriations to the department or division. Upon the transfer of any personnel payroll positions to the Division of Personnel from any department or division funded from general revenues of the state, the Governor is authorized and empowered to order the transfer of funds for those positions.

(d) The abolishment of the civil service commission and the creation of the Division of Personnel shall in no way hinder any ongoing programs, benefits, litigation, or grievance procedures. Employees in the classified service who have gained permanent status as of the effective date of this article will not be subject to further qualifying examination by reason of any transfer required by the provisions of this section, except when they wish to qualify for promotion. Nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state to the procedures and protections set forth in sections ten and ten-a of this article, except as provided in subsection (d), section two, article two, chapter five-f of this code.

(e) On the effective date of this article, all equipment and records necessary to effectuate the purposes of this article shall be transferred to the Division of Personnel: Provided, That in order to provide for a smooth transition, the Governor may, by executive order, determine the equipment and records to be transferred and provide that the transfers provided for in this subsection take effect no later than September 30, 1989.

(f) The rules of the civil service commission shall remain in force and effect until promulgation of new or additional rules by the state personnel board.

(g) Nothing contained in this article shall be construed to preclude the reclassification or reallocation of positions in accordance with procedures set forth in section ten of this article.

§29-6-9a.

Repealed.

Acts, 2009 Reg. Sess., Ch. 202.

§29-6-10. Rules of division.

The board shall have the authority to promulgate, amend or repeal rules, according to chapter twenty-nine-a of this code, to implement the provisions of this article:

(1) For the preparation, maintenance and revision of a position classification plan for all positions in the classified service and a position classification plan for all positions in the classified-exempt service, based upon similarity of duties performed and responsibilities assumed, so that the same qualifications may reasonably be required for and the same schedule of pay may be equitably applied to all positions in the same class. Except for persons employed by the governing boards of higher education, all persons receiving compensation as a wage or salary, funded either in part or in whole by the state, are included in either the position classification plan for classified service or classified-exempt service. After each such classification plan has been approved by the board, the director shall allocate the position of every employee in the classified service to one of the classes in the classified plan and the position of every employee in the classified-exempt service to one of the positions in the classified-exempt plan. Any employee affected by the allocation of a position to a class shall, after filing with the director of personnel a written request for reconsideration thereof in such manner and form as the director may prescribe, be given a reasonable opportunity to be heard thereon by the director. The interested appointing authority shall be given like opportunity to be heard.

(2) For a pay plan for all employees in the classified service, after consultation with appointing authorities and the state fiscal officers, and after a public hearing held by the board. Such pay plan shall become effective only after it has been approved by the Governor after submission to him by the board. Amendments to the pay plan may be made in the same manner. Each employee shall be paid at one of the rates set forth in the pay plan for the class of position in which he is employed. The principle of equal pay for equal work in the several agencies of the state government shall be followed in the pay plan as established hereby.

(3) For open competitive examinations to test the relative fitness of applicants for the respective positions in the classified service. Such examinations need not be held until after the rules have been adopted, the service classified and a pay plan established, but shall be held not later than one year after this article takes effect. Such examinations shall be announced publicly at least fifteen days in advance of the date fixed for the filing of applications therefor, and may be advertised through the press, radio and other media. The director may, however, in his or her discretion, continue to receive applications and examine candidates long enough to assure a sufficient number of eligibles to meet the needs of the service and may add the names of successful candidates to existing eligible lists in accordance with their respective ratings.

An additional five points shall be awarded to the score of any examination successfully completed by a veteran. A disabled veteran shall be entitled to an additional ten points, rather than five points as aforesaid, upon successful completion of any examination.

(4) For promotions within the classified service which shall give appropriate consideration to the applicant's qualifications, record of performance, seniority and his or her score on a written examination, when such examination is practicable. An advancement in rank or grade or an increase in salary beyond the maximum fixed for the class shall constitute a promotion. When any benefit such as a promotion, wage increase or transfer is to be awarded, or when a withdrawal of a benefit such as a reduction in pay, a layoff or job termination is to be made, and a choice is required between two or more employees in the classified service as to who will receive the benefit or have the benefit withdrawn, and if some or all of the eligible employees have substantially equal or similar qualifications, consideration shall be given to the level of seniority of each of the respective employees as a factor in determining which of the employees will receive the benefit or have the benefit withdrawn, as the case may be. When an employee classified in a secretarial or clerical position has, irrespective of job classification, actual job experience related to the qualifications for a managerial or supervisory position, the division shall consider the experience as qualifying experience for the position. The division in its classification plan may, for designated classifications, permit substitution of qualifying experience for specific educational or training requirements at a rate determined by the division.

(5) For layoffs by classification for reason of lack of funds or work, or abolition of a position, or material changes in duties or organization, or any loss of position because of the provisions of this subdivision and for recall of employees so laid off, consideration shall be given to an employee's seniority as measured by permanent employment in the classified service or a state agency. In the event that the agency wishes to lay off a more senior employee, the agency must demonstrate that the senior employee cannot perform any other job duties held by less senior employees within that agency in the job class or any other equivalent or lower job class for which the senior employee is qualified: Provided, That if an employee refuses to accept a position in a lower job class, such employee shall retain all rights of recall as hereinafter provided.

(6) For recall of employees, recall shall be by reverse order of layoff to any job class that the employee has previously held or a lower class in the series within the agency as that job class becomes vacant. An employee will retain his or her place on the recall list for the same period of time as his or her seniority on the date of his or her layoff or for a period of two years, whichever is less. No new employees shall be hired for any vacancy in his or her job class or in a lower job class in the series until all eligible employees on layoff are given the opportunity to refuse that job class. An employee shall be recalled onto jobs within the county wherein his or her last place of employment is located or within a county contiguous thereto. Any laid-off employee who is eligible for a vacant position shall be notified by certified mail of the vacancy. It shall be the responsibility of the employee to notify the agency of any change in his or her address.

Notwithstanding any other provision of the code to the contrary, except for the provisions of section seven, article two, chapter five-b of this code, when filling vacancies at state agencies the directors of state agencies shall, for a period of twelve months after the layoff of a permanent classified employee in another agency, give preference to qualified permanent classified employees based on seniority and fitness over all but existing employees of the agency or its facilities: Provided, That employment of these persons who are qualified and who were permanently employed immediately prior to their layoff shall not supersede the recall rights of employees who have been laid off in such agency or facility.

(7) For the establishment of eligible lists for appointment and promotion within the classified service, upon which lists shall be placed the names of successful candidates in the order of their relative excellence in the respective examinations. Eligibility for appointment from any such list shall continue not longer than three years. An appointing authority shall make his selection from the top ten names on the appropriate lists of eligibles, or may choose any person scoring at or above the ninetieth percentile on the examination.

For the establishment of eligible lists for preference as provided in subdivision (6) of this section, a list shall be provided according to seniority. An appointed authority shall make the selection of the most senior qualified person: Provided, That eligibility for appointment from any such list shall continue not longer than one year and shall cease immediately upon appointment to a classified position.

(8) For the rejection of candidates or eligibles within the classified service who fail to comply with reasonable requirements in regard to such factors as age, physical condition, character, training and experience who are addicted to alcohol or narcotics or who have attempted any deception or fraud in connection with an examination.

(9) For a period of probation not to exceed one year before appointment or promotion may be made complete within the classified service.

(10) For provisional employment without competitive examination within the classified service when there is no appropriate eligible list available. No such provisional employment may continue longer than six months, nor shall successive provisional appointments be allowed, except during the first year after the effective date of this article, in order to avoid stoppage of orderly conduct of the business of the state.

(11) For keeping records of performance of all employees in the classified service, which service records may be considered in determining salary increases and decreases provided in the pay plan; as a factor in promotion tests; as a factor in determining the order of layoffs because of lack of funds or work and in reinstatement; and as a factor in demotions, discharges and transfers.

(12) For discharge or reduction in rank or grade only for cause of employees in the classified service. Discharge or reduction of these employees shall take place only after the person to be discharged or reduced has been presented with the reasons for such discharge or reduction stated in writing, and has been allowed a reasonable time to reply thereto in writing, or upon request to appear personally and reply to the appointing authority or his or her deputy: Provided, That upon an involuntary discharge for cause, the employer may require immediate separation from the workplace, or the employee may elect immediate separation. If separation is required by the employer in lieu of any advance notice of discharge, or if immediate separation is elected by an employee who receives notice of an involuntary discharge for cause, the employee is entitled to receive severance pay attributable to time the employee otherwise would have worked, up to a maximum of fifteen calendar days following separation. Receipt of severance pay does not affect any other right to which the employee is entitled with respect to the discharge. The statement of reasons and the reply shall be filed as a public record with the director. Notwithstanding the foregoing provisions of this subdivision, no permanent employee shall be discharged from the classified service for absenteeism upon using all entitlement to annual leave and sick leave when such use has been due to illness or injury as verified by a physician's certification or for other extenuating circumstances beyond the employee's control unless his or her disability is of such a nature as to permanently incapacitate him or her from the performance of the duties of his or her position. Upon exhaustion of annual leave and sick leave credits for the reasons specified herein and with certification by a physician that the employee is unable to perform his or her duties, a permanent employee shall be granted a leave of absence without pay for a period not to exceed six months if such employee is not permanently unable to satisfactorily perform the duties of his or her position.

(13) For such other rules and administrative regulations, not inconsistent with this article, as may be proper and necessary for its enforcement.

(14) The board shall review and approve by rules the establishment of all classified-exempt positions to assure consistent interpretation of the provisions of this article.

The provisions of this section are subject to any modifications contained in chapter five-f of this code. The board may include in the rules provided for in this article such provisions as are necessary to conform to regulations and standards of any federal agency governing the receipt and use of federal grants-in-aid by any state agency, anything in this article to the contrary notwithstanding. The board and the director shall see that rules and practices meeting such standards are in effect continuously after the effective date of this article.

§29-6-10a. Reduction in work force.

(a) Notwithstanding any other provision of this article or any rule promulgated thereunder to the contrary, an employee in the classified service who has performed work for a reasonable period of time in a position with a classification that is higher than the position in which he is employed and classified may, in the event that his regular position would be terminated as a result of a reduction in force in his division, have the right to request that his classification be reviewed and that, in his or her supervisor's discretion, he be promoted to the higher classified position by passing a qualifying examination for such higher position and providing sufficient evidence of his work periods and satisfactory performance of the duties and responsibilities of the higher classified position.

The commission shall provide by legislative rule for the maintenance of records by all covered agencies of the work periods and rating of job performance of employees performing work in a position or positions with a classification that is higher than the position in which he is employed and classified and the duration of work periods required to request review and promotion.

(b) The provisions of this subsection shall be of no force and effect on and after July 1, 1995. Notwithstanding any other provision of this code to the contrary, a managerial or supervisory employee in the classified service of this state with a classified service pay grade of sixteen or higher who is adversely affected by a reduction in force shall not be entitled to be reassigned, transferred or otherwise retained for any position in state government except as provided in this section, and no regulation or policy shall provide for such a right: Provided, That there shall be no redesignation of the levels of pay grades in the classified service in effect on May 1, 1994. Any such employee shall have the right, upon notice of and prior to the effective date of the reduction in force, to accept a position in a lower job class at no less than the entry salary of that position if the employee: (1) Has formerly performed the duties of that position or the substantial equivalent thereof and is otherwise qualified within the classified service for that position; and (2) is a more senior employee than the least senior employee then employed in such position. No provision of this section shall be construed to deny the right of the appointing authority, in his or her discretion, to reassign, transfer or otherwise retain such employee to or for another position for which the employee is qualified within the classified service. Where the employee is not reassigned, transferred or otherwise retained pursuant to the provisions of this section, no provision of this section shall be construed to deny the employee the opportunity to reapply for entrance in the classified service of the state through participation in competitive examinations.

§29-6-11. Duty to furnish facilities for division's use.

All officers and employees of the state and of municipalities and political subdivisions of the state shall allow the division the reasonable use of public buildings under their control, and furnish heat, light and furniture, for any examination, hearing or investigation authorized by this article. The division shall pay to a municipality or political subdivision the reasonable cost of any such facilities furnished by it.

§29-6-12. Duties of state officers and employees; legal proceedings to secure compliance with article and rules.

All officers and employees of the state shall comply with and aid in all proper ways in carrying out the provisions of this article and the rules and orders thereunder. All officers and employees shall furnish any records or information which the director may request for any purpose of this article. The director may institute and maintain any action or proceeding at law or in equity that he considers necessary or appropriate to secure compliance with this article and the rules and orders thereunder.

§29-6-13.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29.

§29-6-14. Certification of payrolls; wrongfully withholding certification of payroll.

(a) No state disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal service to any person holding a position in the classified service unless the payroll voucher or account of such pay bears the certification of the director, or of his authorized agent, that the persons named therein have been appointed and employed in accordance with the provisions of this article and the rules, regulations and orders thereunder. The director may for proper cause withhold certification from an entire payroll or from any specific item or items thereon. The director may, however, provide that certification of payrolls may be made once every six months, and such certification shall remain in effect except in the case of any officer or employee whose status has changed after the last certification of his payroll. In the latter case no voucher for payment of salary to such employee shall be issued or payment of salary made without further certification by the director.

(b) If the director wrongfully withholds certification of the payroll voucher or account of any employee, such employee may maintain a proceeding in the courts to compel the director to certify such payroll voucher or account.

§29-6-15.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29.

§29-6-16. Records of division.

The records of the division, except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection, subject to reasonable regulations as to the time and manner of inspection which may be prescribed by the director.

§29-6-17. Services to political subdivisions; cooperation with agencies for other jurisdictions.

(a) Subject to the approval of the board the director may enter into agreements with any municipality or other political subdivision of the state to furnish services and facilities of the division to such municipality or political subdivision in the administration of its personnel on merit principles. Any such agreements shall provide for the reimbursement to the state of the reasonable cost of the services and facilities furnished, as determined by the director. All municipalities and political subdivisions of the state are hereby authorized to enter into such agreements. Subject to the approval of the board, the director may enter into an agreement with the state department of health for the inclusion of personnel of local health departments under the classified service system established by this article.

(b) The director may cooperate with governmental agencies for other jurisdictions charged with personnel administration in conducting joint tests and establishing joint lists from which eligibles shall be certified for appointment in accordance with the provisions of this article.

§29-6-17a.

Repealed.

Acts, 1999 Reg. Sess., Ch. 52.

§29-6-17b.

Repealed.

Acts, 1999 Reg. Sess., Ch. 52.

§29-6-18.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29.

§29-6-19. Refusal to testify.

If any employee in the classified or classified-exempt service shall willfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or answer any question relating to the affairs or government of the state or the conduct of any state officer or employee on the ground that his testimony or answers would tend to incriminate him or shall refuse to accept a grant of immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry, he shall forfeit his office or position and shall not be eligible thereafter for appointment to any position in the classified or classified-exempt service.

§29-6-20. Favoritism or discrimination because of political or religious opinions, affiliations or race; political activities prohibited.

(a) No person shall be appointed or promoted to or demoted or dismissed from any position in the classified service or in any way favored or discriminated against with respect to such employment because of his or her political or religious opinions or affiliations or race; but nothing herein shall be construed as precluding the dismissal of any employee who may be engaged in subversive activities or found disloyal to the nation.

(b) No person shall seek or attempt to use any political endorsement in connection with any appointment in the classified service.

(c) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person or for any consideration.

(d) No employee in the classified service or member of the board or the director shall, directly or indirectly, solicit or receive any assessment, subscription or contribution, or perform any service for any political party, committee or candidate for compensation, other than for expenses actually incurred, or in any manner take part in soliciting any such assessment, subscription, contribution or service of any employee in the classified service.

(e) Notwithstanding any other provision of this code, no employee in the classified service shall:

(1) Use his or her official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;

(2) Directly or indirectly coerce, attempt to coerce, command or advise a state or local officer or employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for political purposes; or

(3) Be a candidate for any national or state paid public office or court of record; or hold any paid public office other than as a paid poll clerk or worker; or be a member of any national, state or local committee of a political party, or a financial agent or treasurer within the meaning of the provisions of section three, four or five-e, article eight, chapter three of this code. Other types of partisan or nonpartisan political campaigning and management not inconsistent with the provisions of this subdivision and with the provisions of subsection (d) of this section shall be permitted.

(f) Political participation pertaining to Constitutional amendments, referendums, approval of municipal ordinances or activities, serving as a poll clerk or worker or being a candidate for or serving as a delegate to any state or national political party convention shall not be deemed to be prohibited by the foregoing provisions of this section.

(g) Any classified employee who becomes a candidate for any paid public office as permitted by this section shall be placed on a leave of absence without pay for the period of such candidacy, commencing upon the filing of the certificate of candidacy.

§29-6-21. Acts prohibited.

(a) No person shall make any false statement, certificate, mark, rating or report with regard to any test, certification or appointment made under any provisions of this article or in any manner commit or attempt to commit any fraud preventing the impartial execution of this article and the rules.

(b) No person shall, directly or indirectly, give, render, pay, offer, solicit or accept any money, or other valuable consideration for or on account of any certification, appointment, proposed appointment, promotion or proposed promotion to, or any advantage in, a position in the classified service.

(c) No employee of the division, examiner, or other person shall defeat, deceive or obstruct any person in his right to examination, eligibility, certification or appointment under this article, or furnish to any person any special or secret information for the purpose of affecting the rights or prospects of any person with respect to employment in the classified service.

§29-6-22. Penalties.

(a) Any person who willfully violates any provision of this article or of the rules shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or imprisoned in the county jail for a period not to exceed one year, or both fined and imprisoned. Jurisdiction under this section shall be in a court of record exercising criminal jurisdiction within the county wherein the offense is committed.

(b) Any person who is convicted of a misdemeanor under this article shall, for a period of five years, be ineligible for appointment to or employment in a position in the classified or classified-exempt service, and if he is an officer or employee of the state, shall forfeit his present office or position.

§29-6-23. Special fund; appropriations; cost of administering article; acceptance of grants or contribution; disbursements.

For the operation of the division, there is hereby created in the state Treasury a special revolving fund to be known and designated as the "Division of Personnel fund." This fund shall consist of appropriations made by the Legislature, funds transferred in accordance with the provisions of section nine of this article, funds received for personnel services rendered to other agencies, departments, divisions and units of state and local government, and funds received by grant or contribution from the federal government or any other entity which funds the division is hereby authorized to receive: Provided, That for fiscal year one thousand nine hundred ninety all funds remaining in account numbers 5840-00, 5840-35 and 5840-17 shall be transferred to the Division of Personnel fund on the effective date of this article. Each agency, department, division or unit of state or local government served by the Division of Personnel is hereby authorized and directed to transmit to the division for deposit in said special fund the charges made by the Division of Personnel for personnel services rendered, such charges to be those fixed in a schedule or schedules prepared by the director and approved by the secretary of the Department of Administration. Disbursements from the fund shall be made in accordance with an approved expenditure schedule as provided by article two, chapter five-a of this code and shall be made under the direct supervision of the director.

The director shall maintain accurate records reflecting the cost of administering the provisions of this article.

§29-6-24. Posting of job openings.

(a) Whenever a job opening occurs within the classified service, the appointing authority shall, in addition to any other requirement of law or regulation for the posting of job opening notices, at least ten days before making an appointment to fill the job opening, post a notice within the building or facility where the duties of the job will be performed and throughout the agency, which notice states that a job opening has occurred and describes the duties to be performed by a person employed in that position.

(b) If an individual selected for a posted vacancy within the first ten work days of employment: (1) Refuses the offer of employment; (2) fails to report to work; or (3) resigns or otherwise separates from employment, the appointing authority is not required to repost the vacancy prior to another appointment to the position if the appointment is made within thirty days and the selection is made from the pool of eligible applicants from which the first employee was hired.

§29-6-25. Implementation; report to Governor and Legislature.

(a) General implementation is to be completed no later than twelve months following the effective date of this article.

(b) There is hereby created an implementation task force to assist in the general implementation of this article and the establishment of the division. The task force shall consist of twelve members and the director of personnel. Task force members shall be appointed by the Governor.

(c) The director shall provide a report to the secretary of the Department of Administration, who shall then, within one year from the effective date of this article, report to the Governor and Legislature on the progress of the implementation of this article.

§29-6-26. Employee representative organization bulletin boards.

A bulletin board of a limited size shall be provided for posting notices of employee representative organizations. Such bulletin boards will be placed in convenient and generally accessible locations in all workplaces where the members of such organizations are employed. Provisions shall be made for separate bulletin boards for each employee representative organization. The cost of such bulletin boards will be assumed by the requesting employee or the employee's representative organization. Such boards shall be used exclusively by the employee representative organization and for organization purposes only.

§29-6-27. Leave donation program.

The Division of Personnel after consultation with other state agencies shall establish a program under which annual leave accrued or accumulated by an employee of an agency may, if voluntarily agreed to by the employee, be transferred to the annual leave account of another designated employee if the other employee requires additional leave because of a medical emergency. The annual leave program shall be established by legislative rule pursuant to the provisions of chapter twenty-nine-a of this code. The Division of Personnel shall file such legislative rule no later than July 15, 1995. The division shall prepare an annual status report to be presented to the Joint Committee on Government and Finance no later than January 5, each year. A "medical emergency" means a medical condition of an employee or a family member of the employee that is likely to require the prolonged absence of the employee from duty and which will result in a substantial loss of income to the employee because of the unavailability of paid leave. As used in this section, "employee" includes employees in the classified and classified-exempt service and employees exempt from coverage who are under this article entitled to annual leave as a benefit of employment: Provided, That none of the leave so transferred may be used to qualify for or add to service for any retirement system administered by the State of West Virginia.

§29–6-28. Leave time for organ donation.

(a) A full-time state employee shall receive up to one hundred twenty hours of leave with pay during each calendar year to use during those hours when the employee is absent from work because of the employee's donation of any portion of an adult liver or because of the employee's donation of an adult kidney.

(b) A full-time state employee shall receive up to fifty-six hours of leave with pay during each calendar year to use during those hours when the employee is absent from work because of the employee's donation of adult bone marrow.

(c) An appointing authority shall compensate a full-time state employee who uses leave granted under this section at the employee's regular rate of pay for those regular work hours during which the employee is absent from work.

(d) The Director of Personnel shall provide information about this section to full-time employees.

(e) The Legislature hereby encourages political subdivisions and private employers in this state to grant their full-time employees paid leave similar to the paid leave granted to full-time state employees under this section.

§29-6A-1.

Repealed.

Acts, 2007 Reg. Sess., Ch. 207.

§29-7-1. Appointment; qualifications; salary.

There shall be a poet laureate of West Virginia, who shall be appointed by, and serve during the will and pleasure of the Governor. No person shall be eligible to such appointment who is not a resident of this state, and who has not written and published poems of recognized merit. The poet laureate shall receive an annual salary of $2,000, payable in equal quarterly installments.

§29-8-1. Blennerhassett Island Historical State Park Commission termination.

The Blennerhassett Island Historical State Park Commission shall cease to exist on July 1, 2008. The termination of the commission is exempt from the wind down provisions of section twelve, article ten, chapter four of this code. All members of the commission duly appointed and serving shall cease to hold the office or perform the duties that the office may provide. All property, real or tangible, all powers, expressed or implied, and all authority granted to the commission transfers to the Division of Natural Resources effective upon passage of this section.

§29-8-2.

Repealed.

Acts, 2008 Reg. Sess., Ch. 20.

§29-8-3.

Repealed.

Acts, 2008 Reg. Sess., Ch. 20.

§29-8-4.

Repealed.

Acts, 2008 Reg. Sess., Ch. 20.

§29-8-5.

Repealed.

Acts, 2008 Reg. Sess., Ch. 20.

§29-8-6.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.

§29-8-7.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.

§29-8-8.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.

§29-8-9.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.

§29-8-10.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.

§29-9-1.

Repealed.

Acts, 1961 Reg. Sess., Ch. 131.

§29-10-1.

Repealed.

Acts, 1959 Reg. Sess., Ch. 50.

§29-11-1.

Repealed.

Acts, 1961 Reg. Sess., Ch. 132.

§29-12-1. Intent and objects.

Recognition is given to the fact that the State of West Virginia owns extensive properties of varied types and descriptions representing the investment of vast sums of money; that the state and its officials, agents and employees engage in many governmental activities and services and incur and undertake numerous governmental responsibilities and obligations; that such properties are subject to losses, damage, destruction, risks and hazards and such activities and responsibilities are subject to liabilities which can and should be covered by a sound and adequate insurance program; and that good business and insurance practices and principles necessitate the centralization of responsibility for the purchase, control and supervision of insurance coverage on all state properties, activities and responsibilities and the cooperation and coordination of all state officials, departments and employees in the development and success of such centralized state insurance program. Wherefore, in order to accomplish these desired ends and objectives, the provisions of this article are hereby enacted into law in response to manifest needs and requirements therefor and in the interest of the establishment and development of an adequate, economical and sound state insurance and bonding service on all state property, activities and responsibilities.

§29-12-2. Definitions.

As used in this article, unless the context otherwise clearly requires:

(a) "Board" means the state Board of Risk and Insurance Management.

(b) "Company" means and includes corporations, associations, partnerships and individuals.

(c) "Insurance" means all forms of insurance and bonding services available for protection and indemnification of the state and its officials, employees, properties, activities and responsibilities against loss or damage or liability, including fire, marine, casualty, and surety insurance.

(d) "Insurance company" means all insurers or insurance carriers, including, but not limited to, stock insurance companies, mutual insurance companies, reciprocal and interinsurance exchanges, and all other types of insurers and insurance carriers, including life, accident, health, fidelity, indemnity, casualty, hospitalization and other types and kinds of insurance companies, organizations and associations, but excepting and excluding workers' compensation coverage.

(e) "State property activities" and "state responsibilities" means and includes all operations, boards, commissions, works, projects and functions of the state, its properties, officials, agents and employees which, within the scope and in the course of governmental employment, may be subject to liability, loss, damage, risks and hazards recognized to be and normally included within insurance and bond coverages.

(f) "State property" means all property belonging to the State of West Virginia and any boards or commissions thereof wherever situated and which is the subject of risk or reasonably considered to be subject to loss or damage or liability by any single occurrence of any event insured against.

§29-12-3. State Board of Risk and Insurance Management; creation, composition, qualifications, and compensation.

(a)(1) The "state board of insurance of West Virginia" is hereby reestablished, reconstituted and continued as the state Board of Risk and Insurance Management. The board shall be composed of five members. One member shall be the vice chancellor of health sciences of the West Virginia Higher Education Policy Commission. The remaining four members shall be appointed by the Governor with the advice and consent of the Senate. One member shall be appointed by the Governor from a list of three eligible persons submitted to the Governor by the President of the Senate, and one member shall be appointed by the Governor from a list of three eligible persons submitted to the Governor by the Speaker of the House of Delegates. Each member shall be a resident of West Virginia and shall have experience in one or more of the following areas: law, accounting, business, insurance or actuarial science.

(2) Initial appointment of the members other than the vice chancellor for health sciences shall be for the following terms:

One member shall be appointed for a term ending June 30, 2003;

One member shall be appointed for a term ending June 30, 2004;

One member shall be appointed for a term ending June 30, 2005; and

One member shall be appointed for a term ending June 30, 2006.

(3) Except for appointments to fill vacancies, each subsequent appointment shall be for a term ending June 30 of the fourth year following the year the preceding term expired. In the event a vacancy occurs it shall be filled by appointment for the unexpired term. A member whose term has expired shall continue in office until a successor has been duly appointed and qualified. No member of the board may be removed from office by the Governor except for official misconduct, incompetency, neglect of duty, or gross immorality.

(4) Members of the board appointed prior to the reenactment of this article during the sixth extraordinary session of the 2001 Legislature, shall serve until December 15, 2001.

(b) The Insurance Commissioner of West Virginia shall serve as secretary of the board without vote and shall make available to the board the information, facilities and services of the office of the state Insurance Commissioner.

(c) The members of the board shall receive from the executive director of the board the same compensation authorized by law for members of the Legislature for the interim duties for each day, or portion thereof, the member is engaged in the discharge of official duties. All board members shall be reimbursed for their actual and necessary expenses incurred in the discharge of official duties, except that mileage shall be reimbursed at the same rate as that authorized for members of the Legislature.

(d) Notwithstanding any provision of this section to the contrary, the board is subject to the provisions of section twelve of this article.

§29-12-4. Organization, meetings, records and reports of board.

The board shall select one of its members as chairman and shall meet in the office of the Insurance Commissioner upon call of the chairman. The board shall keep records of all of its proceedings which shall be public and open to inspection, shall adopt a seal and shall exercise and perform the duties prescribed by this article.

The board shall report in writing to the Governor, Legislative Auditor and budget director on or before the thirty-first day of August of each year. Such report shall contain a summary of the board's proceedings during the preceding fiscal year including a detailed and itemized statement and summary of all state insurance procured by the board during such fiscal year.

§29-12-5. Powers and duties of board.

(a)(1) The board has, without limitation and in its discretion as it seems necessary for the benefit of the insurance program, general supervision and control over the insurance of state property, activities and responsibilities, including:

(A) The acquisition and cancellation of state insurance;

(B) Determination of the kind or kinds of coverage;

(C) Determination of the amount or limits for each kind of coverage;

(D) Determination of the conditions, limitations, exclusions, endorsements, amendments and deductible forms of insurance coverage;

(E) Inspections or examinations relating to insurance coverage of state property, activities and responsibilities;

(F) Reinsurance; and

(G) Any and all matters, factors and considerations entering into negotiations for advantageous rates on and coverage of such state property, activities and responsibilities.

(2) The board shall endeavor to secure reasonably broad protection against loss, damage or liability to state property and on account of state activities and responsibilities by proper, adequate, available and affordable insurance coverage and through the introduction and employment of sound and accepted principles of insurance, methods of protection and principles of loss control and risk.

(3) The board is not required to provide insurance for every state property, activity or responsibility.

(4) Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped from relying upon the Constitutional immunity of the State of West Virginia against claims or suits: Provided, That nothing herein shall bar a state agency or state instrumentality from relying on the Constitutional immunity granted the State of West Virginia against claims or suits arising from or out of any state property, activity or responsibility not covered by a policy or policies of insurance: Provided, however, That nothing herein shall bar the insurer of political subdivisions from relying upon any statutory immunity granted such political subdivisions against claims or suits.

(5) The board shall make a complete survey of all presently owned and subsequently acquired state property subject to insurance coverage by any form of insurance, which survey shall include and reflect inspections, appraisals, exposures, fire hazards, construction and any other objectives or factors affecting or which might affect the insurance protection and coverage required.

(6) The board shall keep itself currently informed on new and continuing state activities and responsibilities within the insurance coverage herein contemplated. The board shall work closely in cooperation with the state Fire Marshal's office in applying the rules of that office insofar as the appropriations and other factors peculiar to state property will permit.

(7) The board may negotiate and effect settlement of any and all insurance claims arising on or incident to losses of and damages to covered state properties, activities and responsibilities hereunder and shall have authority to execute and deliver proper releases of all such claims when settled. The board may adopt rules and procedures for handling, negotiating and settlement of all such claims. Any discussion or consideration of the financial or personal information of an insured may be held by the board in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code.

(8) The board may employ an executive director and such other employees, including legal counsel, as may be necessary to carry out its duties. The executive director shall receive an annual salary as provided in section two-a, article seven, chapter six of this code. The legal counsel may represent the board before any judicial or administrative tribunal and perform such other duties as may be requested by the board.

(9) The board may enter into any contracts necessary to the execution of the powers granted to it by this article or to further the intent of this article.

(10) The board may make rules governing its functions and operations and the procurement of state insurance. Except where otherwise provided by statute, rules of the board are subject to the provisions of article three, chapter twenty-nine-a of this code.

(11) The funds received by the board, including, but not limited to, state agency premiums, mine subsidence premiums and political subdivision premiums, shall be deposited with the West Virginia Investment Management Board with the interest income and returns on investment a proper credit to such property insurance trust fund or liability insurance trust fund as applicable.

(b) (1) Definitions. — The following words and phrases when used in this subsection, for the purposes of this subsection, have the meanings respectively ascribed to them in this subsection;

(A) "Political subdivision" has the same meaning as in section three, article twelve-a of this chapter;

(B) "Charitable" or "public service organization" means any hospital in this state which has been certified as a critical access hospital by the federal Centers for Medicare and Medicaid upon the designation of the state Office of Rural Health Policy, the Office of Community and Rural Health Services, the Bureau for Public Health or the Department of Health and any bona fide, not-for-profit, tax-exempt, benevolent, educational, philanthropic, humane, patriotic, civic, religious, eleemosynary, incorporated or unincorporated association or organization or a rescue unit or other similar volunteer community service organization or association, but does not include any nonprofit association or organization, whether incorporated or not, which is organized primarily for the purposes of influencing legislation or supporting or promoting the campaign of any candidate for public office; and

(C) "Emergency medical service agency" has the same meaning as in §16-4C-3 of this code.

(2) If requested by a political subdivision, a charitable or public service organization or an emergency medical services agency, the board may, but is not required to, provide property and liability insurance to insure the property, activities and responsibilities of the political subdivision, charitable or public service organization or emergency medical services agency. The board may enter into any contract necessary to the execution of the powers granted by this article or to further the intent of this article.

(A) Property insurance provided by the board pursuant to this subsection may also include insurance on property leased to or loaned to the political subdivision, a charitable or public service organization or an emergency medical services agency which is required to be insured under a written agreement.

(B) The cost of insurance, as determined by the board, shall be paid by the political subdivision, the charitable or public service organization or the emergency medical services agency and may include administrative expenses. For purposes of this section, if an emergency medical services agency is a for-profit entity, its claims history may not adversely affect other participants' rates in the same class.

(c)(1) The board has general supervision and control over the optional medical liability insurance programs providing coverage to health care providers as authorized by the provisions of article twelve-b of this chapter. The board is hereby granted and may exercise all powers necessary or appropriate to carry out and effectuate the purposes of this article.

(2) The board shall:

(A) Administer the preferred medical liability program and the high risk medical liability program and exercise and perform other powers, duties and functions specified in this article;

(B) Obtain and implement, at least annually, from an independent outside source, such as a medical liability actuary or a rating organization experienced with the medical liability line of insurance, written rating plans for the preferred medical liability program and high-risk medical liability program on which premiums shall be based;

(C) Prepare and annually review written underwriting criteria for the preferred medical liability program and the high-risk medical liability program. The board may utilize review panels, including, but not limited to, the same specialty review panels to assist in establishing criteria;

(D) Prepare and publish, before each regular session of the Legislature, separate summaries for the preferred medical liability program and high-risk medical liability program activity during the preceding fiscal year, each summary to be included in the board of Risk and Insurance Management audited financial statements as "other financial information" and which shall include a balance sheet, income statement and cash flow statement, an actuarial opinion addressing adequacy of reserves, the highest and lowest premiums assessed, the number of claims filed with the program by provider type, the number of judgments and amounts paid from the program, the number of settlements and amounts paid from the program and the number of dismissals without payment;

(E) Determine and annually review the claims history debit or surcharge for the high-risk medical liability program;

(F) Determine and annually review the criteria for transfer from the preferred medical liability program to the high-risk medical liability program;

(G) Determine and annually review the role of independent agents, the amount of commission, if any, to be paid therefor and agent appointment criteria;

(H) Study and annually evaluate the operation of the preferred medical liability program and the high-risk medical liability program and make recommendations to the Legislature, as may be appropriate, to ensure their viability, including, but not limited to, recommendations for civil justice reform with an associated cost-benefit analysis, recommendations on the feasibility and desirability of a plan which would require all health care providers in the state to participate with an associated cost-benefit analysis, recommendations on additional funding of other state-run insurance plans with an associated cost-benefit analysis and recommendations on the desirability of ceasing to offer a state plan with an associated analysis of a potential transfer to the private sector with a cost-benefit analysis, including impact on premiums;

(I) Establish a five-year financial plan to ensure an adequate premium base to cover the long-tail nature of the claims-made coverage provided by the preferred medical liability program and the high-risk medical liability program. The plan shall be designed to meet the program's estimated total financial requirements, taking into account all revenues projected to be made available to the program and apportioning necessary costs equitably among participating classes of health care providers. For these purposes, the board shall:

(i) Retain the services of an impartial, professional actuary, with demonstrated experience in analysis of large group malpractice plans, to estimate the total financial requirements of the program for each fiscal year and to review and render written professional opinions as to financial plans proposed by the board. The actuary shall also assist in the development of alternative financing options and perform any other services requested by the board or the executive director. All reasonable fees and expenses for actuarial services shall be paid by the board. Any financial plan or modifications to a financial plan approved or proposed by the board pursuant to this section shall be submitted to and reviewed by the actuary and may not be finally approved and submitted to the Governor and to the Legislature without the actuary's written professional opinion that the plan may be reasonably expected to generate sufficient revenues to meet all estimated program and administrative costs, including incurred but not reported claims, for the fiscal year for which the plan is proposed. The actuary's opinion for any fiscal year shall include a requirement for establishment of a reserve fund;

(ii) Submit its final, approved five-year financial plan, after obtaining the necessary actuary's opinion, to the Governor and to the Legislature no later than January 1, preceding the fiscal year. The financial plan for a fiscal year becomes effective and shall be implemented by the executive director on July 1, of the fiscal year. In addition to each final, approved financial plan required under this section, the board shall also simultaneously submit an audited financial statement based on generally accepted accounting practices (GAAP) and which shall include allowances for incurred but not reported claims: Provided, That the financial statement and the accrual-based financial plan restatement shall not affect the approved financial plan. The provisions of chapter twenty-nine-a of this code shall not apply to the preparation, approval and implementation of the financial plans required by this section;

(iii) Submit to the Governor and the Legislature a prospective five-year financial plan beginning on January 1, 2003, and every year thereafter, for the programs established by the provisions of article twelve-b of this chapter. Factors that the board shall consider include, but shall not be limited to, the trends for the program and the industry; claims history, number and category of participants in each program; settlements and claims payments; and judicial results;

(iv) Obtain annually certification from participants that they have made a diligent search for comparable coverage in the voluntary insurance market and have been unable to obtain the same;

(J) Meet on at least a quarterly basis to review implementation of its current financial plan in light of the actual experience of the medical liability programs established in article twelve-b of this chapter. The board shall review actual costs incurred, any revised cost estimates provided by the actuary, expenditures and any other factors affecting the fiscal stability of the plan and may make any additional modifications to the plan necessary to ensure that the total financial requirements of these programs for the current fiscal year are met;

(K) To analyze the benefit of and necessity for excess verdict liability coverage;

(L) Consider purchasing reinsurance, in the amounts as it may, from time to time, determine is appropriate, and the cost thereof shall be considered to be an operating expense of the board;

(M) Make available to participants optional extended reporting coverage or tail coverage: Provided, That, at least five working days prior to offering such coverage to a participant or participants, the board shall notify the President of the Senate and the Speaker of the House of Delegates in writing of its intention to do so and such notice shall include the terms and conditions of the coverage proposed;

(N) Review and approve, reject or modify rules that are proposed by the executive director to implement, clarify or explain administration of the preferred medical liability program and the high-risk medical liability program. Notwithstanding any provisions in this code to the contrary, rules promulgated pursuant to this paragraph are not subject to the provisions of sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The board shall comply with the remaining provisions of article three and shall hold hearings or receive public comments before promulgating any proposed rule filed with the Secretary of State: Provided, That the initial rules proposed by the executive director and promulgated by the board shall become effective upon approval by the board notwithstanding any provision of this code;

(O) Enter into settlements and structured settlement agreements whenever appropriate. The policy may not require as a condition precedent to settlement or compromise of any claim the consent or acquiescence of the policyholder. The board may own or assign any annuity purchased by the board to a company licensed to do business in the state;

(P) Refuse to provide insurance coverage for individual physicians whose prior loss experience or current professional training and capability are such that the physician represents an unacceptable risk of loss if coverage is provided;

(Q) Terminate coverage for nonpayment of premiums upon written notice of the termination forwarded to the health care provider not less than thirty days prior to termination of coverage;

(R) Assign coverage or transfer insurance obligations and/or risks of existing or in-force contracts of insurance to a third-party medical professional liability insurance carrier with the comparable coverage conditions as determined by the board. Any transfer of obligation or risk shall effect a novation of the transferred contract of insurance and if the terms of the assumption reinsurance agreement extinguish all liability of the board and the State of West Virginia, such extinguishment shall be absolute as to any and all parties; and

(S) Meet and consult with and consider recommendations from the Medical Malpractice Advisory Panel established by the provisions of article twelve-b of this chapter.

(d) If, after September 1, 2002, the board has assigned coverages or transferred all insurance obligations and/or risks of existing or in-force contracts of insurance to a third-party medical professional liability insurance carrier, and the board otherwise has no covered participants, then the board shall not thereafter offer or provide professional liability insurance to any health care provider pursuant to the provisions of subsection (c) of this section or the provisions of article twelve-b of this chapter unless the Legislature adopts a concurrent resolution authorizing the board to reestablish medical liability insurance programs.

§29-12-5a. Liability insurance for county boards of education, their employees and members, the county superintendent of schools, and public charter schools electing to obtain coverage; written notice of coverage to insureds.

(a) In accordance with the provisions of this article, the State Board of Risk and Insurance Management shall provide appropriate professional or other liability insurance for all county boards of education, teachers, supervisory and administrative staff members, service personnel, county superintendents of schools, and school board members: Provided, That the Board of Risk and Insurance Management is not required to provide insurance for every property, activity, or responsibility of county boards of education, teachers, supervisory, and administrative staff members, service personnel, county superintendents of schools, and school board members.

(b) Insurance provided by the Board of Risk and Insurance Management pursuant to the provisions of subsection (a) of this section shall cover claims, demands, actions, suits, or judgments by reason of alleged negligence or other acts resulting in bodily injury or property damage to any person within or without any school building if, at the time of the alleged injury, the teacher, supervisor, administrator, service personnel employee, county superintendent, or school board member was acting in the discharge of his or her duties, within the scope of his or her office, position or employment, under the direction of the county board of education, or in an official capacity as a county superintendent or as a school board member.

(c) Insurance coverage provided by the Board of Risk and Insurance Management pursuant to subsection (a) of this section shall be in an amount to be determined by the State Board of Risk and Insurance Management, but in no event less than $1,250,000 for each occurrence. In addition, each county board of education shall purchase, through the Board of Risk and Insurance Management, excess coverage of at least $5 million for each occurrence. The cost of this excess coverage will be paid by the respective county boards of education. Any insurance purchased under this section shall be obtained from a company licensed to do business in this state.

(d) The insurance policy provided by the Board of Risk and Insurance Management pursuant to subsection (a) of this section shall include comprehensive coverage, personal injury coverage, malpractice coverage, corporal punishment coverage, legal liability coverage, as well as a provision for the payment of the cost of attorney’s fees in connection with any claim, demand, action, suit, or judgment arising from such alleged negligence or other act resulting in bodily injury under the conditions specified in this section.

(e) The county superintendent and other school personnel shall be defended by the county board or an insurer in the case of suit, unless the act or omission shall not have been within the course or scope of employment or official responsibility or was motivated by malicious or criminal intent.

(f) At least annually, beginning with the 2019-2020 school year, county boards shall provide written notice of insurance coverage to each of its insureds, including teachers, supervisors, administrators, service personnel employees, county superintendent, and school board members. The notice shall identify the coverages, monetary limits of insurance, and duty to defend for each occurrence as provided to insureds by the Board of Risk and Insurance Management under this section. The written notice may be sent via email, or via first-class mail to the insured’s last mailing address known to the county board. The written notice shall also include contact information for the Board of Risk and Insurance Management.

(g) The provisions of this section apply to public charter schools that have been authorized pursuant to §18-5G-1 et seq. of this code and have included in their charter contract entered into pursuant to §18-5G-7 of this code a determination to obtain insurance coverage from the Board of Risk and Insurance Management pursuant to this section. If a public charter school elects to obtain coverage pursuant to this section:

(1) Any provision in this section applicable to a county board also applies to a charter school governing board;

(2) Any provision in this section applicable to a school board member also applies to a member of a charter school governing board; and

(3) Any provision of this section applicable to teachers, supervisory and administrative staff members, and service personnel employed by a county board also applies to teachers, supervisory or administrative staff members, and service personnel employed by a public charter school.

(h) The amendments to this section during the 2019 First Extraordinary Session of the Legislature shall be effective for fiscal years beginning on or after July 1, 2019: Provided, That the amendment to subsection (c) of this section during the 2019 First Extraordinary Session of the Legislature shall be effective for fiscal years beginning on or after July 1, 2020.

§29-12-5b. Transit insurance.

In accordance with the terms and provisions of this article the state board of risk and management shall provide appropriate aid and assistance to the transit authorities in this state in the procurement of fleet liability insurance for all vehicles operated by any such authorities and any and all expense associated with the procurement of purchase of said insurance coverage shall be borne by the transit authorities.

§29-12-5c.

Repealed.

Acts, 2002 Reg. Sess., Ch. 170.

§29-12-6. Reports to be furnished board by state officers and departments; state records.

(a) It shall be the duty of every officer, department and employee of the state having custody or control of any state property, activities or responsibilities, as defined in section two of this article, to make a written report thereof to the board, on forms prepared and prescribed by it, briefly describing said property, activities or responsibilities, showing the nature, location and estimated fair market value of potential liability thereof and stating whether such property, activities or responsibilities are covered by insurance and, if insured, the nature, amount and contract expiration date of such insurance and the name and address of the insuring company or companies. Such reports shall be made annually on or before May 1 and separate reports shall be made on newly acquired state property from time to time within thirty days next following the acquisition thereof. When any such insured state property is sold, destroyed or otherwise disposed of, the officer, department or employee of the state having had the custody or control thereof shall make a written report of such sale, destruction or other disposition of such property to the board within thirty days next following the date of sale, destruction or other disposition thereof.

(b) The board shall assemble and organize all pertinent information and data received and obtained by it on new and continuing state property, activities and responsibilities within the insurance coverage herein contemplated and shall compile and currently maintain a summary record thereon, in such form and detail as may be found practicable, as basis for insurance services on all such state property, activities and responsibilities.

§29-12-7. Placement of insurance on state property, activities and responsibilities.

(a) No officer, department or employee of the state having control or custody of any state property, or being in charge of any state activities, or being charged with any state responsibilities as herein contemplated, shall pay out any state money for the purpose of insurance against loss, damage or liability to any such state property or on account of any such state activity or responsibility or incur any obligation or indebtedness against the state for such insurance, except (1) upon the board's prior approval and placement of such insurance coverage and (2) its subsequent approval of invoices and charges therefor.

(b) All state insurance shall be placed only with solvent insurance companies licensed by the Insurance Commissioner to transact insurance in West Virginia.

(c) All state insurance shall be placed only through agents duly licensed by the Insurance Commissioner of West Virginia and no more than five percent of the total premium volume of state insurance shall be placed through any one agent or agency. For the purpose of this paragraph, agent or agency shall include all employees, relatives, partners or affiliates out of the agency with whom such insurance is placed. In addition thereto no more than fifteen percent of the total premium volume of state insurance shall be placed in agencies in any one county.

(d) No insurance shall be placed with any member of the board, the state Insurance Commissioner, official, officer or employee of the State of West Virginia, member of the Legislature, member or officer of any state or county political party executive committee, nor with the spouse, parent or child of any such person, nor with any corporation, any stockholder of which falls within the classes herein enumerated.

§29-12-8. Powers, duties, etc., of department of purchases pertaining to state insurance transferred to board.

On the effective date of this article, all powers, duties and functions vested in the department of purchases relating to insurance on state properties, activities and responsibilities and all records and equipment relating thereto shall be transferred by the department of purchases to the state board of insurance.

§29-12-9. Penalties for violation of article.

Any person placing or aiding, abetting, or conspiring to place state insurance in violation of any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof shall be fined not to exceed $1,000 or imprisoned for a period not to exceed six months, or may be punished by both such fine and imprisonment.

§29-12-10. Repeal of inconsistent laws.

All laws or parts of laws inconsistent with the provisions of this article are hereby repealed, except in cases where the plain meaning and context hereof otherwise provide for coordinate interpretation and application of the provision of this article with any other laws.

§29-12-11. Interpretation and purpose; Constitutionality.

The provisions of this article are considered remedial and shall be liberally construed and interpreted so as to effect and accomplish the general purposes and objectives hereof. In the event any part or provision of the article be held to be unconstitutional by any court of competent jurisdiction, such holding and decision of the court shall not affect the validity and Constitutionality of the remaining parts and provisions of the article.

§29-12-12.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-12-13. Premium tax liability.

Notwithstanding any other provision of this code to the contrary, the amount of any gross direct premiums attributable to a policy or contract of insurance entered into with the board of Risk and Insurance Management shall be separately reported on the annual financial statement of the insurer. These gross direct premiums so reported may not be subject to the tax imposed on gross direct premiums pursuant to article three, chapter thirty-three of this code. The provisions of this section shall be effective upon passage and shall apply to any amount of premium tax owed and not yet paid upon the effective date of this section. When any spending unit makes payment to the board of Risk and Insurance Management for payment of premiums attributable to a policy or contract of insurance after the effective date of this section, an amount equal to the amount of gross premium tax attributable to the amount of the premium shall be paid to the board: Provided, That these amounts shall be deposited in a special revenue account hereby created known as the "Premium Tax Savings Fund". Expenditures from the fund shall not be made from collections but shall only be made in accordance with appropriation by the Legislature.

§29-12-14. Promulgation of rules.

The Board of Risk and Insurance Management is authorized to propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, setting minimum contract terms for entities participating in insurance programs and mandatory waiting periods for reentry into insurance programs for entities which have terminated coverage through the board.

§29-12A-1. Short title; purposes.

This article shall be known and may be cited as "The Governmental Tort Claims and Insurance Reform Act."

Its purposes are to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability.

§29-12A-2. Legislative findings.

The Legislature finds and declares that the political subdivisions of this state are unable to procure adequate liability insurance coverage at a reasonable cost due to: The high cost in defending such claims, the risk of liability beyond the affordable coverage, and the inability of political subdivisions to raise sufficient revenues for the procurement of such coverage without reducing the quantity and quality of traditional governmental services. Therefore, it is necessary to establish certain immunities and limitations with regard to the liability of political subdivisions and their employees, to regulate the insurance industry providing liability insurance to them, and thereby permit such political subdivisions to provide necessary and needed governmental services to its citizens within the limits of their available revenues.

§29-12A-3. Definitions.

As used in this article:

(a) "Employee" means an officer, agent, employee, or servant, whether compensated or not, whether full-time or not, who is authorized to act and is acting with the scope of his or her employment for a political subdivision. "Employee" includes any elected or appointed official of a political subdivision. "Employee" does not include an independent contractor of a political subdivision.

(b) "Municipality" means any incorporated city, town or village and all institutions, agencies or instrumentalities of a municipality.

(c) "Political subdivision" means any county commission, municipality and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities or towns; a combined city- county health department created pursuant to article two, chapter sixteen of this code; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function: Provided, That hospitals of a political subdivision and their employees are expressly excluded from the provisions of this article.

(d) "Scope of employment" means performance by an employee acting in good faith within the duties of his or her office or employment or tasks lawfully assigned by a competent authority but does not include corruption or fraud.

(e) "State" means the State of West Virginia, including, but not limited to, the Legislature, the Supreme Court of Appeals, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, colleges, and universities, institutions, and other instrumentalities of the State of West Virginia. "State" does not include political subdivisions.

§29-12A-4. Governmental and proprietary functions of political subdivisions; liability for damages.

(a) The distinction existing between governmental functions and proprietary functions of political subdivisions is not affected by the provisions of this article; however, the provisions of this article shall apply to both governmental and proprietary functions.

(b) (1) Except as provided in subsection (c) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function: Provided, That this article shall not restrict the availability of mandamus, injunction, prohibition, and other extraordinary remedies.

(2) Subject to statutory limitations upon their venue and jurisdiction, the circuit courts have jurisdiction to hear and determine civil actions governed by or brought pursuant to this article.

(c) Subject to sections five and six of this article, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:

(1) Except as otherwise provided in this article, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any vehicle by their employees when the employees are engaged within the scope of their employment and authority.

(2) Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.

(3) Political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, or free from nuisance, except that it is a full defense to such liability, when a bridge within a municipality is involved, that the municipality does not have the responsibility for maintain or inspecting the bridge.

(4) Political subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used by such political subdivisions, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility.

(5) In addition to the circumstances described in subsection (c)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a provision of this code. Liability shall not be construed to exist under another section of this code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.

§29-12A-5. Immunities from liability.

(a) A political subdivision is immune from liability if a loss or claim results from:

(1) Legislative or quasi-legislative functions;

(2) Judicial, quasi-judicial or prosecutorial functions;

(3) Execution or enforcement of the lawful orders of any court;

(4) Adoption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;

(5) Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection;

(6) Snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of a political subdivision;

(7) Natural conditions of unimproved property of the political subdivision;

(8) Assessment or collection of taxes lawfully imposed or special assessments, license or registration fees or other fees or charges imposed by law;

(9) Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority;

(10) Inspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety;

(11) Any claim covered by any worker's compensation law or any employer's liability law;

(12) Misrepresentation, if unintentional;

(13) Any court-ordered or administratively approved work release or treatment or rehabilitation program;

(14) Provision, equipping, lawful operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner;

(15) Any claim or action based on the theory of manufacturer's products liability or breach of warranty or merchantability or fitness for a specific purpose, either expressed or implied;

(16) The operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision; or

(17) The issuance of revenue bonds or the refusal to issue revenue bonds.

(b) An employee of a political subdivision is immune from liability unless one of the following applies;

(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;

(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or

(3) Liability is expressly imposed upon the employee by a provision of this code.

(c) The immunity conferred upon an employee by subsection (b) of this section does not affect or limit any liability of a political subdivision for an act or omission of the employee.

§29-12A-6. Limitation of actions; specification of amount of damages not allowed.

(a) An action against a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function, except as provided in subsection (b) of this section, shall be brought within two years after the cause of action arose or after the injury, death or loss was discovered or reasonably should have been discovered, whichever last occurs or within any applicable shorter period of time for bringing the action provided by this code. This section applies to actions brought against political subdivisions by all persons, governmental entities, and the state.

(b) An action against a political subdivision to recover damages for injury, death, or loss to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years after the cause of action arose or after the injury, death of loss was discovered or reasonably should have been discovered, whichever last occurs, or prior to the minor's twelfth birthday, whichever provides the longer period.

(c) The periods of limitations set forth in this section shall be tolled for any period during which the political subdivision or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.

(d) In the complaint filed in a civil action against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission of such political subdivision or employee, whether filed in an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation, the complainant shall include a demand for a judgment for the damages that the judge in a nonjury trial or the jury in a jury trial finds that the complainant is entitled to be awarded, but shall not specify in the demand any monetary amount for damages sought.

§29-12A-7. Punitive damages not allowed; limitation on noneconomic loss; joint and several liability.

Notwithstanding any other provisions of this code or rules of a court to the contrary, in an action against a political subdivision or its employee to recover damages for injury, death, or loss to persons or property for injury, death, or loss to persons or property caused by an act or omission of such political subdivision or employee:

(a) In any civil action involving a political subdivision or any of its employees as a party defendant, an award of punitive or exemplary damages against such political subdivision is prohibited.

(b) There shall not be any limitation on compensatory damages that represent the economic loss of the person who is awarded the damages. However, damages awarded that arise from the same cause of action, transaction or occurrence, or series of transactions or occurrences that represent noneconomic loss shall not exceed $500,000 in favor of any one person. The limitation on damages that do not represent the economic loss of the person who is awarded the damages provided in this subsection does not apply to court costs that are awarded to a plaintiff or to interest on a judgment rendered in favor of a plaintiff in an action against a political subdivision or its employees.

(c) In the trial of an action covered by the provisions of this article involving multiple defendants, the jury shall be required to report its findings to the court on a form provided by the court which contains each of the possible verdicts as determined by the court.

(d) In every such action, the court shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court shall enter judgment of joint and several liability against every defendant who bears twenty-five percent or more of the negligence attributable to all defendants. The court shall enter judgment of several, but not joint, liability against and among all defendants who bear less than twenty-five percent of the negligence attributable to all defendants.

(e) Each defendant against whom a judgment of joint and several liability is entered in an action pursuant to subsection (d) of this section is liable to each plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of negligence attributable to him A right of contribution exists in favor of each defendant who has paid to a plaintiff more than the percentage of the dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. The total amount of recovery for contribution is limited to a the amount paid by the defendant to a plaintiff in excess of the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him No right of contribution exists against any defendant who entered into a good faith settlement with the plaintiff prior to the jury's report of its findings to the court or the court's findings as to total dollar amount awarded as damages.

(f) Where a right of contribution exists in an action pursuant to subsection (e) of this section, the findings of the court or jury as to the percentage of negligence and liability of the several defendants to the plaintiff shall be binding among such defendants as determining their rights of contribution.

§29-12A-8. Suits.

Any person having a claim against a political subdivision within the scope of this article may sue such political subdivision for any appropriate relief including the award of money damages within the liability limitations established in section seven of this article.

§29-12A-9. Settlement or defense of suit; effect of liability insurance.

(a) If a policy or contract of liability insurance covering a political subdivision or its employees is applicable, the terms of the policy govern the rights and obligations of the political subdivision and the insurer with respect to the investigation, settlement, payment and defense of suits against the political subdivision, or its employees, covered by the policy. The insurer may not enter into a settlement for an amount which exceeds the insurance coverage.

(b) A political subdivision, or its employees, are not liable for any costs, judgments or settlements paid through an applicable contract or policy of insurance.

(c) A political subdivision has the right of indemnity against the insurer issuing any applicable contract or policy of insurance to the monetary limit of the contract or policy of insurance.

§29-12A-10. Enforcement of judgment.

(a) Real or personal property, and moneys, accounts, deposits, or investments of a political subdivision are not subject to execution, judicial sale, garnishment, or attachment to satisfy a judgment rendered against a political subdivision in a civil action to recover damages for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees.

(b) Such judgments shall be paid from funds of the political subdivisions that have been appropriated for that purpose. However, if sufficient funds are not currently appropriated for the payment of judgments, the fiscal officer of a political subdivision shall certify the amount of any unpaid judgments to the taxing authority of the political subdivision for inclusion in the next succeeding budget and annual appropriation measure and payment in the next succeeding fiscal year.

(c) If the judgment is obtained against a political subdivision that has procured a contract or policy of liability or indemnity insurance protection, the holder of the judgment may use the methods of collecting the judgment which are provided by the policy or contract or law to the extent of the limits of coverage provided.

§29-12A-11. Defense and indemnification of employees; settlement.

(a) (1) Except as otherwise provided in this section, a political subdivision shall provide for the defense of an employee, in any state or federal court, in any civil action or proceeding to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission of the employee if the act or omission occurred or is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities. Amounts expended by a political subdivision in the defense of its employees shall be from funds appropriated for this purpose or pursuant to the contractual agreement between the insurer and the political subdivision. The duty to provide for the defense of an employee specified in this subsection does not apply in a civil action or proceeding that is commenced by or on behalf of a political subdivision.

(2) Except as otherwise provided in this section, a political subdivision shall indemnify and hold harmless an employee in the amount of any judgment that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to persons or property caused by an act or omission of such employee, if at the time of the act or omission the employee was acting in good faith and within the scope of his employment or official responsibilities.

(b) (1) A political subdivision may enter into a consent judgment or settlement and may secure releases from liability for itself or an employee, with respect to any claim for injury, death, or loss to persons or property caused by an act or omission of such political subdivision or employee.

(2) No action or appeal of any kind shall be brought by any person, including any employee or a taxpayer, with respect to the decision of a political subdivision pursuant to subsection (b)(1) of this section whether to enter into a consent judgment or settlement or to secure releases, or concerning the amount and circumstances of a consent judgment or settlement. Amounts expended for any settlement shall be from funds appropriated for this purpose or pursuant to the contractual agreement between the insurer and the political subdivision.

(c) If a political subdivision refuses to provide an employee with a defense in a civil action or proceeding as described in subsection (a)(1) of this section, the employee may file, in the circuit court of the county in which the political subdivision is located, an action seeking a determination as to the appropriateness of the refusal of the political subdivision to provide him or her with a defense under that subsection.

§29-12A-12. Recovery of payments from employees.

A political subdivision has the right to recover from an employee for any claim or action under this article, or any other claim or action, any payments made by it for any judgment or settlement, or portion thereof, and costs or fees by or on behalf of an employee's defense if it is shown that the conduct or the employee which gave rise to the claim or action was outside the scope of his employment or if the employee fails to cooperate in good faith in the defense of the claim or action. A judgment or settlement in an action or claim under this article constitutes a complete bar to any action by a claimant against an employee whose conduct gave rise to the claim resulting in such judgment or settlement.

§29-12A-13. Venue; parties; real party in interest; service of process.

(a) Actions against all political subdivisions within the scope of this article shall be brought in the county in which the situs of the political subdivision is located or in the county in which the cause of action arose.

(b) Suits instituted pursuant to the provisions of this article shall name as defendant the political subdivision against which liability is sought to be established. In no instance may an employee of a political subdivision acting within the scope of his employment be named as defendant.

(c) All actions filed against a political subdivision shall be filed in the name of the real party or parties in interest and in no event may any claim be presented or recovery be had under the right of subrogation.

(d) In suits against political subdivisions, the complaint and summons shall be served in the manner prescribed by law for the rules of civil procedure.

§29-12A-14. Application of West Virginia laws and statutes and rules of procedure.

The laws and statutes of this state and the rules of civil procedure, as promulgated and adopted by the Supreme Court of Appeals, insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this article, apply to and govern all actions brought under the provisions of this article.

§29-12A-15. Exempt claim.

This article does not apply to any claim against any political subdivision or its employees arising before the effective date of this article. Any such claim may be presented and enforced to the same extent and subject to the same procedures and restrictions as if this article had not been adopted.

§29-12A-16. Procurement of liability insurance and self-insurance.

(a) A political subdivision may use public funds to secure insurance with respect to its potential liability and that of its employees for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees, including insurance coverage procured through the State Board of Risk and Insurance Management. The insurance may be at the limits for the circumstances, and subject to the terms and conditions that are determined by the political subdivision in its discretion.

The insurance may be for the period that is set forth in specifications for competitive bids or, when competitive bidding is not required, for the period that is mutually agreed upon by the political subdivision and insurance company. The period does not have to be, but can be, limited to the fiscal cycle under which the political subdivision is funded and operates.

(b)(1) Regardless of whether a political subdivision procures a policy or policies of liability insurance pursuant to subsection (a) of this section or otherwise:

 (A) Any political subdivision may establish and maintain a self-insurance program relative to its potential liability and that of its employees for damages in civil actions for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees; or

 (B) Any group of two or more political subdivisions may establish and maintain a self-insurance pool relative to their collective potential liability and that of their collective employees for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees.

(2) Beginning July 1, 2010, any group of two or more political subdivisions may, upon approval of the Insurance Commissioner, establish and maintain a self-insurance pool to insure their workers' compensation risks: Provided, That political subdivisions may not make application to the Insurance Commissioner to operate a risk pool until rules promulgated pursuant to subsection (g) of this section regulating such programs have been made effective.

(3) If it so chooses, the political subdivision or group of political subdivisions may contract with any person, any licensed West Virginia insurance agent, other political subdivision, municipal association, county association or regional council of governments for purposes of the administration of the program or pool.

(c) Political subdivisions that have established self-insurance programs relative to their potential liability and that of their employees, as described in paragraph (A), subdivision (1), subsection (b) of this section, may mutually agree that their self-insurance programs may be jointly administered in a specified manner.

(d) The purchase of liability insurance, or the establishment and maintenance of a self-insurance program, by a political subdivision does not constitute a waiver of any immunity it may have pursuant to this article or any defense of the political subdivision or its employees.

(e) The authorization for political subdivisions to secure insurance and to establish and maintain self-insurance programs and pools, as set out in subsections (a) and (b) in this section, are in addition to any other authority to secure insurance or to establish and maintain self-insurance that is granted pursuant to this code or the Constitution of this state, and they are not in derogation of any other authorization.

(f) An insurance agent licensed in West Virginia is authorized to establish or write policies for a self-insurance program or pool for political subdivisions, pursuant to the provisions of this section.

(g) The Insurance Commissioner shall propose rules for legislative approval, pursuant to the provisions of chapter twenty-nine-a of this code, setting forth the criteria for establishing and maintaining self-insurance programs and pools for political subdivisions, and may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.

§29-12A-17. Liability insurance rates; rate filings; cancellations; group insurance.

(a) Liability insurance coverage for political subdivisions in effect on the effective date of this article shall not be reduced without the written consent of the insured and the policy premiums for such coverage shall not be increased by more than ten percent per annum. Such coverage shall not be cancelled except for:

(1) Failure to make premium payments in accordance with the policy requirements;

(2) Fraud or substantial misrepresentation by the insured in the procurement of the policy; or

(3) Substantial increase in the risk of loss to which the insurer is exposed under the policy.

(b) Each casualty insurance rate filing relating to liability insurance for political subdivisions shall be accompanied by such information as the Insurance Commissioner requires to determine claims payouts, premium income, investment income, loss reserves, federal and state credits, administrative and operating expenses, profits, losses, and such other information deemed necessary by the commissioner to determine the profitability of such insurance business engaged in by the company. Based upon such information, the commissioner may approve or disapprove an increase in premiums charged to the political subdivisions for such coverage or may require that such premiums charged by decreased. The commissioner shall have authority to disapprove any casualty insurance rate filing which includes such coverage to political subdivisions for failure to provide the information prescribed herein.

(c) Any two or more political subdivisions shall have authority to form an organization or association for the purpose of purchasing casualty insurance on a group or pooling basis.

Any insurer licensed to transact casualty insurance in this state may issue group casualty insurance policies to any organization, association or pool which is organized and maintained under this section.

(d) The Insurance Commissioner shall promulgate legislative rules or regulations pursuant to chapter twenty-nine-a of this code setting forth guidelines relating to rate filings, rates and cancellations with respect to insurance companies transacting policies of casualty insurance with political subdivisions and relating to establishment of associations or pools for the purchase of group insurance and the setting of group rates.

§29-12A-18. Applicability.

This article does not apply to, and shall not be construed to apply to, the following:

(a) Civil actions that seek to recover damages from a political subdivision or any of its employees for contractual liability;

(b) Civil actions by an employee, or the collective bargaining representative of an employee, against his or her political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision;

(c) Civil actions by an employee of a political subdivision against the political subdivision relative to wages, hours, conditions, or other terms of his or her employment;

(d) Civil actions by sureties, and the rights of sureties, under fidelity or surety bonds;

(e) Civil claims based upon alleged violations of the Constitution or statutes of the United States except that the provisions of section eleven of this article shall apply to such claims or related civil actions.

§29-12B-1. Short title.

This article may be cited as the "West Virginia Health Care Provider Professional Liability Insurance Availability Act."

§29-12B-2. Legislative findings.

The Legislature finds and declares that there is a need for the State of West Virginia to assist in making professional liability insurance available for certain necessary health care providers in West Virginia to assure that quality medical care is available for the citizens of the state.

§29-12B-3. Definitions.

As used in this article, the following terms have the meanings set forth herein:

(a) "Board" means the state Board of Risk and Insurance Management.

(b) "Health care provider" means:

(1) A person licensed by the West Virginia Board of Medicine to practice medicine in this state;

(2) A person licensed by the West Virginia board of osteopathy to practice medicine in this state;

(3) A podiatrist licensed by the West Virginia Board of Medicine;

(4) An optometrist licensed by the West Virginia board of optometry;

(5) A pharmacist licensed by the West Virginia Board of Pharmacy;

(6) A registered nurse holding an advanced practice announcement from the West Virginia board of examiners for registered professional nurses;

(7) A physician's assistant licensed by either the West Virginia Board of Medicine or the West Virginia board of osteopathy;

(8) A dentist licensed by the West Virginia board of dental examiners;

(9) A physical therapist licensed by the West Virginia board of physical therapy;

(10) A chiropractor licensed by the West Virginia board of chiropractic;

(11) A professional limited liability company or medical corporation certified by the state Board of Medicine;

(12) An association, partnership or other entity organized for the purpose of rendering professional services by persons who are health care providers;

(13) A hospital, medical clinic, psychiatric hospital or other medical facility authorized by law to provide professional medical services; and

(14) Such other health care provider as the board may from time to time approve, and for whom an adequate rate can be established.

"Health care provider" does not include any provider of professional medical services that has medical malpractice insurance pursuant to article twelve of this chapter.

(b) "Sexual acts" means that sexual conduct which constitutes a criminal or tortious act under the laws of West Virginia.

(c) "Prior acts" coverage means coverage for claims arising out of the providing of medical services, including medical treatment, which are first reported to the board during the effective policy period, but which occurred on or after the retroactive date reported in the policy declarations.

(d) "High risk" means the probability of loss is greater than average based on criteria specified in this article and established by the board.

(e)"Retroactive date" means the date designated in the policy declarations, before which coverage is not applicable.

(f) "Tail coverage" or "extended reporting coverage" is coverage that protects the health care provider against all claims arising from professional services performed while the claims-made policy was in effect and included in the policy but reported after the termination of the policy.

§29-12B-4.

Repealed.

Acts, 2015 Reg. Sess., Ch. 53.

§29-12B-5.

Repealed.

Acts, 2015 Reg. Sess., Ch. 53.

§29-12B-6. Health care provider professional liability insurance programs.

(a) There is hereby established through the board of Risk and Insurance Management optional insurance for health care providers consisting of a preferred professional liability insurance program and a high risk professional liability insurance program.

(b) Each of the programs described in subsection (a) of this section shall provide claims-made coverage for any covered act or omission resulting in injury or death arising out of medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code.

(c) Each of the programs described in subsection (a) of this section shall offer optional prior acts coverage from and after a retroactive date established by the policy declarations. The premium for prior acts coverage may be based upon a five-year maturity schedule depending on the years of prior acts exposure, as more specifically set forth in a written rating manual approved by the board.

(d) Each of the programs described in subsection (a) of this section shall further provide an option to purchase an extended reporting endorsement or tail coverage.

(e) Each of the programs described in subsection (a) of this section shall offer limits for each health care provider in the amount of $1 million per claim, including repeated exposure to the same event or series of events, and all derivative claims, and $3 million in the annual aggregate. Health care providers have the option to purchase higher limits of up to $2 million per claim, including repeated exposure to the same event or series of events, and all derivative claims, and up to $4 million in the annual aggregate. In addition, hospitals covered by the plan shall have available limits of $3 million per claim, including repeated exposure to the same event or series of events, and all derivative claims, and $5 million in the annual aggregate. Installment payment plans as established in the rating manual shall be available to all participants.

(f) Each of the programs described in subsection (a) of this section shall cover any act or omission resulting in injury or death arising out of medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code. The board shall exclude from coverage sexual acts as defined in subdivision (e), section three of this article, and shall have the authority to exclude other acts or omission from coverage.

(g) Each of the programs described in subsection (a) of this section shall apply to damages, except punitive damages, for medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code.

(h) The board may, but is not required, to obtain excess verdict liability coverage for the programs described in subsection (a) of this section.

(i) Each of the programs shall be liable to the extent of the limits purchased by the health care provider as set forth in subsection (e) of this section. In the event that a claimant and a health care provider are willing to settle within those limits purchased by the health care provider, but the board refuses or declines to settle, and the ultimate verdict is in excess of the purchased limits, the board shall not be liable for the portion of the verdict in excess of the coverage provided in subsection (e) of this section unless the board acts in bad faith, with actual malice, in declining or refusing to settle: Provided, That if the board has in effect applicable excess verdict liability insurance, the health care provider shall not be required to prove that the board acted with actual malice in declining or refusing to settle in order to be indemnified for that portion of the verdict in excess of the limits of the purchased policy and within the limits of the excess liability coverage. Notwithstanding any provision of this code to the contrary, the board shall not be liable for any verdict in excess of the combined limit of the purchased policy and any applicable excess liability coverage unless the board acts in bad faith with actual malice.

(j) Rates for each of the programs described in subsection (a) of this section may not be excessive, inadequate or unfairly discriminatory: Provided, That the rates charged for the preferred professional liability insurance program shall not be less than the highest approved comparable base rate for a licensed carrier providing five percent of the malpractice insurance coverage in this state for the previous calendar year on file with the Insurance Commissioner: Provided, however, That if there is only one licensed carrier providing five percent or more of the malpractice insurance coverage in the state offering comparable coverage, the board shall have discretion to disregard the approved comparable base rate of the licensed carrier.

(k) The premiums for each of the programs described in subsection (a) of this section are subject to premium taxes imposed by article three, chapter thirty-three of this code.

(l) Nothing in this article shall be construed to preclude a health care provider from obtaining professional liability insurance coverage for claims in excess of the coverage made available by the provisions of this article.

(m) General liability coverage that may be required by a health care provider may be offered as determined by the board.

(n) The board may provide coverage for the run out of, and tail coverage for, any active policy issued pursuant to this article which is not transferred to the physician's mutual insurance company in accordance with section nine, article twenty-f, chapter thirty-three of this code. The board may permit such policy holders to finance, with interest, the tail coverage premium payments therefore, up to a maximum finance period of five years, on such terms as the board may set.

§29-12B-7. Eligibility criteria for participation in health care provider professional liability insurance programs.

(a) Only those health care providers unable to obtain medical professional liability insurance because it is not available through the voluntary insurance market from insurers licensed to transact insurance in West Virginia at rates approved by the commissioner are eligible to obtain coverage pursuant to the provisions of this article: Provided, That any health care provider who can obtain medical professional liability insurance only pursuant to a "consent to" or "guide A" rate agreement is eligible to obtain coverage. Any health care provider who has medical professional liability insurance pursuant to the provisions of article twelve, chapter twenty-nine of this code is not eligible to obtain insurance pursuant to the provisions of this article.

(b) In addition to other eligibility criteria for participation in the health care provider professional liability insurance program established by the provisions of this article or criteria imposed by the board, every participant in the programs shall:

(1) Maintain a policy of not excluding patients whose health care coverage is provided through the West Virginia public employees insurance plan, the West Virginia Children's Health Insurance Program, West Virginia Medicaid or the West Virginia worker's compensation fund based solely on the fact that the person's health care coverage is provided by any of the aforementioned entities;

(2) Annually participate, at his or her own expense, in a risk management program approved by the board relating to risk management; and

(3) Agree in writing to the board's authority to assign his or her policy, individually or collectively, to a third party if the third party coverage is comparable, as determined by the board.

§29-12B-8. Preferred professional liability insurance program.

(a) Eligibility to participate in the preferred professional liability insurance program shall be determined by underwriting criteria approved by the board and set forth in a written underwriting manual, and shall be subject to rates approved by the board and set forth in a written rating manual. Participation in the preferred professional liability insurance program shall not be limited based on geographic location or specialty, but may be limited based upon indemnity loss history, number of patient exposures, refusal to participate in risk management/loss control programs or any other grounds the board may approve, as set forth in a written underwriting manual. The board shall periodically review its underwriting manual and make any changes it considers necessary or appropriate.

(b) Qualification for participation in the preferred professional liability insurance program shall be reviewed each year, and any participant may be transferred to the high risk professional liability insurance program, as set forth in the written underwriting manual approved by the board.

§29-12B-9. High risk professional liability insurance program.

(a) The rate charged participants in the high risk professional liability insurance program may be higher than those established and approved by the board for participants in the preferred professional insurance program as set forth in a written rating manual. Risks may be refused coverage under criteria approved by the board, as set forth in its underwriting manual. The Board of Risk and Insurance Management shall periodically review its underwriting manual and make any changes it deems necessary or appropriate.

(b) If a majority of the board determines that a health care provider covered by one of the programs created by this article presents an extreme risk because of the number of claims filed against him or her or the outcome of such claims, said board may, after notice and a hearing in accordance with the provisions of the West Virginia administrative procedures act, chapter twenty-nine-a of this code, terminate coverage for all claims against that health care provider. Coverage shall terminate thirty days after the board's decision. Upon termination of coverage under this subsection, the board shall notify the licensing or disciplinary board having jurisdiction over the health care provider of said provider's name and of the reasons for termination of the coverage.

(c) The board may terminate coverage for a health care provider's failure to pay premiums by providing written notice of such termination by first-class mail no less than thirty days prior to termination of coverage.

§29-12B-10. Deposit, expenditure and investment of premiums.

(a) The premiums charged and collected by the board under this article shall be deposited into a special revenue account hereby created in the state Treasury known as the "Medical Liability Fund", and shall not be part of the general revenues of the state. Disbursements from the special revenue fund shall be upon requisition of the executive director and in accordance with the provisions of chapter five-a of this code. Disbursements shall pay operating expenses of the board attributed to these programs and the board's share of any judgments or settlements of medical malpractice claims. Funds shall be invested with the consolidated fund managed by the West Virginia Investment Management Board and interest earned shall be used for purposes of this article.

(b) Start-up operating expenses of the medical liability fund, not to exceed $500,000, may be transferred to the medical liability fund pursuant to an appropriation by the Legislature from any special revenue funds available. The medical liability fund shall reimburse the board within twenty-four months of the date of the transfer.

(c) For purposes of establishing a pool from which settlements and judgments may be paid, notwithstanding any other provision of this code to the contrary, a portion of the initial capitalization of the pool may be provided through a transfer of no greater than $4,000,000 from the State Special Insurance Fund established in section five, article twelve of this chapter. All funds transferred pursuant to this section are to be repaid by transfer from the Medical Liability Fund to the State Special Insurance Fund, together with interest that would have accrued in the State Special Insurance Fund, by July 1, 2006. Funds are to be transferred only as needed for expenditures from the Medical Liability Fund created in this section. The Treasurer shall effect these transfers pursuant to this section upon written request of the Director of the Board of Risk and Insurance Management.

(d) On July 1, 2016, all funds in the Medical Liability Fund, including all funds currently invested pursuant to the terms of subsection (a) of this section, shall be transferred to the West Virginia Patient Injury Compensation Fund established by section one, article twelve-d of this chapter. Thereafter, the Medical Liability Fund established pursuant to this section shall be closed.

§29-12B-11. Payments for settlement or judgment.

All payments made in satisfaction of any settlement or judgment shall be in accordance with the procedures established by the board. No settlement or judgment may be paid until there is recorded in the office of the executive director: (1) A certified copy of a final judgment against a health care provider insured by either of the medical liability programs created pursuant to this article, or a certified copy of an order approving settlement in a summary proceeding; or (2) appropriate settlement documentation to include a written settlement determination issued by or on behalf of the board.

§29-12B-12. Information exempt from disclosure.

Any specific claim reserve information is exempt from public disclosure under the freedom of information act set forth in article one, chapter twenty-nine-b of this code.

§29-12B-13. Appeal bond.

In the event of a judgment against a health care provider from which the health care provider or the board wishes to appeal, the board is not liable for more than its share of the coverage and, as to that portion, a supersedeas bond signed by the board's administrator or his or her designee, shall suffice without further surety or other security.

§29-12B-14. Effective date and termination of authority.

 Policies written under this article may have an effective date retroactive to the effective date of this article. Except as provided in subsection (n), section six of this article, the authority of the board of risk and insurance management to issue medical liability policies under this article shall cease upon the board's transfer, in accordance with section nine, article twenty-f, chapter thirty-three of this code, of assets, obligations and liabilities to the physicians' mutual insurance company created pursuant to said article, or upon July 1, 2004, whichever occurs first. The board shall continue to administer any existing policy of insurance which was issued pursuant to this article, but was not transferred to the physician's mutual insurance company, until the policy expires. Upon the expiration of the policy, the board shall make tail coverage available at an appropriate premium rate to be determined by the board. The board shall continue to administer any tail coverage so provided. On the thirtieth day of January each year, the board shall report to the legislature's joint committee on government and finance the amount of any unfunded liability associated with the run out and tail coverage provided by this section.

§29-12C-1

Repealed.

Acts, 2016 Reg. Sess., Ch. 40

§29-12C-2

Repealed.

Acts, 2016 Reg. Sess., Ch. 40

§29-12D-1. Creation of the Patient Injury Compensation Fund; purpose; initial funding of Patient Injury Compensation Fund.

(a) There is created the West Virginia Patient Injury Compensation Fund, for the purpose of providing fair and reasonable compensation to claimants in medical malpractice actions for any portion of economic damages awarded that is uncollectible as a result of limitations on economic damage awards for trauma care, or as a result of the operation of the joint and several liability principles and standards, set forth in article seven-b, chapter fifty-five of this code. The fund shall consist of all contributions, revenues and moneys which may be paid into the fund, from time to time, by the State of West Virginia or from any other source whatsoever, together with any and all interest, earnings, dividends, distributions, moneys or revenues of any nature whatsoever accruing to the fund.

(b) Initial funding for the fund shall be provided as follows: during fiscal year 2005, $2,200,000 of the revenues that would otherwise be transferred to the tobacco account established in subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund; during fiscal year 2006, $2,200,000 of the revenues that would otherwise be transferred to the tobacco account established in subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund; and during fiscal year 2007, $2,200,000 of the revenues that would otherwise be transferred to the tobacco account established in subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund.

(2) Beginning fiscal year 2008, if and to the extent additional funding for the fund is required, from time to time, to maintain the actuarial soundness of the fund, the additional funding may be provided by further act of the Legislature, either from the revenue stream identified in this subsection or otherwise. Payments to the tobacco fund shall be extended until the tobacco fund is repaid in full.

(c) The fund is not and shall not be considered a defendant in any civil action arising under article seven-b, chapter fifty-five of this code.

(d) The fund is not and shall not be considered an insurance company or insurer for any purpose under this code.

(e) Legal fees of claimants may not be recovered directly from the fund.

(f) The fund shall not provide compensation to claimants who file a claim with the Patient Injury Compensation Fund on or after July 1, 2016.

§29-12D-1a. Additional funding for Patient Injury Compensation Fund; assessment on licensed physicians; assessment on hospitals; assessment on certain awards.

(a) Annual assessment on licensed physicians. —

(1) The Board of Medicine and the Board of Osteopathic Medicine shall collect a biennial assessment in the amount of $125 from every physician licensed by each board for the privilege of practicing medicine in this state. The assessment is to be imposed and collected on forms prescribed by each licensing board. The assessment shall be collected as part of licensure or license renewal beginning July 1, 2016, for licenses issued or renewed through December 31, 2021: Provided, That the following physicians shall be exempt from the assessment:

(A) A resident physician who is a graduate of a medical school or college of osteopathic medicine enrolled and who is participating in an accredited full-time program of post-graduate medical education in this state;

(B) A physician who has presented suitable proof that he or she is on active duty in the armed forces of the United States and who will not be reimbursed by the armed forces for the assessment;

(C) A physician who practices solely under a special volunteer medical license authorized by §30-3-10a or §30-14-12b of this code;

(D) A physician who holds an inactive license pursuant to §30-3-12(j) or §30-14-10 of this code, or a physician who voluntarily surrenders his or her license: Provided, That a retired osteopathic physician who submits to the Board of Osteopathic Medicine an affidavit asserting that he or she receives no monetary remuneration for any medical services provided, executed under the penalty of perjury and if executed outside the State of West Virginia, verified, may be considered to be licensed on an inactive basis: Provided, however, That if a physician or osteopathic physician elects to resume an active license to practice in the state and the physician or osteopathic physician has not paid the assessments during his or her inactive status, then as a condition of receiving an active status license, the physician or osteopathic physician shall pay the assessment due in the year in which physicians or the osteopathic physician resumes an active license; and

(E) A physician who practices less than 40 hours a year providing medical genetic services to patients within this state.

(2) The entire proceeds of the annual assessment collected pursuant to §29-12D-1a(a) of this code shall be dedicated to the Patient Injury Compensation Fund. The Board of Medicine and the Board of Osteopathic Medicine shall promptly pay over to the Board of Risk and Insurance Management all amounts collected pursuant to this subsection for deposit in the fund.

(3) Notwithstanding any provision of the code to the contrary, a physician required to pay the annual assessment who fails to do so shall not be granted a license or renewal of an existing license by the Board of Medicine or the Board of Osteopathic Medicine. Any license which expires as a result of a failure to pay the required assessment shall not be reinstated or reactivated until the assessment is paid in full.

(b) Assessment on trauma centers. —The Board of Risk and Insurance Management shall levy an assessment of $25 for each trauma patient treated at a health care facility designated by the Office of Emergency Medical Services as a trauma center, as reported to the West Virginia Trauma Registry, from January 1, 2016, through June 30, 2021. The assessment is due June 30 following each calendar year for which assessments are levied: Provided, That the assessment for the period January 1, 2021, through June 30, 2021, shall be due by December 31, 2021.

(c) Assessment on claims filed under the Medical Professional Liability Act. — From July 1, 2016, through December 31, 2021, an assessment of one percent of the gross amount of any settlement or judgment in a qualifying claim shall be levied.

(1) For purposes of this subsection, a qualifying claim is any claim for which a screening certificate of merit is required, or for which a statement setting forth the basis of the alleged liability of the health care provider is allowed in lieu of the screening certificate of merit, as defined in §55-7B-6 of this code.

(2) For any assessment levied pursuant to this subsection for which a judgment is entered by a court, the date of the entry of judgment shall be used to determine applicability of this provision. The defendant or defendants shall remit the assessment to the clerk of the court in which the qualified claim was filed. The clerk of the court shall then remit the assessment monthly to the State Treasury to be deposited in the fund.

(3) For any assessment levied pursuant to this subsection on a settlement entered into by the parties, the date on which the agreement is formalized in writing by the parties shall be used to determine applicability of this provision. At the time that an action alleging a qualified claim is dismissed by the parties, the assessment shall be remitted by the plaintiff or his or her counsel to the clerk of the court, who shall then remit the assessment to the State Treasury to be deposited in the fund. Collected assessments shall be remitted no less often than monthly.  If a qualifying claim is settled prior to the filing of an action, the claimant, or his or her counsel, shall remit the payment to the Board of Risk and Insurance Management within 60 days of the date of the settlement agreement to be paid into the fund.

(d) Annual Report; transfer of fund balance. — The requirements of this section shall terminate on the dates set forth in this section or sooner if the liability of the Patient Injury Compensation Fund has been paid or has been funded in its entirety. The Board of Risk and Insurance Management shall submit a report to the Joint Committee of Government and Finance each year beginning January 1, 2018, giving recommendations based on actuarial analysis of the fund’s liability. The recommendations shall include, but not be limited to, discontinuance of the assessments provided for in this section, closure of the fund and transfer of the fund’s liability. Any funds remaining in the fund on June 30, 2022, and determined by the Board of Risk and Insurance Management to not be necessary for claim payments or administrative costs of the fund, shall be transferred to the General Revenue Fund.

§29-12D-2. Administration of fund; investment of fund assets; annual actuarial review and audit; fund assets and liabilities not assets and liabilities of the state.

(a) The patient injury compensation fund shall be implemented, administered and operated by the board of Risk and Insurance Management. In addition to any other powers and authority expressly or impliedly conferred on the board of Risk and Insurance Management in this code, the board may:

(1) Receive, collect and deposit all revenues and moneys due the fund;

(2) Employ, or in accordance with the provisions of law applicable contract for personal, professional or consulting services, retain the services of a qualified competent actuary to perform the annual actuarial study of the fund required by this section and advise the board on all aspects of the fund's administration, operation and defense which require application of the actuarial science;

(3) Contract for any services necessary or advisable to implement the authority and discharge the responsibilities conferred and imposed on the board by this article;

(4) Employ, or contract with, legal counsel of the board's choosing to advise and represent the board and represent the fund in respect of any and all matters relating to the operation of the fund and payments out of the fund;

(5) Employ necessary or appropriate clerical personnel to carry out the responsibilities of the board under this part; and

(6) Promulgate rules, in accordance with article three, chapter twenty-nine-a of this code as it considers necessary or advisable to implement the authority of and discharge the responsibilities conferred and imposed on the board by this article.

(b) The assets of the fund, and any and all income, dividends, distributions or other income or moneys earned by or accruing to the benefit of the fund, shall be held in trust for the purposes contemplated by this article, and shall not be spent for any other purpose: Provided, That the assets of the fund may be used to pay for all reasonable costs and expenses of any nature whatsoever associated with the ongoing administration and operation of the fund. All assets of the fund from time to time shall be deposited with, held and invested by, and accounted for separately by the Investment Management Board. All moneys and assets of the fund shall be invested and reinvested by the Investment Management Board in the same manner as provided by law for the investment of other trust fund assets held and invested by the Investment Management Board.

(c) The board shall cause an annual review of the assets and liabilities of the fund to be conducted on an annual basis by a qualified, independent actuary.

(d) The board shall cause an audit of the fund to be conducted on an annual basis by a qualified, independent Auditor.

(e) The state of West Virginia is not liable for any liabilities of the fund. Claims or expenses against the fund are not a debt of the State of West Virginia or a charge against the General Revenue Fund of the State of West Virginia.

§29-12D-3. Payments from the Patient Injury Compensation Fund.

(a) Other than payments in connection with the ongoing operation and administration of the fund, no payments may be made from the fund other than in satisfaction of claims for economic damages to qualified claimants who would have collected economic damages but for the operation of the limits on economic damages set forth in article seven-b, chapter fifty-five of this code.

(b) For purposes of this article, a qualified claimant must be both a "patient" and a "plaintiff” as those terms are defined in article seven-b, chapter fifty-five of this code.

(c) Any qualified claimant seeking payment from the fund must establish to the satisfaction of the board that he or she has exhausted all reasonable means to recover from all applicable liability insurance an award of economic damages, following procedures prescribed by the board by legislative rule.

(d) Upon a determination by the board that a qualified claimant to the fund for compensation has exhausted all reasonable means to recover from all applicable liability insurance an award of economic damages arising under article seven-b, chapter fifty-five of this code, the board shall make a payment or payments to the claimant for economic damages. The economic damages must have been awarded but be uncollectible after the exhaustion of all reasonable means of recovery of applicable insurance proceeds. In no event shall the amount paid by the board in respect to any one occurrence exceed $1 million or the maximum amount of money that could have been collected from all applicable insurance prior to the creation of the patient injury compensation fund under this article, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.

(e) The board, in its discretion, may make payments to a qualified claimant in a lump sum amount or in the form of periodic payments. Periodic payments are to be based upon the present value of the total amount to be paid by the fund to the claimant by using federally approved qualified assignments.

(f) In its discretion, the board may make a payment or payments out of the fund to a qualified claimant in connection with the settlement of claims arising under article seven-b, chapter fifty-five of this code all according to rules promulgated by the board. The board shall prior to making payment determine that payment from the fund to a qualified claimant is in the best interests of the fund. When the claimant and the board agree upon a settlement amount, the following procedure shall be followed:

(1) A petition shall be filed by the claimant with the court in which the action is pending, or if none is pending, in a court of appropriate jurisdiction, for approval of the agreement between the claimant and the board.

(2) The court shall set the petition for hearing as soon as the court’s calendar permits. Notice of the time, date and place of hearing shall be given to the claimant and to the board.

(3) The authority of the court is limited to denial of the final proposed settlement or, if the court finds it to be valid, just and equitable, approval of the proposed settlement.

(g) If and to the extent that any payment to one or more qualified claimants under this section would deplete the fund during any fiscal year, payments to and among qualified claimant's shall, at the discretion of the board, be prorated, made in periodic installments during the fiscal year according to the rules promulgated by the board or be placed in a nonpayment status until such time as sufficient moneys are received by the fund to initiate or resume payments. Any amounts due and unpaid to qualified claimants in any fiscal year shall be paid in subsequent fiscal years from available funds, but only to the extent funds are available in any fiscal year, according to the board's rules.

(h) The claimant may appeal a final decision made by the board pursuant to the provisions of article five, chapter twenty-nine-a of this code.

§29-13-1.

Repealed.

Acts, 1961 Reg. Sess., Ch. 131.

§29-14-1.

Repealed.

Acts, 1997 Reg. Sess., Ch. 166.

§29-15-1. Creation and composition.

There is created the State Commission on Intellectual Disability hereinafter referred to as the commission.

Pursuant to §5F-2-1(g) of this code, the commission created by this section is now incorporated into and administered as part of the Department of Human Services. All references to the commission in this article shall be construed to mean the Department of Human Services.

§29-15-2. Quorum; officers; meetings.

A majority of the members of the commission shall constitute a quorum for the transaction of business. The commission shall elect a chairman, a vice chairman, and such other officers as it shall deem necessary. The commission shall meet at least two times each year. Meetings will be held upon call of the chairman or of a majority of its members.

§29-15-3. Employment, salary and expenses of personnel.

The commission shall have authority to employ such personnel as in its judgment may be necessary to carry out the work of the commission, and to fix the salaries for such employees. The commission may, within the limits of funds available, incur traveling and other expenses necessary to the effective discharge of its powers and duties. Requisition for such expenses shall be accompanied by a sworn and itemized statement which shall be filed with the Auditor.

§29-15-4.

Repealed.

Acts, 1991 Reg. Sess., Ch. 149.

§29-15-5. Purposes.

The Department of Human Services shall take action to carry out the following purposes:

(a) Plan for and take other steps leading to comprehensive state and community action to combat intellectual disability.

(b) Determine what action is needed to combat intellectual disability in the state and the resources available for this purpose.

(c) Develop public awareness of the intellectual disability problem and of the need for combating it.

(d) Coordinate state and local activities relating to the various aspects of intellectual disability and its prevention, treatment, or amelioration.

(e) Consult with and advise the Governor and Legislature on all aspects of intellectual disability.

(f) Consult with and advise state agencies, boards or departments with intellectual disability responsibilities relative to the effective discharge of such responsibilities.

§29-15-6. State agency for federal intellectual disability program.

The Department of Human Services is designated and established as the sole state agency for receiving appropriations under and carrying out the purposes of section five of Public Law 88-156, eighty-eighth Congress approved October 24, 1963, and any law amending, revising, supplementing or superseding section five of said Public Law 88-156.

The department constitutes the designated state agency for handling all programs of the federal government relating to intellectual disability requiring action within the state which are not the specific responsibility of another state agency under the provisions of federal law, rules or regulations, or which have not been specifically entrusted to another state agency by the Legislature.

§29-15-7. Donations and grants.

The commission may accept for any of its purposes and functions under this article any and all donations, any grants of money, equipment, supplies, materials, and services (conditional or otherwise) from the United States or any agency thereof, or from any institution, person, firm or corporation, and may receive, utilize, administer and dispose of the same. The commission shall be empowered to comply with all regulations and requirements to qualify for such grants from the United States or agency thereof.

The Legislature shall authorize the necessary appropriation to carry out the work of the commission.

§29-15-8. Annual report required.

On or before January one of each year, the commission shall submit to the Governor and to the members of the Legislature a report summarizing the work and the activities of the commission for the preceding year.

§29-16-1.

Repealed.

Acts, 1969 Reg. Sess., Ch. 100.

§29-17-1.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-18-1. Short title.

[Repealed].

§29-18-2. Declaration of policy and responsibility; purpose and intent of article; findings.

[Repealed].

§29-18-3. Definitions.

[Repealed].

§29-18-4. West Virginia state rail authority continued; organization of authority; appointment of members; term of office, compensation and expenses; director of authority; termination date.

[Repealed].

§29-18-4a. Supervision of West Virginia State Rail Authority; executive director’s compensation.

[Repealed].

§29-18-5. Authority may construct, maintain, etc., railroad maintenance projects.

[Repealed].

§29-18-6. Powers, duties and responsibilities of authority generally.

[Repealed].

§29-18-7. Operations; purchases.

[Repealed].

§29-18-8. Creation of railroad maintenance authority fund.

[Repealed].

§29-18-9. Expenditure of funds for study and engineering of proposed projects.

[Repealed].

§29-18-10. Authority empowered to issue bonds, renewal notes and refunding bonds; requirements and manner of such issuance.

[Repealed].

§29-18-11. Trustee for bondholders; contents of trust agreement.

[Repealed].

§29-18-12. Legal remedies of bondholders and trustees.

[Repealed].

§29-18-13. Bonds and notes not debt of state, county, municipality or of any political subdivision; expenses incurred pursuant to article.

[Repealed].

§29-18-14. Use of funds by authority; restrictions thereon.

[Repealed].

§29-18-15. Investment of funds by authority.

[Repealed].

§29-18-16. Rentals and other revenues from railroad projects; contracts and leases of authority; cooperation of other governmental agencies; bonds of such agencies.

[Repealed].

§29-18-17. Maintenance, operation and repair of projects; reports by authority to Governor and Legislature.

[Repealed].

§29-18-18. Railroad maintenance bonds lawful investments.

[Repealed].

§29-18-19. Exemption from taxation.

[Repealed].

§29-18-20. Acquisition of property by authority; governmental agencies authorized to convey, etc., property.

[Repealed].

§29-18-21. Property of public utilities and common carriers.

[Repealed].

§29-18-22. Financial interest in contracts prohibited; penalty.

[Repealed].

§29-18-23. Meetings and records of authority to be kept public.

[Repealed].

§29-18-24. Creation of the West Virginia Commuter Rail Access Fund.

[Repealed].

§29-18-25. State rail plan required.

[Repealed].

§29-19-1. Short title.

This article shall be known and may be cited as the "Solicitation of Charitable Funds Act."

§29-19-1a. General purpose.

The purpose of this article is to protect the people of the State of West Virginia by requiring full public disclosure by persons and organizations who solicit funds from the public and the purposes for which such funds are solicited and how they are actually used, and to prevent deceptive and dishonest statements and conduct in the solicitation and reporting of funds for or in the name of charity.

§29-19-2. Definitions.

As used in this article:

(1) “Audit” means the systematic examination of records and documents and the securing of other evidence by confirmation, physical inspection, or otherwise, that includes a written assurance that financial statements and reports are fairly presented in conformity with generally accepted accounting principles issued by the American Institute of Certified Public Accountants.

(2) “Charitable organization” means a person who is or holds itself out to be a benevolent, educational, philanthropic, humane, patriotic, religious or eleemosynary organization, or any person who solicits or obtains contributions solicited from the public for charitable purposes, or any person who in any manner employs any appeal for contributions which may be reasonably interpreted to suggest that any part of those contributions will be used for charitable purposes. A chapter, branch, area, office or similar affiliate or any person soliciting contributions within the state for a charitable organization which has its principal place of business outside the state is a charitable organization for the purposes of this article.

(3) “Contribution” means the promise or grant of any money or property of any kind or value.

(4) “Financial review” means an examination of financial statements in accordance with generally accepted accounting principles issued by the American Institute of Certified Public Accountants, in which a certified public accountant has a reasonable basis for expressing limited assurance that the reviewed statements are free of material misstatements or false or missing information and are found to be accurate, complete and fairly presented to meet the requirements of the generally accepted accounting principles.

(5) “Solicit” and “solicitation” means the request or appeal, directly or indirectly, for any contribution on the plea or representation that the contribution will be used for a charitable purpose, including, without limitation, the following methods of requesting a contribution:

(A) Any oral or written request;

(B) Any announcement to the press, over the radio or television, or by telephone, electronic mail or messaging, electronic bulletin board, or Internet technology, concerning an appeal or campaign to which the public is requested to make a contribution for any charitable purpose connected therewith;

(C) The distribution, circulation, posting or publishing of any handbill, written advertisement or other publication which directly or by implication seeks to obtain public support; or

(D) The sale of, offer or attempt to sell, any advertisement, advertising space, subscription, ticket or any service or tangible item in connection with which any appeal is made for any charitable purpose or where the name of any charitable or civic organization is used or referred to in an appeal as an inducement or reason for making the sale, or when or where in connection with the sale, any statement is made that the whole, or any part of, the proceeds from the sale will be donated to any charitable purpose.

“Solicitation”, as defined herein, occurs when the request is made, at the place the request is received, whether or not the person making the request actually receives any contribution.

(6) “Federated fund-raising organization” means a federation of independent charitable organizations which have voluntarily joined together, including, but not limited to, a united fund or community chest, for purposes of raising and distributing money for and among themselves and where membership does not confer operating authority and control of the individual agencies upon the federated group organization.

(7) “Parent organization” is that part of a charitable organization which coordinates, supervises or exercises control over policy, fund raising and expenditures, or assists, receives funds from or advises one or more chapters, branches or affiliates in the state.

(8) “Person” means any individual, organization, trust, foundation, group, association, partnership, corporation, society or any combination of them.

(9) “Professional fund-raising counsel” means any person who for a flat fixed fee under a written agreement plans, conducts, manages, carries on, advises or acts as a consultant, whether directly or indirectly, in connection with soliciting contributions for, or on behalf of any charitable organization but who actually solicits no contributions as a part of the services. A bona fide salaried officer or employee of a charitable organization maintaining a permanent establishment within the state is not a professional fund-raising counsel.

(10) “Professional solicitor” means any person who, for a financial or other consideration, solicits contributions for, or on behalf of a charitable organization, whether the solicitation is performed personally or through that person’s agents, servants or employees specially employed by, or for a charitable organization, who are engaged in the solicitation of contributions under the direction of that person, or a person who plans, conducts, manages, carries on, advises or acts as a consultant to a charitable organization in connection with the solicitation of contributions but does not qualify as “professional fund-raising counsel” within the meaning of this article. A bona fide salaried officer or employee of a charitable organization maintaining a permanent establishment within the state is not a professional solicitor.

No attorney, investment counselor or banker, who advises any person to make a contribution to a charitable organization, is considered, as the result of the advice, a professional fund-raising counsel or a professional solicitor.

(11) “Sign” means the action of affixing a person’s signature to any document or record, whether by manual, written, or approved electronic means.

(12) “Signature” means any mark, symbol, facsimile, or electronic mark or symbol, that depicts a person’s name on any document or record, affixed to the document or record by the person with the intent to authenticate, assert, certify, or agree to the matters, validity, information, or attestation set forth in the document or record.

§29-19-3.

Repealed.

Acts, 1995 Reg. Sess., Ch. 234.

§29-19-4.

Repealed.

Acts, 1995 Reg. Sess., Ch. 234.

§29-19-5. Registration of charitable organizations; fee.

(a) Every charitable organization, except as provided in section six of this article, which intends to solicit contributions, donations or grants within this state or to have funds solicited or received on its behalf shall, prior to any solicitation, register with the Secretary of State, in a manner or method authorized and upon forms prescribed by him or her which shall be good for one full year and which shall be refiled in the next and each following year in which the charitable organization is engaged in solicitation activities. If an organization discontinues solicitation at any time after its last registration filing, then it shall file a registration statement reflecting its activities during its last fiscal year in which solicitation in West Virginia took place. The president, chairman, or principal officer of the charitable organization signed by an authorized agent of the charitable organization shall file the statements required under this article. The statements shall be sworn to and shall contain the following information:

(1) The name of the organization and the purpose for which it was organized;

(2) The principal address of the organization and the address of any offices in this state. If the organization does not maintain an office, the name and address of the person having custody of its financial records;

(3) The names and addresses of any chapters, branches or affiliates in this state;

(4) The place where and the date when the organization was legally established and the form of its organization;

(5) The names and addresses of the officers, directors, trustees and the principal salaried executive staff officer;

(6) A copy of a balance sheet and a statement or report of income and expenses for the organization’s immediately preceding fiscal year or a financial statement reporting information showing the kind and amount of funds raised during the preceding fiscal year, the costs and expenses incidental to the fundraising and showing how the funds were disbursed or allocated for the same fiscal year: Provided, That in addition to the financial documents required by this subdivision:

(A) Charitable organizations raising more than $500,000 per year in contributions, excluding grants from governmental agencies or private foundations, shall submit a report of an audit by an independent certified public accountant; and

(B) Charitable organizations raising more than $200,000 per year, but less than $500,000 per year in contributions, excluding grants from governmental agencies or private foundations, shall submit a statement of financial review by an independent certified public accountant;

(7) A copy of any determination of the organization’s tax-exempt status under the provisions of 26 U.S.C. §501(c)(3) and a copy of the last filed Internal Revenue Service Form 990 and Schedule A for every charitable organization and any parent organization;

(8) Whether the organization intends to solicit contributions, donations or grants from the public directly or have other solicitation done on its behalf by others;

(9) Whether the organization is authorized by any other governmental authority to solicit contributions, donations or grants and whether it is or has ever been enjoined by any court from soliciting contributions;

(10) The general purpose or purposes for which the contributions to be solicited shall be used;

(11) The name or names under which it intends to solicit contributions;

(12) The names of the individuals or officers of the organization who will have final responsibility for the custody of the contributions;

(13) The names of the individuals or officers of the organization responsible for the final distribution of the contributions;

(14) Copies of all contract documentation from professional fund-raising counsels and professional solicitors as provided in subsection (d), section seven of this article; and

(15) The amount of money received in the state and the amount spent in the state for charitable purposes.

(b) Each chapter, branch or affiliate, except an independent member agency of a federated fundraising organization, may separately report the information required by this section or report the information to its parent organization which shall then furnish the information regarding its West Virginia affiliates, chapters and branches in a consolidated form to the Secretary of State. An independent member agency of a federated fundraising organization, as defined in section two of this article, shall comply with the provisions of this article independently. Each organization shall file a separate registration form for each name under which funds will be solicited.

(c) The registration forms and any other documents prescribed by the Secretary of State shall be signed by an authorized agent, officer or by an independent public accountant and by the chief fiscal officer of the charitable organization.

(d) Every charitable organization receiving less than $1 million during any year which submits an independent registration to the Secretary of State shall pay an annual registration fee of $15; every charitable organization collecting more than $1 million during one year which submits an independent registration to the Secretary of State shall pay an annual registration fee of $50; and a parent organization filing on behalf of one or more chapters, branches or affiliates or a single organization filing under different names shall pay a single annual registration fee of $50 for itself and the chapters, branches or affiliates included in the registration statement. All fees and moneys collected by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the State General Revenue Fund and one-half shall be deposited in the services fees and collections account established by §59-1-2 of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

(e) For good cause shown, the Secretary of State may extend the due date for the annual filing of a registration statement or report by a charitable organization or a professional fundraiser for a period not to exceed 90 days. During that period, the previously filed registration statement or report of the charitable organization which has been granted the extension remains in effect.

(f) In addition to the registration fee required by this section, a charitable organization or professional fundraiser, or both, which fails to file a registration statement or report by the original or extended due date for filing as required by this section shall, for each month or part of the month thereafter in which the registration statement or report is not filed, pay an additional fee of $25: Provided, That the total amount of the additional fees for a registration statement or report required to be filed in any one year may not exceed $500. All fees and moneys collected by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the State General Revenue Fund and one-half shall be deposited in the service fees and collections account established by §59-1-2 of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

§29-19-6. Certain persons and organizations exempt from registration.

NOTE: West Virginia Code §29-19-6 was amended by two bills passed during the 2020 Regular Session of the Legislature. When two acts of the Legislature amend the same section of the Code without express recognition in the bill of the action of the other bill, the Legislative Manager makes no determination as to the appropriate, legal effect of the two acts. Therefore, both versions of this section are set out below.

House Bill 4747 (passed last on March 7, 2020) amended West Virginia Code §29-19-6 to read as follows:

The following charitable organizations are not required to file an annual registration statement with the Secretary of State:

(1) Educational institutions, the curriculums of which, in whole or in part, are registered or approved by the State Board of Education, either directly or by acceptance of accreditation by an accrediting body recognized by the State Board of Education; and any auxiliary associations, foundations and support groups which are directly responsible to the educational institutions;

(2) Persons requesting contributions for the relief of any individual specified by name at the time of the solicitation when all of the contributions collected without any deductions whatsoever are turned over to the named beneficiary for his or her use;

(3) Hospitals and licensed nursing homes which are nonprofit and charitable;

(4) Organizations which solicit only within the membership of the organization by the members thereof: Provided, That the term “membership” does not include those persons who are granted a membership upon making a contribution as the result of solicitation. For the purpose of this section, “member” means a person having membership in a nonprofit corporation, or other organization, in accordance with the provisions of its articles of incorporation, bylaws or other instruments creating its form and organization; and having bona fide rights and privileges in the organization, including the right to vote, to elect officers, directors and issues, to hold office or otherwise as ordinarily conferred on members of the organizations;

(5) Churches, synagogues, associations or conventions of churches, religious orders or religious organizations that are an integral part of a church which qualifies as tax exempt under the provisions of 26 U.S.C. §501(c)(3) and which qualifies as being exempt from filing an annual return under the provisions of 26 U.S.C. §6033;

(6) Any person, firm, corporation or organization that sponsors a single fundraising event for the benefit of a named charitable organization where all or part of the funds collected are donated to the named charitable organization: Provided, That the named charitable organization receiving the funds is registered pursuant to this article, reports each of these donations individually and certifies that no funds were withheld by the organization that solicited the funds;

(7) Any charitable organization that does not employ a professional solicitor or fundraiser and does not intend to solicit and receive and does not actually raise or receive contributions, donations or grants from the public in excess of $50,000 during a calendar year.

Charitable organizations which do not intend to solicit and receive contributions, donations or grants in excess of $50,000, but do receive in excess of that amount from the public, shall file the annual registration statement within 30 days after contributions are in excess of $50,000.

House Bill 4714 (passed first on March 4, 2020) amended West Virginia Code §29-19-6 to read as follows:

The following charitable organizations are not required to file an annual registration statement with the Secretary of State:

(1) Educational institutions, the curriculums of which, in whole or in part, are registered or approved by the State Board of Education, either directly or by acceptance of accreditation by an accrediting body recognized by the State Board of Education; and any auxiliary associations, foundations and support groups which are directly responsible to the educational institutions;

(2) Persons requesting contributions for the relief of any individual specified by name at the time of the solicitation when all of the contributions collected without any deductions whatsoever are turned over to the named beneficiary for his or her use;

(3) Hospitals and licensed nursing homes which are nonprofit and charitable;

(4) Organizations which solicit only within the membership of the organization by the members thereof: Provided, That the term “membership” does not include those persons who are granted a membership upon making a contribution as the result of solicitation. For the purpose of this section, “member” means a person having membership in a nonprofit corporation, or other organization, in accordance with the provisions of its articles of incorporation, bylaws or other instruments creating its form and organization; and having bona fide rights and privileges in the organization, including the right to vote, to elect officers, directors and issues, to hold office or otherwise as ordinarily conferred on members of the organizations;

(5) Churches, synagogues, associations or conventions of churches, religious orders or religious organizations that are an integral part of a church which qualifies as tax exempt under the provisions of 26 U.S.C. §501(c)(3) and which qualifies as being exempt from filing an annual return under the provisions of 26 U.S.C. §6033;

(6) Any person, firm, corporation or organization that sponsors a single fund-raising event for the benefit of a named charitable organization where all or part of the funds collected are donated to the named charitable organization: Provided, That the named charitable organization receiving the funds is registered pursuant to this article, reports each of these donations individually and certifies that no funds were withheld by the organization that solicited the funds; and

(7) (A) Any charitable organization that does not employ a professional solicitor or fundraiser and does not intend to solicit and receive and does not actually raise or receive contributions, donations or grants from the public in excess of $50,000 during a calendar year.

(B) Charitable organizations which do not intend to solicit and receive contributions, donations or grants in excess of $50,000, but do receive in excess of that amount from the public, shall file the annual registration statement within 30 days after contributions are in excess of $50,000.

§29-19-7. Filing of solicitation contracts.

(a) Every written contract or agreement between professional fund-raising counsel and a charitable organization shall be filed by the professional fund-raising counsel with the Secretary of State within ten days after said parties have entered into such contract or agreement.

(b) Every written contract or agreement between a professional solicitor and a charitable organization shall be filed by the professional solicitor with the Secretary of State within ten days after said parties have entered into such agreement or contract. In the absence of a written contract or agreement between a professional solicitor and a charitable organization, a written statement of the nature of the arrangement to prevail in lieu thereof shall be filed.

(c) Each statement must clearly provide the amount, percentage or other method of compensation to be received by the professional solicitor or professional fund-raising counsel as a result of the contract or arrangement.

(d) Each charitable organization, as part of its registration as required in section five of this article, shall file with the Secretary of State copies of all documents reflecting the final settlement amounts for a solicitation contract or, in the case of multiple year contracts, documents reflecting the total amount of money, funds or other property raised and expenses incurred by the professional fund-raising counsel or professional solicitor in a fiscal year.

(e) For purposes of this section, the total moneys, funds, pledges or other property raised or received shall not include the actual cost to the charitable organization or professional solicitor of goods sold or service provided to the public in connection with the soliciting of contributions.

§29-19-8. Limitations on activities of charitable organizations.

No charitable organizations subject to this article may solicit funds from the public except for charitable purposes or expend funds raised for charitable purposes not stated in its solicitation materials.

All registered charitable organizations and their professional fund raisers and solicitors are required to disclose in writing: (1) The name of a representative of the charitable organization to whom inquiries can be made; (2) the name of the charitable organization; (3) the purpose of the solicitation; (4) upon request of the person solicited, the estimated percentage of the money collected which will be applied to the cost of solicitation and administration or how much of the money collected will be applied directly for the charitable purpose; and (5) the number of the raffle, bingo or other such state permit used for fund raising.

Every printed solicitation shall include the following statement: "West Virginia residents may obtain a summary of the registration and financial documents from the Secretary of State, State Capitol, Charleston, West Virginia 25305. Registration does not imply endorsement."

The disclosure statement shall be conspicuously displayed on any written or printed solicitation. Where the solicitation consists of more than one piece, the disclosure statement shall be displayed on a prominent part of the solicitation materials.

Organizations applying for registration shall be reviewed according to the following standards:

(a) Charitable organizations shall include in each solicitation a clear description of programs for which funds are requested and source from which written information is available pursuant to section thirteen of this article. Expenditures shall be related in a primary degree to stated purpose (programs and activities) described in solicitations and in accordance with reasonable donor expectations. For purposes of this section, reasonable donor expectation requires that a charitable organization shall not expend funds in ways that are not apparent to a donor from the text of the presentation as being obvious or potential uses for his contribution. The reasonable donor expectation standard shall apply to all expenditures made by the charitable organization when compared to the solicitation materials used.

(b) Charitable organizations shall establish and exercise controls over fund-raising activities conducted for the organizations' benefit, including written contracts and agreements and assurance of fund-raising activities without excessive pressure.

(c) Each charitable organization shall establish an independent governing board which shall oversee the expenditures, policies, programs and purposes of the charity's activities. The independent governing board shall not delegate its oversight control or authority to any other person(s) or organization.

(d) Members of the independent governing board and officers of the organization shall avoid transactions involving conflict of interest on their part. A charitable organization may enter into transactions involving parties related by blood, marriage or business association only if: (1) Where a majority of the independent governing board has survived disqualification over conflicts of interest to approve the action; and (2) where the related parties or potential conflict is fully disclosed in the application for registration; and (3) where the transaction is fair and reasonable for the organization.

(e) No charitable organization, professional fund raiser or other person soliciting contributions for or on behalf of a charitable organization may use a name, symbol or statement so closely related or similar to that used by another charitable organization or governmental agency that the use thereof would tend to confuse or mislead the public.

§29-19-9. Registration of professional fundraising counsel and professional solicitor; bonds; records; books.

(a) No person may act as a professional fundraising counsel or professional solicitor for a charitable organization subject to the provisions of this article unless he or she has first registered with the Secretary of State. The registration application shall be submitted in a manner or method authorized by the Secretary of State and contain the information he or she requires. The registration application by professional fundraising counsel or professional solicitor shall be accompanied by an annual fee in the sum of $100. A partnership or corporation, which is a professional fundraising counsel or professional solicitor, may register for and pay a single fee on behalf of all its members, officers, agents and employees. However, the names and addresses of all officers, agents and employees of professional fundraising counsel and all professional solicitors, their officers, agents, servants or employees employed to work under the direction of a professional solicitor shall be listed in the application. All fees and moneys collected by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the state General Revenue Fund and one-half shall be deposited in the service fees and collections account established by §59-1-2 of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

(b) The applicant shall, at the time of the making of an application, file with and have approved by the Secretary of State a bond in which the applicant shall be the principal obligor in the sum of $10,000 and which shall have one or more sureties satisfactory to the Secretary of State whose liability in the aggregate as such sureties will at least equal the said sum and maintain the bond in effect so long as a registration is in effect. The bond shall run to the state for the use of the Secretary of State and any person who may have a cause of action against the obligor of the bonds for any losses resulting from malfeasance, nonfeasance or misfeasance in the conduct of solicitation activities. A partnership or corporation which is a professional fundraising counsel or professional solicitor may file a consolidated bond on behalf of all its members, officers and employees.

(c) Each registration is valid throughout the state for a period of one year and may be renewed for additional one-year periods upon application submitted to the Secretary of State in a manner or method authorized and in the form prescribed by the Secretary of State and the payment of the fee prescribed in this section.

(d) The Secretary of State or his or her designee shall examine each application and if he or she finds it to be in conformity with the requirements of this article and all relevant rules and the registrant has complied with the requirements of this article and all relevant rules, he or she shall approve the registration.

§29-19-10. Information filed to become public records.

Registration statements and applications, reports, professional fund-raising counsel contracts or professional solicitor contracts, and all other documents and information required to be filed under this article or by the Secretary of State shall become public records in the office of the Secretary of State, and shall be open to the general public for inspection at such time and under such conditions as the Secretary of State may prescribe.

§29-19-11. Records to be kept by charitable organizations, professional fund-raising counsel and professional solicitors.

Every charitable organization, professional fund raising counsel and professional solicitor subject to the provisions of this article shall, in accordance with the rules prescribed by the Secretary of State, keep true fiscal records as to its activities in this state as may be covered by this article in such form as will enable it accurately to provide the information required by this article. Upon demand, such records shall be made available to the Secretary of State or the Attorney General for inspection. Such records shall be retained for a period of at least three years after the end of the period of registration to which they relate.

§29-19-12. Reciprocal agreements.

The Secretary of State may enter into reciprocal agreements with the appropriate authority of any other state for the purpose of exchanging information with respect to charitable organizations, professional fund-raising counsel and professional solicitors. Pursuant to such agreements the Secretary of State may accept information filed by a charitable organization, professional fund-raising counsel or professional solicitor with the appropriate authority of another state in lieu of the information required to be filed in accordance with the provisions of this article, if such information is substantially similar to the information required under this article.

§29-19-13. Prohibited acts.

(a) No charitable organization, professional fund-raising counsel or professional solicitor subject to the provisions of this article may use or exploit the fact of registration so as to lead the public to believe that such registration in any manner constitutes an endorsement or approval by the state.

(b) No person may, in connection with the solicitation of contributions for or the sale of goods or services of a person other than a charitable organization, misrepresent to or mislead anyone by any manner, means, practice or device whatsoever, to believe that the person on whose behalf such solicitation or sale is being conducted is a charitable organization or that the proceeds of such solicitation or sale will be used for charitable purposes, if such is not the fact.

(c) No person may, in connection with the solicitation of contributions for charitable purposes, misrepresent, mislead, or omit information concerning how the proceeds will be used. Proceeds gathered from any given solicitation must be used for the charitable purposes represented in the materials sent or the presentation given by the solicitor. Violations of this section will be considered to be both a violation of the reasonable donor expectation standard of section eight and may be subject to prosecution for fraud pursuant to section fifteen of this article.

(d) No person may in connection with the solicitation of contributions or the sale of goods or services for charitable purposes represent to or lead anyone by any manner, means, practice or device whatsoever, to believe that any other person sponsors or endorses such solicitation of contributions, sale of goods or services for charitable purposes or approves of such charitable purposes of a charitable organization connected therewith when such other person has not given consent to the use of his or her name for these purposes: Provided, That any member of the board of directors or trustees of a charitable organization or any other person who has agreed either to serve or to participate in any voluntary capacity in the campaign shall be deemed thereby to have given his or her consent to the use of his or her name in said campaign.

(e) No person may make any representation that he or she is soliciting contributions for or on behalf of a charitable organization or shall use or display any emblem, device or printed matter belonging to or associated with a charitable organization for the purpose of soliciting or inducing contributions from the public without first being authorized to do so by the charitable organization.

(f) No professional solicitor may solicit in the name of or on behalf of any charitable organization unless such solicitor:

Has obtained the written authorization of two officers of such organization, a copy of which shall be filed with the Secretary of State. Such written authorization shall bear the signature of the solicitor and shall expressly state on its face the period for which it is valid, which shall not exceed one year from the date issued.

§29-19-14. Nonresident charitable organizations, professional fund-raising counsel and solicitors; designation of Secretary of State as agent for service of process; notice of such service by Attorney General.

Any charitable organization or professional fund-raising counsel or professional solicitor having its or his or her principal place of business without the state, or organized under and by virtue of the laws of a foreign state, which or who shall solicit contributions from people in this state, is subject to the provisions of this article and shall be deemed to have irrevocably appointed the Secretary of State as its or his or her agent upon whom may be served any summons, subpoena, subpoena duces tecum or other process directed to such charitable organization, professional fund-raising counsel or professional solicitor or any partner, principal officer or director thereof in any action or proceeding brought under the provisions of this article. Service of such process upon the Secretary of State shall be made by personally delivering to and leaving with him a copy thereof along with the fee required by section two, article one, chapter fifty-nine of this code, and such service shall be sufficient service: Provided, That notice of such service and a copy of such process are forthwith sent by the Secretary of State to such charitable organization or professional fund-raising counsel or professional solicitor by registered or certified mail with return receipt requested at its or his or her office, as set forth in the registration form required to be filed with the Secretary of State pursuant to this article or in default of the filing of such form, at the last address known to the Secretary of State.

§29-19-15. Enforcement and penalties.

(a) The Secretary of State, upon his or her own motion, or upon complaint of any person, may, if he or she finds reasonable ground to suspect a violation, investigate any charitable organization, professional fund-raising counsel or professional solicitor to determine whether such charitable organization, professional fund-raising counsel or professional solicitor has violated the provisions of this article or has filed any application or other information required under this article which contains false or misleading statements.

(b) In addition to the foregoing, any person who willfully and knowingly violates any provision of this article, or who shall willfully and knowingly give false or incorrect information to the Secretary of State in filing statements or reports required by this article, whether such report or statement is verified or not, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined upon first conviction thereof in an amount not less than $100 nor more than $500, or be imprisoned in the county jail for not more than six months, or be both fined and imprisoned, and for the second and any subsequent offense to pay a fine of not less than $500 nor more than $1,000, or be imprisoned for not more than one year, or be both fined and imprisoned.

(c) Whenever the Secretary of State, Attorney General or any prosecuting attorney has reason to believe that any charitable organization, professional fund-raising counsel or professional solicitor is operating in violation of the provisions of this article, the Secretary of State, Attorney General or prosecuting attorney may bring an action in the name of the state against such charitable organization and its officers, such professional fund-raising counsel or professional solicitor or any other person who has violated this article in the circuit court of the county wherein the cause of action arises to enjoin such charitable organization or professional fund-raising counsel or professional solicitor or other person from continuing such violation, solicitation or collection, or from engaging therein or from doing any acts in furtherance thereof and for such other relief as the court deems appropriate.

(d) In addition to the foregoing, any charitable organization, professional fund-raising counsel or professional solicitor who willfully and knowingly violates any provisions of this article by employing any device, scheme, artifice, false representation or promise with intent to defraud or obtain money or other property shall be guilty of a misdemeanor, and, upon conviction thereof, for a first offense, shall be fined not less than $100 nor more than $500, or be confined in the county jail not more than six months, or be both fined and imprisoned; and for a second and any subsequent offense, shall be fined not less than $500 nor more than $1,000, or confined in the county jail not more than one year, or be both fined and imprisoned.

At any proceeding under this section, the court shall also determine whether it is possible to return to the contributors the contributions which were thereby obtained.

If the court finds that the said contributions are readily returnable to the original contributors, it may order the money to be placed in the custody and control of a general receiver, appointed pursuant to the provisions of article six, chapter fifty-one of this code, who shall be responsible for its proper disbursement to such contributors.

If the court finds that: (1) It is impossible to obtain the names of over one half the persons who were solicited and in violation of this article, or (2) if the majority of individual contributions was of an amount less than $5, or (3) if the cost to the state of returning these contributions is equal to or more than the total sum to be refunded, the court shall order the money to be placed in the custody and control of a general receiver appointed pursuant to the provisions of article six, chapter fifty-one of this code. The general receiver shall maintain this money pursuant to the provisions of article eight, chapter thirty-six of this code.

§29-19-15a. Private actions and class actions.

(a) Any person who suffers injury or damages as a result of acts or practices in violation of the provisions of this article may bring a civil action against the charitable organization, professional fund raiser, or professional solicitor engaged in such acts or practices. The person may recover such damages sustained as a result of such acts and practices, costs incurred, and reasonable attorneys' fees. Punitive damages may be awarded in cases of intentional violations of this article.

(b) The Attorney General, or Secretary of State, in a representative capacity on behalf of any person entitled to bring an action under this article, or any person entitled to bring an action under this article, may institute a class action, pursuant to the applicable rules of civil procedure governing class actions, for the recovery of damages.

§29-19-15b. Civil penalty for intentional violations.

In any action brought pursuant to the provisions of this article, if the court finds that intentional violations have occurred, the state, upon petition to the court and in addition to any damages awarded any party or parties, may recover attorney fees and a civil penalty not exceeding three times the amount collected in that civil action. Of any funds recovered as provided for in this section and any other funds recovered by the state as the result of an award for damages, penalties or settlements in enforcing this article, one-half shall be deposited in the state General Revenue Fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operations of the office of the Secretary of State. Any balance remaining on June 30, 2001, in the existing special revenue account entitled "charitable organization fund" as established by chapter thirty-four, acts of the Legislature, 1992 regular session, shall be transferred to the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

§29-19-16.

Repealed.

Acts, 1995 Reg. Sess., Ch. 234.

§29-20-1. Membership; appointment and terms of members; organization; reimbursement for expenses.

There is continued within the Department of Human Services the West Virginia Women's Commission, to consist of eighteen members, seven of whom shall be ex officio members, not entitled to vote: The Attorney General, the state Superintendent of Schools, the commissioner of labor, the commissioner of the bureau of human resources of the Department of Human Services, the director of the Human Rights Commission, the director of the Division of Personnel and the chancellor of the board of directors of the state college system. Each ex officio member may designate one representative employed by his or her department to meet with the commission in his or her absence. The Governor shall appoint the additional eleven members, by and with the advice and consent of the Senate, from among the citizens of the state. The Governor shall designate the chairman and vice chairman of the commission and the commission may elect such other officers as it deems necessary. The members shall serve a term beginning July 1, 1977, three to serve for a term of one year, four to serve for a term of two years and the remaining four to serve for a term of three years. The successors of the members initially appointed as provided herein shall be appointed for a term of three years each in the same manner as the members initially appointed under this article, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed for the remainder of such term. Each member shall serve until the appointment and qualification of his or her successor.

No member may receive any salary for his or her services, but each may be reimbursed for actual and necessary expenses incurred in the performance of his or her duties out of funds received by the commission under section four of this article, except that in the event the expenses are paid, or are to be paid, by a third party, the members shall not be reimbursed by the commission.

§29-20-2. Powers and duties of commission.

It is the duty of the commission:

(a) To review and study the status of women in this state;

(b) To recommend methods of overcoming discrimination against women in public and private employment and in the exercise of their civil and political rights;

(c) To promote more effective methods for enabling women to develop their skills, to continue their education and to be retrained;

(d) To strengthen home life by directing attention to critical problems confronting women as wives, mothers, homemakers and workers;

(e) To make surveys in the fields of, but not limited to, education, social services, labor laws and employment policies, law enforcement, health, new and expanded services of benefit to women, legal rights, family relations and volunteer services;

(f) To secure appropriate recognition of women's accomplishments and contributions to this state;

(g) To disseminate information for the purpose of educating the public as to the existence and functions of the commission and as to matters of general beneficial interest to women; and

(h) To advise, consult and cooperate with other offices of the Department of Human Services and other agencies of state government, and to receive assistance therefrom, in the development of activities and programs of beneficial interest to women and on matters relating generally to women.

§29-20-3. Commission administrative personnel.

The commission may, consistent with state personnel procedures and with the approval of the secretary of the Department of Human Services or his or her designee, appoint an executive director, who shall act as the chief administrative officer of the commission, in addition to such other duties as he or she may be assigned. The commission may also, consistent with state personnel procedures and with the approval of the secretary of the Department of Human Services or his or her designee, appoint such other personnel as may be deemed necessary to accomplish its objectives. All persons so employed shall be paid from funds received by the Department of Human Services or the commission under section four of this article.

§29-20-4. Power of commission to accept funds.

The commission, or the Department of Human Services on behalf of the commission, may accept gifts, grants and bequests of funds from individuals, foundations, corporations, the federal government, governmental agencies and other organizations or institutions; make and sign any agreements and do and perform any acts that may be necessary to carry out the purposes of this article.

§29-20-5. Rules and regulations.

The commission shall adopt rules and regulations concerning the operation of the commission, the functions and responsibilities of its officers and employees and such other matters as may be necessary to carry out the purpose of this article, subject to the applicable provisions of chapter twenty- nine-a of this code.

§29-20-6. Annual report.

The commission shall, with the approval of the secretary of the Department of Human Services or his or her designee, submit an annual report to the Legislature and the Governor, including recommendations based on its studies.

§29-20-7.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-21-1. Legislative findings; purpose.

The Legislature finds and declares that in certain proceedings the state is required to provide high quality legal assistance to indigent persons who would be otherwise unable to afford adequate legal counsel; that providing legal representation to those who face an economic barrier to adequate legal counsel will serve the ends of justice in accordance with rights and privileges guaranteed to all citizens by the Constitution of the United States of America and the Constitution of the State of West Virginia; that the availability of quality legal assistance reaffirms the faith of our citizens in our government of laws; that the present system which utilizes appointed counsel is not operating satisfactorily in some areas of this state and the Legislature is presently unable to determine what system or systems will provide the most efficient means for providing legal representation; that there is a need to explore alternative methods of delivering legal assistance, including the use of salaried public defenders complemented by private panel attorneys; that innovative programs and pilot projects as well as a continuation of the present appointed counsel system are necessary in separate areas of the state to provide information and experience upon which to base future legislative action.

§29-21-2. Definitions.

As used in this article, the following words and phrases are hereby defined:

(1) "Eligible client": Any person who meets the requirements established by this article to receive publicly funded legal representation in an eligible proceeding as defined herein;

(2) "Eligible proceeding": Criminal charges which may result in incarceration; juvenile proceedings; proceedings to revoke parole or probation if the revocation may result in incarceration; contempt of court; child abuse and neglect proceedings which may result in a termination of parental rights; mental hygiene commitment proceedings; extradition proceedings; proceedings which are ancillary to an eligible proceeding, including, but not limited to, proceedings to enhance sentences brought pursuant to sections eighteen and nineteen, article eleven, chapter sixty-one of this code, forfeiture proceedings brought pursuant to article seven, chapter sixty-a of this code, and proceedings brought to obtain extraordinary remedies; and appeals from or post-conviction challenges to the final judgment in an eligible proceeding. Legal representation provided pursuant to the provisions of this article is limited to the court system of the State of West Virginia, but does not include representation in municipal courts unless the accused is at risk of incarceration;

(3) "Legal representation": The provision of any legal services or legal assistance as counsel or guardian ad litem consistent with the purposes and provisions of this article;

(4) "Private practice of law": The provision of legal representation by a public defender or assistant public defender to a client who is not entitled to receive legal representation under the provisions of this article, but does not include, among other activities, teaching;

(5) "Public defender": The staff attorney employed on a full-time basis by a public defender corporation who, in addition to providing direct representation to eligible clients, has administrative responsibility for the operation of the public defender corporation. The public defender may be a part-time employee if the board of directors of the public defender corporation finds efficient operation of the corporation does not require a full-time attorney and the executive director approves such part-time employment;

(6) "Assistant public defender": A staff attorney providing direct representation to eligible clients whose salary and status as a full-time or part-time employee are fixed by the board of directors of the public defender corporation;

(7) "Public defender corporation": A corporation created under section eight of this article for the sole purpose of providing legal representation to eligible clients; and

(8) "Public defender office": An office operated by a public defender corporation to provide legal representation under the provisions of this article.

§29-21-3. Establishment of Public Defender Services.

There is hereby created an executive agency known as Public Defender Services. The agency shall administer, coordinate and evaluate programs by which the state provides legal representation to indigent persons, monitor the progress of various delivery systems and recommend improvements. The agency shall maintain its office at the state Capitol.

§29-21-3a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-21-3b. Indigent Defense Commission.

(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with regard to the general policies and procedures of the agency, including, but not limited to, the opening, closing, or merging of public defender offices throughout the state and the establishment of performance measures for the qualitative review of indigent defense.

(b) In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall consist of the Executive Director of Public Defender Services, who shall serve as chair, and the following members appointed by the Governor:

(1) One former or retired circuit judge;

(2) Three lawyers, at least one of which is from each congressional district, who have significant experience in the defense of criminal cases or have demonstrated a strong commitment to quality representation of indigent defendants;

(3) One current chief public defender; and

(4) One nonlawyer with a demonstrated commitment to providing legal services to the indigent;

(5) One person who is a member of an organization that advocates on behalf of people with mental illness and developmental disabilities; and

(6) One attorney with significant experience in the defense of juvenile delinquency and abuse and neglect cases.

(c) The commission shall meet at the times and places specified by the call of the chair: Provided, That the commission shall meet no less than four times each year. Members shall serve without compensation but may receive reimbursement of actual and necessary expenses for each day or portion thereof engaged in this discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.

(d) Of the initial appointments made to the commission, two shall be for a term ending one year after the effective date of this section, two for a term ending two years after the effective date of this section, two for a term ending three years after the effective date of this section. Thereafter, terms of office shall be for four years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of his or her appointment until the end of the term for which he or she was appointed or until his or her successor qualifies for office. When a vacancy occurs as a result of death, resignation, or removal in the membership of this commission, it shall be filled by appointment within 30 days of the vacancy for the unexpired portion of the term in the same manner as original appointments. No member shall serve more than two consecutive full or partial terms and no person may be reappointed to the commission until at least two years have elapsed after the completion of a second successive term.

(e) The appointed members of the commission serve four year terms that shall coincide with the term of the Governor.

(f) The commission has the following powers and duties:

(1) To develop standards regarding the qualifications and training for public defenders, assistant public defenders, and staff;

(2) To explore opportunities related to the training of appointed panel attorneys;

(3) To evaluate, on an annual basis, the compensation and caseloads of public defenders and appointed panel attorneys;

(4) To develop standards for providing and compensating expert witnesses, investigators, and other persons who provide services related to legal representation under this article;

(5) To study, monitor, and evaluate existing standards for determining eligibility for legal representation under section sixteen of this article;

(6) To study the feasibility and need of creating additional public defender corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender corporations in accordance with the provisions of section eight of this article;

(7) To study the potential for the dissolution of public defender corporations;

(8) To study, monitor, evaluate, and make recommendations regarding the training, experience, and background necessary for a public defender or panel attorney to competently represent indigent defendants in capital cases; and

(9) To monitor and make recommendations regarding the following activities of the board of directors of each public defender corporation receiving funding pursuant to this article:

(A) The appointment of the public defender and any assistant public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;

(B) The fixing of professional and clerical salaries pursuant to subdivision (2), subsection (c), section fifteen of this article; and

(C) The removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance, or nonfeasance pursuant to subdivision (3), subsection (c), section fifteen of this article.

§29-21-4. Purpose and duties of Public Defender Services.

The agency shall have as its principal purpose the development and improvement of programs by which the state provides legal representation to indigent persons.

§29-21-5. Executive director.

(a) The Governor shall appoint, by and with the advice and consent of the Senate, the executive director of Public Defender Services, who shall serve at the will and pleasure of the Governor. The executive director shall be a qualified administrator as determined by the Governor, and shall be a member of the bar of the Supreme Court of Appeals. In addition to the executive director there shall be such other employees as the executive director determines to be necessary. The executive director shall have the authority to promulgate rules, and shall have such other authority and perform such duties as may be required or necessary to effectuate this article. The executive director shall provide supervision and direction to the other agency employees in the performance of their duties.

(b) The executive director's annual salary shall be as determined by the Legislature.

§29-21-6. Powers, duties, and limitations.

(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations, and nonprofit organizations for the purpose of providing legal representation under this article and may make any other grants and contracts that are necessary to carry out the purposes and provisions of this article.

(b) The agency is authorized to accept and employ or dispose of in furtherance of the purposes of this article any money or property, real, personal, or mixed, tangible or intangible, received by gift, devise, bequest, or otherwise.

(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided in §29-21-7 of this code. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance related to the delivery of legal representation; and to engage in research, except that broad general, legal, or policy research unrelated to direct representation of eligible clients may not be undertaken.

(d) The agency shall establish and the executive director or his or her designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. The accounting and auditing division shall review all plans and proposals for grants and contracts and shall make a recommendation of approval or disapproval to the executive director. The accounting and auditing division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection, or monitoring of public defender corporations and other grantees, contractors, persons, or entities receiving financial assistance under this article and shall further carry out the agency’s responsibilities for records and reports as set forth in §29-21-18 of this code. The accounting and auditing division shall require each public defender corporation to submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time used in administration of the respective offices, so as to compare the time to similar time expended in nonpublic law offices for similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency’s divisions. This assistance shall include, but not be limited to, budget preparation and statistical analysis.

(e) The agency shall establish and the executive director or his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or his or her designee shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts or by the Supreme Court of Appeals. The division may, however, refuse the appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division’s ability to provide effective representation. In order to effectively and efficiently use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain records of representation of eligible clients for record purposes only.

(f) The agency shall establish and the executive director or his or her designee shall operate a division within the agency for the purpose of prosecuting writs of habeas corpus on behalf of eligible clients in the circuit courts of the state and before the Supreme Court of Appeals. The executive director or his or her designee shall be the director of the division. The division shall represent eligible clients upon appointment by a circuit court or the Supreme Court of Appeals. A court may appoint the division to represent an eligible person unless the appointment would create a conflict of interest or the executive director has notified the court in writing that the division’s existing caseload cannot be increased for a specified period of time without jeopardizing its ability to provide effective representation. In appointing the division, a court should determine whether the appointment of the division is the most effective use of the office considering the grounds and legal issues raised by the petitioner. The executive director may select and employ staff attorneys, paraprofessionals, and investigators to perform the duties prescribed by this subsection. The division shall maintain records of representation of eligible clients for record-keeping purposes only.

(g) If the executive director, with the approval of the Indigent Defense Commission and the Secretary of Administration, determines that the purposes of this article can be furthered and costs reduced by the execution of a contract with a provider of legal services in specialized areas of the law, other than criminal defense or the representation of respondent parents in abuse and neglect proceedings, to provide legal representation to eligible clients, the execution of the contract is authorized and is exempt from the provisions of, and procedures adopted pursuant to, §5A-3-1 et seq. of this code. The payment of the contract amount is authorized from the funds appropriated for the payment of appointed counsel fees.

(h) The agency may reduce or reject vouchers or requests for payment submitted pursuant to §29-21-13a of this code found not to be in compliance with the provisions of this article, subject to the limitations set forth herein.

(i) The executive director may promulgate emergency rules pursuant to §29A-3-15 of this code to effectuate the provisions of this article as amended during the 2019 regular session of the Legislature.

§29-21-7. Criminal law research center established; functions.

(a) Within the agency, there shall be a division known as the criminal law research center which may:

(1) Undertake research, studies and analyses and act as a central repository, clearinghouse and disseminator of research materials;

(2) Prepare and distribute a criminal law manual and other materials and establish and implement standard and specialized training programs for attorneys practicing criminal law;

(3) Provide and coordinate continuing legal education programs and services for attorneys practicing criminal law; and

(4) Prepare, supplement and disseminate indices and digests of decisions of the West Virginia Supreme Court of Appeals and other courts, statutes and other legal authorities relating to criminal law.

(b) The services of the criminal law research center shall be offered at reasonable rates or by subscription to prosecuting attorneys and their professional staffs, panel attorneys, and private attorneys engaged in the practice of criminal law. The services may be provided to public defender corporations, public defenders and assistant public defenders at reduced rates.

§29-21-8. Public defender corporations; establishment thereof.

(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation, merger or dissolution of a public defender corporation in a judicial circuit where the creation, merger or dissolution of such a public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation, merger or dissolution of a public defender corporation in accordance with this subsection, the commission shall provide a report to the Legislature pursuant to subsection (g), section three-b of this article for approval of the creation, merger, or dissolution of any public defender corporation.

(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.

(b) If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate, merge or dissolve a corporation in a judicial circuit of the state, pursuant to subsection (a) of this section, the Indigent Defense Commission shall first consult with and give substantial consideration to the recommendation of the judge of a single-judge circuit or the chief judge of a multijudge circuit.

§29-21-9. Panel attorneys.

(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who are available to serve as counsel for eligible clients. An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients by informing the court. An agreement to accept cases generally or certain types of cases particularly may not prevent a panel attorney from declining an appointment in a specific case.

(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge: Provided, That in family court contempt cases, the family court judge shall appoint an attorney-at-law when required, in the following order of preference:

(1) In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless an appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation;

(2) If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel;

(3) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;

(4) If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment;

(5) If the adjoining public defender office does not accept the appointment, the judge may appoint a panel attorney from an adjoining circuit; or

(6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit.

(c) In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court's reasons for doing so.

§29-21-10.

Repealed.

Acts, 2008 Reg. Sess., Ch. 117.

§29-21-11.

Repealed.

Acts, 2008 Reg. Sess., Ch. 117.

§29-21-12.

Repealed.

Acts, 2008 Reg. Sess., Ch. 117.

§29-21-13. Approval of public defender corporation funding applications; funding; recordkeeping by public defender corporations.

(a) On or before May 1 of each year, each active public defender corporation shall submit to the executive director and the commission a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and annual budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with the board of directors of each public defender corporation, prepare a plan for providing legal services, execute a funding contract for the fiscal year and commit funds for that purpose.

(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article. At the discretion of the executive director, when caseloads increase or unusual expenses occur, funding contracts may be amended during a fiscal year if necessary to provide cost effective representation.

(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.

(d) All recipients of funding under this article shall maintain such records as required by the executive director.

§29-21-13a. Compensation and expenses for panel attorneys.

(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and which records are to be maintained in a form that will enable the attorney to determine for any day the periods of time expended in tenths of an hour on behalf of any eligible client and the total time expended in tenths of an hour on that day on behalf of all eligible clients: Provided, That in no event may panel attorneys be required to maintain or submit the actual start and finish times of work performed.

(b) Upon completion of each case, exclusive of appeal, panel attorneys shall submit to Public Defender Services a voucher for services. Public Defender Services shall electronically acknowledge the submission of a voucher. Claims for fees and expense reimbursements shall be submitted to Public Defender Services on forms approved by the executive director. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than 90 business days after the last date of service shall be rejected unless, for good cause, the appointing court authorizes in writing an extension.

(c) Public Defender Services shall review the voucher to determine if the time and expense claims are reasonable, necessary, and valid. A voucher found to be correct shall be processed and payment promptly directed within 45 business days of submission of the voucher.

(d)(1) If Public Defender Services rejects a voucher, the attorney submitting the voucher shall be notified electronically of the rejection and provided detailed reasons for the rejection within 30 business days of submission of the voucher. The attorney may resubmit the voucher accompanied by copies of his or her records supporting the voucher and certification from the appointing court that the services or expenses were performed or incurred, and were reasonable and necessary, within 15 business days of receipt of notification. The executive director shall make a final agency decision regarding the rejection of the voucher within 15 business days of receipt of the submitted records and certification. Under no circumstances may the executive director have the authority or require any panel attorney to submit privileged client information. (2) If the final agency decision is to reject the voucher, Public Defender Services shall request review of the final agency decision by motion to the appointing court filed within 15 business days of notice of the final agency decision. After a hearing providing the attorney and Public Defender Services an opportunity to be heard, the appointing court shall have final authority to resolve the issue of payment and to order all remedies available under the West Virginia Rules of Civil Procedure.

(e) If Public Defender Services reduces the amount of compensation claimed or reimbursement requested, the attorney submitting the voucher shall be notified electronically of the reduction and detailed reasons for the reduction within 30 business days of the submission of the voucher. The attorney may:

(1) Agree with the reduction and certify his or her agreement electronically to Public Defender Services which shall then proceed to process payment; or

(2) Disagree with the reduction and request payment of the reduced amount while preserving the ability to contest the reduction;

(3) An attorney proceeding pursuant to this subsection shall inform Public Defender Services of his or her decision by electronic means within 15 business days of receipt of the notice of reduction. If there is no communication from the attorney within 15 business days of receipt of the notice of reduction, then the reduction is deemed to be accepted by the attorney;

(4) The attorney may submit records and certification from the appointing court that the services or expenses reflected in the amount reduced were performed or incurred and were reasonable and necessary. The executive director shall then make a final agency decision regarding the reduction within 15 business days of receipt of the submitted records and certification. Under no circumstances may the executive director have the authority to require any panel attorney to submit privileged client information;

(5) If the attorney disagrees with the final agency decision, and the attorney and the executive director cannot reach an agreement regarding the reduction within 15 business days of the receipt of the notice of the final agency decision, Public Defender Services shall request review of the final agency decision by motion to the appointing court filed within 15 business days of notice of the final agency decision. After a hearing providing the attorney and Public Defender Services an opportunity to be heard, the appointing court shall have final authority to resolve the issue of payment, and to order all remedies available under the West Virginia Rules of Civil Procedure;

(6) If there is no communication from Public Defender Services within 30 business days of the submission of the voucher, the voucher is deemed to have been approved for payment without reduction.

(f) Notwithstanding any provisions of this code to the contrary, the executive director may employ in-house counsel to represent Public Defender Services in hearings held pursuant to this article.

(g) Except for the emergency rule-making provision set forth in §29-21-6(h) of this code, the provisions of the amendments to this article enacted during the 2019 regular session of the Legislature shall be effective July 1, 2019.

(h) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.

(i) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by Public Defender Services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.

(j) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:

(1) For attorney's work performed out of court, compensation shall be at the rate of $60 per hour.

Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings, and prehearing or pretrial research;

(2) For attorney's work performed in court, compensation shall be at the rate of $80 per hour.

In-court work includes, but is not limited to, all time spent awaiting hearing or trial before a judge, magistrate, special master, or other judicial officer;

(3) Compensation for legal services performed for a panel attorney by a paralegal out-of-court is to be calculated using a rate of $20 per hour and no such compensation is to be paid for in-court services performed for a panel attorney by a paralegal absent prior approval of the circuit court before whom the panel attorney is appearing and subject to maximum reimbursement amounts set by agency rule;

(4) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, $4,500 unless the court, for good cause shown, approves payment of a larger sum.

(k) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services, and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of $2,500 unless the court, for good cause shown, approves reimbursement of a larger sum.

(l) Expense vouchers shall specifically set forth the nature, amount, and purpose of expenses incurred and shall provide receipts, invoices, or other documentation required by the executive director and the State Auditor as follows:

(1) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in §51-7-4 of this code;

(2) There may be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court trial, where the hearing or trial has also been recorded electronically in accordance with the provisions of §50-5-8 of this code or court rule;

(3) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subdivision (2) of this subsection is limited to $25. Where a transcript of a proceeding is produced, there may be no reimbursement for the expense of any appearance fee;

(4) Except for the appearance fees provided in this subsection, there may be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding;

(5) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court trials is limited to $1 per page;

(6) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the Governor pursuant to the provisions of §12-8-11 of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of §5A-3-48 of this code;

(7) Reimbursement for investigative services is limited to a rate of $30 per hour for work performed by an investigator.

(m) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court, or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.

(n) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered, and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable Public Defender Services to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation, or other provisions of this article or the voucher guidelines established issued pursuant to this article and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.

(o) Vouchers submitted under this section shall be reimbursed within 90 days of receipt. Reimbursements after 90 days shall bear interest from the 91st day at the legal rate in effect for the calendar year in which payment is due.

(p) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.

(q) Upon a dismissal of or a finding of not guilty concerning a criminal charge, should the charge or charges for which the indigent defendant was afforded counsel qualify for an expungement of charges under §61-11-25 of this code, the defendant shall be afforded continued representation upon the terms specified in this section. The Panel Attorney shall include the services performed by panel attorneys in regard to an expungement on the same voucher or a subsequent voucher submitted concerning the same case number as the one submitted to Public Defender Services for the underlying criminal charge or charges. The maximum amount of compensation for out-of-court and in-court work under this section shall be limited to $1,000 for expungement services in addition to the limits imposed on the underlying criminal charge or charges, unless the court, for good cause shown, approves payment of a larger sum. The actual and necessary expenses incurred in providing legal representation for expungement proceedings under this section shall be reimbursed to a maximum of $500 unless the court, for good cause shown, approves reimbursement of a larger sum.

§29-21-14. Limitation on use of funds; exceptions.

(a) Funds made available by the agency to public defender corporations or other entities under this article, either by loan, grant or contract, and funds used for payments to panel attorneys shall be used only to provide legal representation for eligible clients involved in proceedings defined by this article as eligible proceedings.

(b) Funds received from any source other than the agency shall not be used by a public defender corporation for purposes prohibited by this article.

§29-21-14a.

Repealed.

Acts, 1989 Reg. Sess., Ch. 169.

§29-21-14b.

Repealed.

Acts, 1989 Reg. Sess., Ch. 169.

§29-21-15. Public defender corporations -- Board of directors.

(a) The governing body of each public defender corporation shall be a board of directors consisting of persons who are residents of the area to be served by the public defender corporation.

(1) In multicounty circuits, and in the case of multicircuit or regional corporations, the county commission of each county within the area served shall appoint a director, who shall not be an attorney-at-law. The president of each county bar association within the area served shall appoint a director, who shall be an attorney-at-law: Provided, That in a county where there is not an organized and active bar association, the circuit court shall convene a meeting of the members of the bar of the court resident within the county and such members of the bar shall elect one of their number as a director. The Governor shall appoint one director, who shall serve as chairman, who may be an attorney-at-law, unless such appointment would result in there being an even number of directors, in which event the Governor shall appoint two directors, one of whom may be an attorney-at-law. The Governor's appointees shall serve four-year terms which terms shall coincide with the term of the Governor. Appointments may be made for unexpired terms as may be necessary. Other board members' terms shall be as determined by the board.

(2) In single-county circuits, the manner of selecting directors shall be the same as that described in subdivision (1) of this subsection, except that the county commission shall appoint two directors rather than one, and the bar shall appoint two directors rather than one.

(b) The board of directors shall have at least four meetings a year. Timely and effective prior public notice of all meetings shall be given pursuant to rules promulgated in accordance with the provisions of section three, article nine-a, chapter six of this code, and all meetings shall be public except for those concerned with matters properly discussed in executive session.

(c) The board of directors shall establish and enforce broad policies governing the operation of the public defender corporation but shall not interfere with any attorney's professional responsibilities to clients. The duties of the board of directors shall include, but not be limited to, the following:

(1) Appointment of the public defender and any assistant public defenders as may be necessary to enable the public defender corporation to provide legal representation to eligible clients; and

(2) Approval of the public defender corporation's budget and the fixing of professional and clerical salaries: Provided, That the compensation paid to any part-time public defender, part-time assistant public defender or other part-time employee shall not include benefits such as retirement, health insurance or paid leave time for illness or vacation unless Public Defender Services has certified in writing to the board of directors that there exists sufficient funding to provide such benefits and the board of directors authorizes such benefits to be included in the compensation; and

(3) Removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance.

(d) To the extent that the provisions of chapter thirty-one of this code regarding nonprofit corporations are not inconsistent with this article, the provisions of said chapter shall be applicable to the board of directors of the public defender corporation.

(e) While serving on the board of directors, no member may receive compensation from the public defender corporation, but a member may receive payment for normal travel and other out-of-pocket expenses required for fulfillment of the obligations of membership and may accept appointments to represent eligible clients so long as he or she does not discuss a particular case with any public defender, assistant public defender or other employee of the office governed by the board. Directors may not serve as cocounsel with the public defender or assistant public defender in any matter.

§29-21-16. Determination of maximum income levels; eligibility guidelines; use of form affidavit; inquiry by court; denial of services; repayment; limitation on remedies against affiant.

(a) The agency shall establish and periodically review and update financial guidelines for determining eligibility for legal representation made available under the provisions of this article. The agency shall adopt a financial affidavit form for use by persons seeking legal representation made available under the provisions of this article.

(b) All persons seeking legal representation made available under the provisions of this article shall complete the agency’s financial affidavit form, which shall be considered as an application for the provision of publicly funded legal representation.

(c) Any juvenile shall have the right to be effectively represented by counsel at all stages of proceedings brought under the provisions of §49-4-701 through §49-4-725 of this code. If the juvenile advises the court of his or her inability to pay for counsel, the court shall require the juvenile’s parent or custodian to execute a financial affidavit. If the financial affidavit demonstrates that neither of the juvenile’s parents, or, if applicable, the juvenile’s custodian, has sufficient assets to pay for counsel, the court shall appoint counsel for the juvenile. If the financial affidavit demonstrates that either of the juvenile’s parents, or, if applicable, the juvenile’s custodian, does have sufficient assets to pay for counsel, the court shall order the parent, or, if applicable, the custodian, to provide, by paying for, legal representation for the juvenile in the proceedings.

 The court may disregard the assets of the juvenile’s parents or custodian and appoint counsel for the juvenile, as provided in this section, if the court concludes, as a matter of law, that the juvenile and the parent or custodian have a conflict of interest that would adversely affect the juvenile’s right to effective representation of counsel, or concludes, as a matter of law, that requiring the juvenile’s parent or custodian to provide legal representation for the juvenile would otherwise jeopardize the best interests of the juvenile.

(d) In any circuit in which there exists a trial court administrator, the office of the administrator shall make determinations of indigency. In circuits in which a public defender office is in operation and a trial court administrator does not exist, all determinations of indigency shall be made by a public defender office employee designated by the executive director.  In circuits in which no trial court administrator or public defender office is in operation, circuit judges shall make all determinations of eligibility. The determinations shall be made after a careful review of the financial affidavit submitted by the person seeking representation. The review of the affidavit shall be conducted in accord with the financial eligibility guidelines established by the agency pursuant to subsection (a) of this section. In addition to the financial eligibility guidelines, the person determining eligibility shall consider other relevant factors, including, but not limited to, those set forth in subdivisions (1) through (9), subsection (e) of this section. If there is substantial reason to doubt the accuracy of information in the financial affidavit, the person determining eligibility may make any inquiries necessary to determine whether the affiant has truthfully and completely disclosed the required financial information.

After reviewing all pertinent matters, the person determining eligibility may find the affiant eligible to have the total cost of legal representation provided by the state, or may find that the total cost of providing representation shall be apportioned between the state and the eligible person. A person whose annual income exceeds the maximum annual income level allowed for eligibility may receive all or part of the necessary legal representation, or a person whose income falls below the maximum annual income level for eligibility may be denied all or part of the necessary legal representation if the person determining eligibility finds the person’s particular circumstances require that eligibility be allowed or disallowed, as the case may be, on the basis of one or more of the nine factors set forth in subsection (e) of this section. If legal representation is made available to a person whose income exceeds the maximum annual income level for eligibility, or if legal representation is denied to a person whose income falls below the maximum annual income level for eligibility, the person determining eligibility shall make a written statement of the reasons for the action and shall specifically relate those reasons to one or more of the factors set forth in subsection (e) of this section.

(e) The following factors shall be considered in determining eligibility for legal representation made available under the provisions of this article:

(1) Current income prospects, taking into account seasonal variations in income;

(2) Liquid assets, assets which may provide collateral to obtain funds to employ private counsel, and other assets which may be liquidated to provide funds to employ private counsel;

(3) Fixed debts and obligations, including federal, state, and local taxes, and medical expenses;

(4) Child care, transportation, and other expenses necessary for employment;

(5) Age or physical infirmity of resident family members;

(6) Whether the person seeking publicly funded legal representation has made reasonable and diligent efforts to obtain private legal representation, and the results of those efforts;

(7) The cost of obtaining private legal representation with respect to the particular matter in which assistance is sought;

(8) Whether the person seeking publicly funded legal representation has posted a cash bond for bail or has obtained release on bond for bail through the services of a professional bondsman for compensation and the amount and source of the money provided for the bond;

(9) The consequences for the individual if legal assistance is denied.

(f) Legal representation requested by the affiant may not be denied, in whole or part, unless the affiant can obtain legal representation without undue financial hardship. A person determined to be ineligible by public defender personnel may have the initial determination reviewed by a local circuit judge who may amend, modify, or rewrite the initial determination. At any stage of the proceedings a circuit court may determine a prior finding of eligibility was incorrect or has become incorrect as the result of the affiant’s changed financial circumstances, and may revoke any prior order providing legal representation. In that event, any attorney previously appointed shall be entitled to compensation under the provisions of law applicable to the appointment for services already rendered.

(g) In the circumstances and manner set forth below, circuit judges may order repayment to the state, through the office of the clerk of the circuit court having jurisdiction over the proceedings, of the costs of representation provided under this article:

(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the court may require that person, and in juvenile cases, may require the juvenile’s parents or custodian, to pay as costs the compensation of appointed counsel, the expenses of the defense, and any other fees and costs authorized by statute;

(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person’s ability to pay, and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case’s conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment if the person’s financial circumstances change;

(3) When a person is ordered to repay costs, the court may order payment to be made immediately or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future;

(4) A person who has been ordered to repay costs, and who is not in contumacious default in the payment thereof, may at any time petition the sentencing court for modification of the repayment order. If it appears to the satisfaction of the court that continued payment of the amount ordered will impose undue hardship on the person or the person’s dependents, the court may modify the method or amount of payment;

(5) When a person ordered to pay costs is also placed on probation or imposition or execution of sentence is suspended, the court may make the repayment of costs a condition of probation or suspension of sentence.

(h) Circuit clerks shall keep a record of repaid counsel fees and defense expenses collected pursuant to this section and shall, quarterly, pay the moneys to the State Auditor who shall deposit the funds in the General Revenue Fund of the state.

(i) The making of an affidavit subject to inquiry under this section does not in any event give rise to criminal remedies against the affiant nor occasion any civil action against the affiant except for the recovery of costs as in any other case where costs may be recovered and the recovery of the value of services, if any, provided pursuant to this article. A person who has made an affidavit knowing the contents of the affidavit to be false may be prosecuted for false swearing as provided by law.

§29-21-17. Private practice of law by public defenders.

(a) No full-time public defender or full-time assistant public defender may engage in any private practice of law except as provided in this section.

(b) A board of directors may permit a newly employed full-time public defender or full-time assistant public defender to engage in the private practice of law for compensation for the sole purpose of expeditiously closing and withdrawing from existing private cases from a prior private practice. In no event shall any person employed for more than ninety days as a full-time public defender or full-time assistant public defender be engaged in any other private practice of law for compensation: Provided, That until January 1, 1993, the prohibition against the private practice of law does not apply to full-time public defenders employed in Class II, III or IV counties as defined by article seven, chapter seven of this code.

(c) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in private practice for compensation if the defender is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction and if the defender remits to the public defender corporation all compensation received.

(d) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in uncompensated private practice of law if the public defender or assistant public defender is acting:

(1) Pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction; or

(2) On behalf of a close friend or family member; or

(3) On behalf of a religious, community or charitable group.

(e) Violation of the requirements of this section is sufficient grounds for immediate summary dismissal regardless of the conditions of employment established by a corporation's board of directors.

§29-21-18. Records and reports.

(a) The agency is authorized to require such reports as it deems necessary from any public defender corporation or other entity or person receiving funding under this article regarding activities carried out pursuant to this article.

(b) The agency is authorized to prescribe the keeping of records with respect to the activities of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article and shall have access to such records at all reasonable times for the purpose of ensuring compliance with the terms and conditions upon which financial assistance was provided.

(c) Copies of all reports pertinent to the evaluation, inspection, or monitoring of any public defender corporation, other grantee, contractor, person or entity receiving financial assistance under this article shall be maintained by the agency for a period of at least five years subsequent to such evaluation, inspection, or monitoring. Such reports shall be available for public inspection during regular business hours, and copies shall be furnished, upon request, to interested parties upon payment of such reasonable fees as the agency may establish.

§29-21-19. Audits.

(a) The accounts of each public defender corporation shall be audited annually as soon as possible after the end of each state fiscal year. Such audits shall be conducted in accordance with generally accepted auditing standards by the State Tax Commissioner.

(b) The audits shall be conducted at the place or places where the accounts of the public defender corporation are normally kept. All books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the public defender corporation and necessary to facilitate the audits shall be made available to the person or persons conducting the audits; and full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to any such person.

(c) The report of the annual audit shall be filed with the agency and shall be available for public inspection during business hours at the principal office of the public defender corporation. The report of each such audit shall be maintained for a period of at least five years at the office of the agency.

§29-21-20. Appointed counsel immune from liability.

Any attorney who provides legal representation under the provisions of this article under appointment by a circuit court, family court or by the Supreme Court of Appeals, and whose only compensation therefor is paid under the provisions of this article, shall be immune from liability arising from that representation in the same manner and to the same extent that prosecuting attorneys are immune from liability.

§29-21-21. Forgiveness of loans; reversion of public defender corporation assets.

All equipment, operational or supplemental loans heretofore made under the former provisions of article twenty-one are forgiven and declared null and void and shall not be an obligation of a public defender corporation formerly established under the previous provisions of article twenty-one, nor an obligation of any successor organization or of the members of any board of directors of any public defender corporation.

§29-21-22.

Repealed.

Acts, 1989 Reg. Sess., Ch. 169.

§29-22-1. Short title.

This article shall be known and may be cited as the "State Lottery Act."

§29-22-2. Legislative findings and intent.

The Legislature finds and declares that the purpose of this article is to establish and implement a state-operated lottery under the supervision of the state Lottery Commission and the director of the state lottery office who shall be appointed by the Governor and hold broad authority to administer the system in a manner which will provide the state with a highly efficient operation.

§29-22-3. Definitions.

(a) "State Lottery Commission" or "commission" means the state Lottery Commission created by this article.

(b) "Director" means the individual appointed by the Governor to provide management and administration necessary to direct the state lottery office.

(c) "Lottery" means the public gaming systems or games established and operated by the state lottery office.

(d) "Lottery tickets" or "tickets" means tickets or other tangible evidence of participation used in lottery games or gaming systems.

§29-22-4. State Lottery Commission created; composition; qualifications; appointment; terms of office; chairman's removal; vacancies; compensation and expenses; quorum; oath and bond.

(a) There is hereby created a State Lottery Commission which shall consist of seven members, all residents and citizens of the state, one who shall be a lawyer, one who shall be a certified public accountant, one who shall be a computer expert, one who shall have not less than five years' experience in law enforcement and one who shall be qualified by experience and training in the field of marketing. The two remaining members shall be representative of the public at large. The commission shall carry on a continuous study and investigation of the lottery throughout the state and advise and assist the director of the state lottery. The commission members shall be appointed by the Governor, by and with the advice and consent of the Senate, no later than July 1, 1985. The terms of members first appointed expire as designated by the Governor at the time of appointment: One at the end of one year; two at the end of two years; one at the end of three years; two at the end of four years; and one at the end of five years. As vacancies occur, appointments to fill vacancies shall be made so that at least three members are appointed from each congressional district. No more than four members of such commission shall belong to the same political party. Members serve overlapping terms of five years and are eligible for successive appointments to the commission. On July 1 of each year, the commission shall select a chairman from its membership. The Governor may remove any commission member for cause, notwithstanding the provisions of §6-6-4 of this code. Vacancies shall be filled in the same manner as the original appointment but only for the remainder of the term. No person convicted of a felony shall be eligible for appointment nor appointed as a commissioner.

(b) The board shall pay each member the same compensation as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of official duties and shall reimburse each member for actual and necessary expenses incurred in the discharge of official duties: Provided, That the per mile rate to be reimbursed shall be the same rate as authorized for members of the Legislature. All such payments shall be made from the State Lottery Fund.

(c) At least one meeting per month shall be held by the commission. Additional meetings may be held at the call of the chairman, director, or majority of the commission members.

(d) A majority of the members constitutes a quorum for the transaction of business, and all actions require a majority vote of the members present.

(e) Before entering upon the discharge of the duties as commissioner, each commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia and shall enter into a bond in the penal sum of $100,000 with a corporate surety authorized to engage in business in this state, conditioned upon the faithful discharge and performance of the duties of the office. The executed oath and bond shall be filed in the office of the Secretary of State.

§29-22-5. State Lottery Commission; powers and duties; cooperation of other agencies.

(a) The commission has the authority to:

(1) Promulgate rules in accordance with chapter twenty-nine-a of this code: Provided, That those rules promulgated by the commission that are necessary to begin the lottery games selected shall be exempted from the provisions of chapter twenty-nine-a of this code in order that the selected games may commence as soon as possible;

(2) Establish rules for conducting lottery games, a manner of selecting the winning tickets and manner of payment of prizes to the holders of winning tickets;

(3) Select the type and number of public gaming systems or games, to be played in accordance with the provisions of this article;

(4) Contract, if deemed desirable, with the educational broadcasting authority to provide services through its microwave interconnection system to make available to public broadcasting stations servicing this state and, at no charge, for rebroadcast to commercial broadcasting stations within this state, any public gaming system or games drawing;

(5) Enter into interstate and international lottery agreements with other states or foreign countries, or any combination of one or more states and one or more foreign countries;

(6) Adopt an official seal;

(7) Maintain a principal office and, if necessary, regional suboffices at locations properly designated or provided;

(8) Prescribe a schedule of fees and charges;

(9) Sue and be sued;

(10) Lease, rent, acquire, purchase, own, hold, construct, equip, maintain, operate, sell, encumber and assign rights of any property, real or personal, consistent with the objectives of the commission as set forth in this article;

(11) Designate one of the deputy directors to serve as acting director during the absence of the director;

(12) Hold hearings on any matter of concern to the commission relating to the lottery, subpoena witnesses, administer oaths, take testimony, require the production of evidence and documentary evidence and designate hearing examiners and employees to so act; and

(13) To make and enter into all agreements and do all acts necessary or incidental to the performance of its duties and the exercise of its powers under this article.

(b) Departments, boards, commissions or other agencies of this state shall provide assistance to the state lottery office upon the request of the director.

(c) Upon the request of the deputy director for the security and licensing division in conjunction with the director, the Attorney General, department of public safety and all other law-enforcement agencies shall furnish to the director and the deputy director such information as may tend to assure the security, honesty, fairness and integrity in the operation and administration of the lottery as they may have in their possession, including, but not limited to, manual or computerized information and data. The director is to designate such employees of the security and licensing division as may be necessary to act as enforcement agents. Such agents are authorized to investigate complaints made to the commission or the state lottery office concerning possible violation of the provisions of this article and determine whether to recommend criminal prosecution. If it is determined that action is necessary, an agent, after approval of the director, is to make such recommendation to the prosecuting attorney in the county wherein the violation occurred or to any appropriate law-enforcement agency.

§29-22-6. Lottery director; appointment; qualifications; oath and bond; salary.

(a) There is hereby created the position of the lottery director whose duties include the management and administration of the state lottery office. The director shall be qualified by training and experience to direct the operations of the lottery, and shall be appointed, within ninety days of the effective date of this article, by the Governor and shall serve at the will and pleasure of the Governor. No person shall be appointed as lottery director who has been convicted of a felony or crime involving moral turpitude.

(b) The director serves on a full-time basis and may not be engaged in any other profession or occupation.

(c) The director:

(1) Shall have a good reputation, particularly as a person of honesty and integrity, and shall favorably pass a thorough background investigation prior to appointment;

(2) The director shall not hold political office in the government of the state either by election or appointment while serving as director;

(3) The director shall be a citizen of the United States and must become a resident of the state within ninety days of appointment;

(4) The director shall receive an annual salary as provided for by the Governor; and

(5) The director and his or her executive secretary are ineligible for civil service coverage as provided in section four, article six, chapter twenty-nine of this code.

(d) Before entering upon the discharge of the duties as director, the director shall take and subscribe to the oath of office prescribed in section 5, article IV of the Constitution of West Virginia and shall enter into a bond in the penal sum of $100,000 with a corporate surety authorized to engage in business in this state, conditioned upon the faithful discharge and performance of the duties of the office. The executed oath and bond shall be filed in the office of the Secretary of State.

§29-22-7. Divisions of the state lottery office.

There shall be established within the state lottery office a security and licensing division; a personnel, data processing, accounting and administration division; and a marketing, education and information division. Each division shall be under the supervision of a deputy director who shall administer and coordinate the operation of authorized activities in the respective division. Each deputy director shall have had three years management experience in areas pertinent to his prospective responsibilities and an additional three years of experience in the same field.

§29-22-8. Lottery director; powers and duties; deputy directors; hiring of staff; civil service coverage; submission of proposed appropriations.

(a) The director shall have the authority to:

(1) Appoint, with the approval of the commission, a deputy director for each of the divisions established in this article. The deputy directors appointed shall serve at the will and pleasure of the director at an annual salary established by the commission. Deputy directors shall not be eligible for civil service coverage as provided in §29-6-4 of this code;

(2) The director shall hire, pursuant to the approval of the commission, such professional, clerical, technical, and administrative personnel as may be necessary to carry out the provisions of this article. Each person employed by the commission shall execute an authorization to allow an investigation of that person’s background: Provided, That the director and the commission shall apply §29-22-8(d) and §29-22-8(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the occupation being sought.

(3) Designate the number and types of locations at which tickets may be sold.

(b) Effective July 1, 1986, all employees of the commission, except as otherwise provided herein, shall be in the classified service under the provisions of §29-6-1 et seq. of this code.

(c) The director shall, pursuant to the approval of the commission, prepare and submit the annual proposed appropriations for the commission to the Governor.

(d) The director and the Lottery Commission may not disqualify an applicant from initial employment because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity required for employment. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the director and the Lottery Commission shall consider at a minimum:

(1) The nature and seriousness of the crime for which the individual was convicted;

(2) The passage of time since the commission of the crime;

(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(4) Any evidence of rehabilitation or treatment undertaken by the individual.

(e) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from employment because of a prior criminal conviction, the director and the Lottery Commission shall permit the applicant to apply for initial employment if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from employment, to be determined by the Lottery Commission.

(f) An individual with a criminal record who has not previously applied for employment may petition the Lottery Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining employment. This petition shall include sufficient details about the individual’s criminal record to enable the Lottery Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Lottery Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Lottery Commission may charge a fee to recoup its costs for each petition.

§29-22-9. Initiation and operation of lottery; restrictions; prohibited themes, games, machines, or devices; distinguishing numbers; winner selection; public drawings; witnessing of results; testing and inspection of equipment; price of tickets; claim for and payment of prizes; invalid, counterfeit tickets; estimated prizes and odds of winning; participant bound by lottery rules and validation procedures; security procedures; additional games; electronic and computer systems.

(a) The commission shall initiate operation of the state lottery on a continuous basis at the earliest feasible and practical time, first initiating operation of the preprinted instant winner type lottery. The lottery shall be initiated and shall continue to be operated so as to produce the maximum amount of net revenues to benefit the public purpose described in this article consonant with the public good. Other state government departments, boards, commissions, agencies, and their officers shall cooperate with the Lottery Commission so as to aid the Lottery Commission in fulfilling these objectives.

(b) The commission shall promulgate rules and regulations specifying the types of lottery games to be conducted by the lottery. These rules and regulations shall provide that:

(1) No lottery may use the results of any amateur or professional sporting event, dog race, or horse race to determine the winner except as authorized under §29-22D-1 et seq. of this code.

(2) Electronic video lottery systems must include a central site system of monitoring the lottery terminals utilizing an online or dial-up inquiry.

(3) In a lottery utilizing a ticket, each ticket shall bear a unique number distinguishing it from each other ticket.

(4) No lottery utilizing a machine may use machines which dispense coins or currency.

(5) Selection of the winner must be predicted totally on chance.

(6) Any drawings or winner selections shall be held in public and witnessed by an independent accountant designated by the director for such purposes.

(7) All lottery equipment and materials shall be regularly inspected and tested, before and after any drawings or winner selections, by independent qualified technicians.

(8) The director shall establish the price for each lottery and determine the method of selecting winners and the manner of payment of prizes, including providing for payment by the purchase of annuities for prizes payable in installments.

(9) All claims for prizes shall be examined and no prize shall be paid as a result of altered, stolen, or counterfeit tickets or materials, or which fail to meet validation rules or regulations established for a lottery. No prize shall be paid more than once and, in the event of a binding determination by the commission that more than one person is entitled to a particular prize, the sole remedy of the claimants shall be the award to each of them of an equal share in the single prize.

(10) A detailed tabulation of the estimated number of prizes of each particular prize denomination that are expected to be awarded in each lottery, or the estimated odds of winning such prizes shall be printed on any lottery ticket, where feasible, or in descriptive materials, and shall be available at the offices of the commission.

(11) No prizes shall be paid which are invalid and not contemplated by the prize structure of the lottery involved.

(12) By purchasing a ticket or participation in a lottery, a participant agrees to abide by, and be bound by, the lottery rules which apply to the lottery or game play involved. An abbreviated form of such rules may appear on tickets and shall appear on descriptive materials and shall be available at the offices of the commission. A participant in a lottery agrees that the determination of whether the participant is a valid winner is subject to the lottery or game play rules and the winner validation tests established by the commission. The determination of the winner by the commission shall be final and binding upon all participants in a lottery and shall not be subject to review or appeal.

(13) The commission shall institute such security procedures as it deems necessary to ensure the honesty and integrity of the winner selection process for each lottery. All such security and validation procedures and techniques shall be, and remain, confidential and shall not be subject to any discovery procedure in any civil, judicial, administrative, or other proceeding, nor subject to the provisions of §29B-1-1 et seq. of this code.

(c) The commission shall proceed with operation of such additional lottery games, including the implementation of games utilizing a variety of existing or future technological advances at the earliest feasible date. The commission may operate lottery games utilizing electronic computers and electronic computer terminal devices and systems, which systems must include a central site system of monitoring the lottery terminals utilizing direct communication systems, or other technological advances and procedures, ensuring honesty and integrity in the operation of the lottery.

§29-22-9a. Veterans instant lottery scratch-off game.

(a) Beginning September 1, 2000, the commission shall establish an instant lottery scratch-off game designated as the veterans benefit game, which is offered by the lottery.

(b) Notwithstanding the provisions of section eighteen of this article, all net profits received from the sale of veterans benefit game lottery tickets, materials and games are deposited with the state Treasurer into the Veterans Lottery Fund created under subsection (c) of this section. The Legislature may make appropriations from this fund for operational costs from moneys remaining in the Veterans Lottery Fund after the acquisition, design, construction, equipping, furnishing, including, without limitation, the payment of debt service on bonds issued to finance the foregoing, have been paid. Funds from the Veterans Lottery Fund for the acquisition, design, construction, equipping, furnishing, including, without limitation, the payment of debt service on bonds issued to finance the construction of a veterans nursing home and/or veterans cemetery, shall be transferred to the Veterans Nursing Home Building Fund and the Veterans Cemetery Fund upon written request of the Director of the Division of Veterans Affairs to the Investment Management Board and the state Treasurer in accordance with the provisions of this section. Once the payment of the principal and interest, any required operational costs and architectural and other project costs associated with construction are paid in full for the construction and operation of the initial veterans skilled nursing facility or veterans cemetery, the Legislature may appropriate from the fund created under this section moneys for the construction, including the architectural fees and other associated costs, equipping and operation of additional skilled nursing facilities and/or cemeteries for veterans of the Armed Forces of the United States Military: Provided, That in addition to the payment of the above-mentioned items, funds may be deposited in the Veterans Cemetery Fund created in section eleven-a, article one, chapter nine-a of this code and, thereafter, the Legislature may appropriate any excess funds to the General Revenue Fund.

(c) There is hereby created in the state Treasury a special revenue fund designated and known as the Veterans Lottery Fund which shall consist of all revenues derived from the veterans benefit game and any appropriations to the fund by the Legislature and all interest or other returns earned from investment of the fund.

(d) There is hereby created in the state Treasury a special revenue fund designated and known as the Veterans Nursing Home Building Fund which shall consist of all funds for the acquisition, design, construction, equipping, furnishing, including, without limitation, the payment of debt service on bonds issued to finance the foregoing. Following the selection of the architect, the director shall certify the estimated total cost of the architect and all construction and associated costs to the Joint Committee on Government and Finance prior to the transfer of funds for construction. If funds transferred exceed the estimated costs certified to the joint committee, the director shall certify the additional costs to the joint committee.

(e) There is hereby created in the state Treasury a special revenue fund designated and known as the Veterans Nursing Home Debt Service Fund to which the required funding from the Veterans Nursing Home Building Fund is transferred to refund revenue bonds to pay the principal, interest, redemption premium and coverage ratio requirement, if any, on the revenue bonds issued under the provisions of section seven, article twenty-nine-a, chapter sixteen of this code. The Veterans Nursing Home Debt Service Fund has first priority to all funds in the Veterans Nursing Home Building Fund established herein not otherwise designated or specified by the donor. Beginning on or before July 28, 2003, and continuing until June 28, 2035, the Treasurer shall allocate to the Veterans Nursing Home Debt Service Fund from the Veterans Nursing Home Building Fund, as a first priority, an amount equal to one tenth of the projected annual principal, interest, redemption premium and coverage ratio requirement on any and all revenue bonds and refunding bonds issued, or to be issued, on or after July 1, 2003, under the provisions of said section in connection with a veterans nursing home as certified to the Treasurer and the Investment Management Board by the Director of the Division of Veterans Affairs. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Veterans Nursing Home Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

(f) The commission shall change the design or theme of the veterans benefit game regularly so that the game remains competitive with the other instant lottery scratch-off games offered by the commission. The tickets for the instant lottery game created in this section shall clearly state that the profits derived from the game are being used to benefit veterans in this state.

§29-22-10. Licensed lottery sales agents; restrictions; annual license and fee; factors; application; bond; age; nonassignable license; organizations qualified; commissions; display of license; geographic distribution; monopoly prohibited; lottery retailers; preprinted instant type lottery tickets; fee; certificate of authority; security; bond.

(a) The commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the licensing of lottery sales agents for the sale and dispensing of lottery tickets, materials and lottery games, and the operations of electronic computer terminals therefor, subject to the following:

(1) The commission shall issue its annual license to the lottery sales agents for each lottery outlet and for a fee established by the commission to cover its costs, but not to exceed $1,000. Application for licensing as a lottery sales agent shall be on forms prescribed and furnished by the director;

(2) No licensee may engage in business exclusively as a lottery sales agent;

(3) The commission shall ensure geographic distribution of lottery sales agents throughout the state;

(4) Before issuance of a license to an applicant, the commission shall consider factors such as the financial responsibility, security, background, accessibility of the place of business or activity to the public, public convenience and the volume of expected sales;

(5) No person under the age of twenty-one may be licensed as an agent. No licensed agent may employ any person under the age of eighteen for sales or dispensing of lottery tickets or materials or operation of a lottery terminal;

(6) A license is valid only for the premises stated on the license;

(7) The director may issue a temporary license when determined necessary;

(8) A license is not assignable or transferable;

(9) Before a license is issued, an agent shall be bonded for an amount and in the form and manner determined by the director, or shall provide other security, in an amount, form and manner determined by the director, that will ensure the performance of the agent's duties and responsibilities as a licensed lottery agent or the indemnification of the commission;

(10) The commission may issue licenses to any legitimate business, organization, person or entity, including, but not limited to, civic or fraternal organizations; parks and recreation commissions or similar authorities; senior citizen centers, state-owned stores, persons lawfully engaged in nongovernmental business on state property, persons lawfully engaged in the sale of alcoholic beverages; political subdivisions or their agencies or departments, state agencies, commission-operated agencies; persons licensed under the provisions of article twenty-three, chapter nineteen of this code; and religious, charitable or seasonal businesses;

(11) Licensed lottery sales agents shall receive seven percent of gross sales as commission for the performance of their duties: Provided, That a portion of the commission not to exceed one and one quarter percent of gross sales may be paid from unclaimed prize moneys accumulated under section sixteen of this article. In addition, the commission may promulgate a bonus-incentive plan as additional compensation not to exceed one percent of annual gross sales. The method and time of payment shall be determined by the commission;

(12) Licensed lottery sales agents shall prominently display the license on the premises where lottery sales are made; and

(13) No person or entity or subsidiary, agent or subcontractor of that person or entity may receive or hold more than twenty-five percent of the licenses to act as licensed lottery sales agent in any one county or municipality nor more than five percent of the licenses issued throughout this state: Provided, That the limitations of twenty-five percent and five percent in this subdivision do not apply if it is determined by the commission that there are not a sufficient number of qualified applicants for licenses to comply with these requirements.

(b) The commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code specifying the terms and conditions for contracting with lottery retailers for sale of preprinted instant type lottery tickets and may provide for the dispensing of the tickets through machines and devices. Tickets may be sold or dispensed in any public or private store, operation or organization, without limitation. The commission may establish an annual fee not to exceed $50 for those persons, per location or site, and shall issue a certificate of authority to act as a lottery retailer to them. The commission shall establish procedures to ensure the security, honesty and integrity of the lottery and distribution system. The commission shall establish the method of payment, commission structure, methods of payment of winners, including payment in merchandise and tickets, and may require prepayment by lottery retailers, require bond or security for payment and require deposit of receipts in accounts established therefor. Retailers shall prominently display the certificate of authority issued by the commission on the premises where lottery sales are made.

§29-22-11. Prohibited acts; restrictions on sales agents and retailers; unauthorized sales; sales to minors; gifts to minors; prizes to commission officers and staff prohibited; criminal penalties for prohibited acts.

(a) No person may sell lottery tickets or materials unless authorized by the commission to so act. No person may perform the functions of a licensed lottery sales agent unless licensed by the commission. No person may perform the functions of a lottery retailer unless authorized therefor by the commission. No person may sell a lottery ticket or material at a price greater than that established by the commission; except, that nothing in this section may be construed to prevent any person from giving a lottery ticket or material to another as a gift or bonus. No person other than a licensed lottery sales agent or an employee thereof, while acting within the scope of such employment, shall sell lottery tickets, and then only on the premises stated on the license.

(b) No ticket shall be sold to any person under the age of eighteen years. This section does not prohibit the purchase of a ticket by a person eighteen years of age or older for the purpose of making the ticket a gift to a person less than that age.

(c) No ticket may be purchased by and no prizes received by or awarded to any officers or employees of the commission or any member of their immediate household.

(d) Any person who violates the provisions of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50 nor more than $500, or imprisoned in the county jail not more than one year, or both fined and imprisoned.

§29-22-12. Crimes; forgery, counterfeiting, etc. of lottery tickets; penalties.

Any person who, with intent to defraud, falsely makes, alters, forges, utters, passes, or counterfeits a lottery ticket is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000, or be confined in a state correctional facility for not more than one year, or both fined and confined.

§29-22-13. Prohibited acts; conflict of interest; prohibited gifts and gratuities.

(1) The commissioners, the director, the deputy directors and the employees of the lottery may not, directly or indirectly, individually, or as a member of a partnership or as a shareholder of a corporation have an interest in dealing in a lottery.

(2) A member of the commission, the director, and an employee of the lottery or a member of their immediate families may not ask for, offer to accept, or receive any gift, gratuity or other thing of value from any person, corporation, association or firm contracting or seeking to contract with the state to supply gaming equipment or materials for use in the operation of a lottery or from an applicant for a license to sell tickets in the lottery or from a licensee.

(3) A person, corporation, association or firm contracting or seeking to contract with the state to supply gaming equipment or materials for use in the operation of a lottery, an applicant for a license to sell tickets in the lottery or a licensee may not offer a member of the commission, an employee of the lottery, or a member of their immediate families any gift, gratuity or other thing of value.

§29-22-14. Administrative violations of articles; hearing; administrative penalties.

(a) In addition to any criminal penalty imposed under the provisions of this article or any other chapter of this code:

(1) No person shall be appointed, employed or continue to serve in any position or employment with the commission who has been convicted of any violation of this article, or of any felony or any crime related to theft or gambling or involving moral turpitude. The commission shall remove or discharge any person so convicted.

(2) No person shall be licensed as a lottery sales agent nor authorized to act as a lottery retailer who has been convicted of any violation of this article, or of any felony or any crime related to theft or gambling or involving moral turpitude. The commission shall revoke the license or the authority of any person so convicted.

(3) No person shall be permitted to act as vendor to the commission who has been convicted of any violation of this article, or of any felony or any crime related to theft, bribery or gambling or involving moral turpitude. The commission shall deny the privilege of acting as a vendor to the commission for any person so convicted.

(b) Any person aggrieved by any action of the commission under the provisions of this article may in writing to the commission request a hearing which shall be held before the commission or its duly authorized representative. Upon receipt of the request for a hearing, the commission shall set a hearing date within thirty days of the receipt of the request and shall notify the aggrieved party in writing at least seven days in advance of the hearing date of the time, date and place of the hearing. The commission shall issue an order within thirty days after the hearing date, either affirming or reversing the action of the director. The provisions of chapter twenty-nine-a of this code shall apply to such hearings.

(c) After hearing and determination that any provision of this article or rule or regulation of the commission has been violated, the commission may impose a penalty not to exceed $100 per violation.

§29-22-15. Payment of prizes to minors.

If the person entitled to a prize or any winning ticket is under the age of eighteen years, and such prize is less than $5,000, the director may direct payment of the prize by delivery to an adult member of the minor's family or a legal guardian of the minor of a check or draft payable to the order of the minor. If the person entitled to a prize or any winning ticket is under the age of eighteen years, and the prize is $5,000 or more, the director may direct payment to the minor by depositing the amount of the prize in any bank to the credit of an adult member of the minor's family or a legal guardian of the minor as guardian for the minor. The person so named as guardian shall have qualified under and shall have the same duties and powers as a person designated as a guardian in the manner as provided in article ten, chapter forty-four of this code. The commission and director shall be discharged of all further liability upon payment of a prize pursuant to this section.

§29-22-16. Disposition of unclaimed prize money.

Unclaimed prize money for the prize on a winning ticket shall be retained by the director for the person entitled thereto for one hundred eighty days after the drawing in which the prize was won or for one hundred eighty days after the announced end of a game. If no claim is made for said money within one hundred eighty days, the prize money reverts to the state Lottery Fund for the purposes of paying a portion of the sales commission to lottery sales agents pursuant to section ten of this article or for awarding additional prizes. The commission shall promulgate rules for the awarding of additional prizes.

§29-22-17. Lottery proceeds; accounting therefor; deposit into account of State Treasurer; reports; funds to be held in trust; failure to collect, account or deposit; personal liability.

(a) The commission shall establish rules and regulations for accounting for sales of lottery tickets and materials and accounting for all funds from sales and dispensing of lottery tickets, materials and games. Such regulations shall require all licensed lottery sales agents and lottery retailers to deposit in the bank account of the state Treasurer in banks regularly used by said agents or retailers and approved by the director all moneys received by such agents and retailers from the sale of lottery tickets, materials and games, within twenty-four hours of the receipt thereof, and in accordance with the provisions of section two, article two, chapter twelve of the Code of West Virginia, 1931, as amended, unless the director specifies a different time within which the deposit must be made. The State Treasurer shall credit all funds so deposited to the credit of the state Lottery Fund. The director shall require such reports of lottery receipts and transactions in the sale of lottery tickets and materials in such form and containing such information as the director deems necessary.

(b) All funds from the sale of lottery tickets, materials and games are the funds of the state and until deposited in the accounts and in the manner specified by the director are held in trust by the person or entity receiving them for deposit. If a person or entity fails to collect, account for or deposit such funds to the accounts and in the manner specified by the director, such person and entity shall be personally liable for the full amount of such funds. If the person so failing is an association, corporation or other entity, the officers thereof shall be personally liable, jointly and severally, for any default on the part of the association, corporation or entity, and payment may be enforced against them as against the association, corporation or entity.

§29-22-18. State Lottery Fund; appropriations and deposits; not part of general revenue; no transfer of state funds after initial appropriation; use and repayment of initial appropriation; allocation of fund for prizes, net profit and expenses; surplus; State Lottery Education Fund; State Lottery Senior Citizens Fund; allocation and appropriation of net profits.

(a) There is continued a Special Revenue Fund in the State Treasury which shall be designated and known as the State Lottery Fund. The fund consists of all appropriations to the fund and all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. All revenues received from the sale of lottery tickets, materials and games shall be deposited with the State Treasurer and placed into the State Lottery Fund. The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall not be treated by the Auditor and Treasurer as part of the general revenue of the state.

(b) No appropriation, loan or other transfer of state funds may be made to the commission or Lottery Fund after the initial appropriation.

(c) A minimum annual average of forty-five percent of the gross amount received from each lottery shall be allocated and disbursed as prizes.

(d) Not more than fifteen percent of the gross amount received from each lottery may be allocated to and may be disbursed as necessary for fund operation and administration expenses.

(e) The excess of the aggregate of the gross amount received from all lotteries over the sum of the amounts allocated by subsections (c) and (d) of this section shall be allocated as net profit. In the event that the percentage allotted for operations and administration generates a surplus, the surplus shall be allowed to accumulate to an amount not to exceed $250,000. On a monthly basis, the director shall report to the Joint Committee on Government and Finance of the Legislature any surplus in excess of $250,000 and remit to the State Treasurer the entire amount of those surplus funds in excess of $250,000 which shall be allocated as net profit.

(f) After first satisfying the requirements for funds dedicated to the School Building Debt Service Fund in subsection (h) of this section to retire the bonds authorized to be issued pursuant to section eight, article nine-d, chapter eighteen of this code, then satisfying the requirements for funds dedicated to the Education, Arts, Sciences and Tourism Debt Service Fund, in subsection (i) of this section to retire the bonds authorized to be issued pursuant to section eleven-a, article six, chapter five of this code and section sixteen-a, article fifteen, chapter thirty-one of this code, and then satisfying the requirements for funds dedicated to the Community and Technical College Capital Improvement Fund in subsection (j) of this section to retire the bonds for community and technical college capital improvements authorized to be issued pursuant to section eight, article ten, chapter eighteen-b of this code, any and all remaining funds in the State Lottery Fund shall be made available to pay debt service in connection with any revenue bonds issued pursuant to section eighteen-a of this article, if and to the extent needed for such purpose from time to time. The Legislature shall annually appropriate all of the remaining amounts allocated as net profits in subsection (e) of this section, in such proportions as it considers beneficial to the citizens of this state, to: (1) The Lottery Education Fund created in subsection (g) of this section; (2) the School Construction Fund created in section six, article nine-d, chapter eighteen of this code; (3) the Lottery Senior Citizens Fund created in subsection (k) of this section; and (4) the Division of Natural Resources created in section three, article one, chapter twenty of this code and the West Virginia Development Office as created in section one, article two, chapter five-b of this code, in accordance with subsection (l) of this section. No transfer to any account other than the School Building Debt Service Fund, the Education, Arts, Sciences and Tourism Debt Service Fund, the Community and Technical College Capital Improvement Fund, the Economic Development Project Fund created under section eighteen-a, article twenty-two, chapter twenty-nine of this code, or any fund from which debt service is paid under subsection (c), section eighteen-a of this article may be made in any period of time in which a default exists in respect to debt service on bonds issued by the School Building Authority, the State Building Commission, the Higher Education Policy Commission, the Economic Development Authority or which are otherwise secured by lottery proceeds. No additional transfer may be made to any account other than the School Building Debt Service Account and the Education, Arts, Sciences and Tourism Debt Service Fund, and the Community and Technical College Capital Improvement Fund, when net profits for the preceding twelve months are not at least equal to one hundred fifty percent of debt service on bonds issued by the School Building Authority, the State Building Commission, the Higher Education Policy Commission and the Economic Development Authority which are secured by net profits.

(g) There is continued a special revenue fund in the State Treasury which shall be designated and known as the Lottery Education Fund. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which shall be deposited into the Lottery Education Fund by the State Treasurer. The Lottery Education Fund shall also consist of all interest earned from investment of the Lottery Education Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Education Fund from any source. The revenues received or earned by the Lottery Education Fund shall be disbursed in the manner provided below and may not be treated by the Auditor and Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Education Fund to the state system of public and higher education for these educational programs it considers beneficial to the citizens of this state.

(h) On or before the twenty-eighth day of each month, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the School Building Debt Service Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code, as a first priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1994, as certified to the lottery director in accordance with the provisions of section six, article nine-d, chapter eighteen of this code. In no event shall the monthly amount allocated exceed $1.8 million nor may the total allocation of the net profits to be paid into the School Building Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $18 million. In the event there are insufficient funds available in any month to transfer the amount required to be transferred pursuant to this subsection to the School Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $27 million annually, may be granted by the School Building Authority in favor of the bonds it issues which are secured by the net lottery profits. When the school improvement bonds, secured by profits from the lottery and deposited in the School Debt Service Fund, mature, the profits shall become available for debt service on additional school improvement bonds as a first priority from the net profits of the lottery or may at the discretion of the authority be placed into the School Construction Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code.

(i) Beginning on or before July 28, 1996, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds issued in accordance with section eleven-a, article six, chapter five or section sixteen-a, article fifteen, chapter thirty-one of this code are outstanding, the lottery director shall allocate to the Education, Arts, Sciences and Tourism Debt Service Fund, created pursuant to the provisions of section eleven-a, article six, chapter five of this code, as a second priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1996, as certified to the lottery director in accordance with the provisions of section eleven-a, article six, chapter five or section sixteen-a, article fifteen, chapter thirty-one of this code. In no event may the monthly amount allocated exceed $1 million nor may the total allocation paid into the Education, Arts, Sciences and Tourism Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $10 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Education, Arts, Sciences and Tourism Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A second-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $15 million annually, may be granted by the State Building Commission or the Economic Development Authority in favor of the bonds issued in accordance with section eleven-a, article six, chapter five or section sixteen-a, article fifteen, chapter thirty-one of this code.

(j) Beginning on or before July 28, 2008, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Community and Technical College Capital Improvement Fund, created pursuant to section eight, article ten, chapter eighteen-b of this code, as a third priority from net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued or to be issued, on or after April 1, 2008, as certified by the lottery director in accordance with the provisions of that section. In no event may the monthly amount allocated exceed $500,000 nor may the total allocation paid to the Community and Technical Capital Improvement Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $5 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Community and Technical College Capital Improvement Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

(1) A third-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not exceeding $7.5 million annually, may be granted by the Higher Education Policy Commission in favor of the bonds it issues which are secured by the net lottery profits.

(2) When the community and technical college capital improvement bonds secured by profits from the lottery and deposited in the Community and Technical College Capital Improvement Fund mature, the profits shall become available for debt service on additional community and technical college capital improvement bonds as a third priority from the net profits of the lottery.

(3) The Council for Community and Technical College Education shall approve all community and technical college capital improvement projects prior to the distribution of bond proceeds.

(4) Prior to the issuance of community and technical college revenue bonds pursuant to this subsection, the lottery director shall transfer $5 million to the Community and Technical College Improvement Fund, less any amounts needed for initial debt service payments, to be used on a cash basis for community and technical college capital improvements and capital projects.

(k) There is continued a special revenue fund in the State Treasury which shall be designated and known as the Lottery Senior Citizens Fund. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which amounts shall be deposited into the Lottery Senior Citizens Fund by the State Treasurer. The Lottery Senior Citizens Fund shall also consist of all interest earned from investment of the Lottery Senior Citizens Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Senior Citizens Fund from any source. The revenues received or earned by the Lottery Senior Citizens Fund shall be distributed in the manner provided below and may not be treated by the Auditor or Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Senior Citizens Fund to any senior citizens medical care and other programs it considers beneficial to the citizens of this state.

(l) The Division of Natural Resources and the West Virginia Development Office, as appropriated by the Legislature, may use the amounts allocated to them pursuant to subsection (f) of this section for one or more of the following purposes: (1) The payment of any or all of the costs incurred in the development, construction, reconstruction, maintenance or repair of any project or recreational facility, as these terms are defined in section four, article five, chapter twenty of this code, pursuant to the authority granted to it under article five, chapter twenty of this code; (2) the payment, funding or refunding of the principal of, interest on or redemption premiums on any bonds, security interests or notes issued by the parks and recreation section of the Division of Natural Resources under article five, chapter twenty of this code; or (3) the payment of any advertising and marketing expenses for the promotion and development of tourism or any tourist facility or attraction in this state.

§29-22-18a. State Excess Lottery Revenue Fund.

(a) The State Lottery Fund in the State Treasury which is designated and known as the State Excess Lottery Revenue Fund is continued. The fund consists of all appropriations to the fund and all interest earned from investment of the fund and any gifts, grants, or contributions received by the fund. All revenues received under the provisions of §29-22A-10b and §29-22A-10c of this code and under §29-22B-101 et seq., of this code, except the amounts due the commission under §29-22B-1408(a)(1) of this code, shall be deposited in the State Treasury and placed into the State Excess Lottery Revenue Fund. The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall not be treated by the State Auditor and the State Treasurer as part of the general revenue of the state.

(b) For the fiscal year beginning July 1, 2002, the commission shall deposit: (1) $65 million into the subaccount of the State Excess Lottery Revenue Fund hereby created in the State Treasury to be known as the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $10 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in §18C-7-7 of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $20 million into the School Building Debt Service Fund created in §18-9D-6 of this code for the issuance of revenue bonds; (5) $40 million into the West Virginia Infrastructure Fund created in §31-15A-9 of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million into the State Park Improvement Fund for Park Improvements. For the fiscal year beginning July 1, 2003, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $17 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in §18C-7-7 of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $20 million into the School Building Debt Service Fund created in §18-9D-6 of this code for the issuance of revenue bonds; (5) $40 million into the West Virginia Infrastructure Fund created in §31-15A-9 of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $7 million into the State Park Improvement Fund for Park Improvements.

 (c) For the fiscal year beginning July 1, 2004, and subsequent fiscal years through the fiscal year ending June 30, 2009, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $27 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in §18C-7-7 of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $19 million into the School Building Debt Service Fund created in §18-9D-6 of this code for the issuance of revenue bonds: Provided, That for the fiscal year beginning July 1, 2008, and subsequent fiscal years, no moneys shall be deposited in the School Building Debt Service Fund pursuant to this subsection and instead $19 million shall be deposited into the Excess Lottery School Building Debt Service Fund; (5) $40 million into the West Virginia Infrastructure Fund created in §31-15A-9 of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million into the State Park Improvement Fund for Park Improvements. No portion of the distributions made as provided in this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (e) of this section, may be used to pay debt service on bonded indebtedness until after the Legislature expressly authorizes issuance of the bonds and payment of debt service on the bonds through statutory enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or adoption of a resolution that expressly authorizes issuance of the bonds and payment of debt service on the bonds with funds distributed under this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (d) of this section, the distributions may be used only to fund capital improvements that are not financed by bonds and only pursuant to appropriation of the Legislature.

 (d) For the fiscal year beginning July 1, 2009, and subsequent fiscal years, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $29 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in §18C-7-7 of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $19 million into the Excess Lottery School Building Debt Service Fund created in §18-9D-6 of this code; (5) $40 million into the West Virginia Infrastructure Fund created in §31-15A-9 of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million into the State Park Improvement Fund for Park Improvements. No portion of the distributions made as provided in this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (e) of this section, may be used to pay debt service on bonded indebtedness until after the Legislature expressly authorizes issuance of the bonds and payment of debt service on the bonds through statutory enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or adoption of a resolution that expressly authorizes issuance of the bonds and payment of debt service on the bonds with funds distributed under this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (e) of this section, the distributions may be used only to fund capital improvements that are not financed by bonds and only pursuant to appropriation of the Legislature.

(e) The Legislature finds and declares that in order to attract new business, commerce, and industry to this state, to retain existing business and industry providing the citizens of this state with economic security, and to advance the business prosperity of this state and the economic welfare of the citizens of this state, it is necessary to provide public financial support for constructing, equipping, improving, and maintaining economic development projects, capital improvement projects, and infrastructure which promote economic development in this state.

(1) The West Virginia Economic Development Authority created and provided for in §31-15-1 et seq., of this code shall, by resolution, in accordance with the provisions of this article and §31-15-1 et seq., of this code, and upon direction of the Governor, issue revenue bonds of the Economic Development Authority in no more than two series to pay for all or a portion of the cost of constructing, equipping, improving, or maintaining projects under this section or to refund the bonds at the discretion of the authority. Any revenue bonds issued on or after July 1, 2002, which are secured by state excess lottery revenue proceeds shall mature at a time or times not exceeding 30 years from their respective dates. The principal of and the interest and redemption premium, if any, on the bonds shall be payable solely from the special fund provided in this section for the payment.

(2) The special revenue fund named the Economic Development Project Fund into which shall be deposited the amounts to be deposited in the fund as specified in subsections (b), (c), and (d) of this section is continued. The Economic Development Project Fund shall consist of all such moneys, all appropriations to the fund, all interest earned from investment of the fund, and any gifts, grants, or contributions received by the fund. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest, and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section, including any and all commercially customary and reasonable costs and expenses which may be incurred in connection with the issuance, refunding, redemption, or defeasance of the bonds. The West Virginia Economic Development Authority may further provide in the resolution and in the trust agreement for priorities on the revenues paid into the Economic Development Project Fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The bonds issued pursuant to this subsection shall be separate from all other bonds which may be or have been issued, from time to time, under the provisions of this article.

(3) After the West Virginia Economic Development Authority has issued bonds authorized by this section and after the requirements of all funds have been satisfied, including any coverage and reserve funds established in connection with the bonds issued pursuant to this subsection, any balance remaining in the Economic Development Project Fund may be used for the redemption of any of the outstanding bonds issued under this subsection which, by their terms, are then redeemable for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.

(4) Bonds issued under this subsection shall state on their face that the bonds do not constitute a debt of the State of West Virginia; that payment of the bonds, interest, and charges thereon cannot become an obligation of the State of West Virginia; and that the bondholders" remedies are limited in all respects to the Special Revenue Fund established in this subsection for the liquidation of the bonds.

(5) The West Virginia Economic Development Authority shall expend the bond proceeds from the revenue bond issues authorized and directed by this section for projects certified under the provision of this subsection: Provided, That the bond proceeds shall be expended in accordance with the requirements and provisions of §21-5A-1 et seq., of this code and either §5-22-1 et seq., or §5-22A-1 et seq., of this code, as the case may be: Provided, however, That if the bond proceeds are expended pursuant to §5-22A-1 et seq., of this code and if the Design-Build Board created under said article determines that the execution of a design-build contract in connection with a project is appropriate pursuant to the criteria set forth in said article and that a competitive bidding process was used in selecting the design builder and awarding the contract, the determination shall be conclusive for all purposes and shall be considered to satisfy all the requirements of said article.

(6) For the purpose of certifying the projects that will receive funds from the bond proceeds, a committee is hereby established and comprised of the Governor, or his or her designee, the Secretary of the Department of Revenue, the Executive Director of the West Virginia Development Office, and six persons appointed by the Governor: Provided, That at least one citizen member must be from each of the state’s three congressional districts. The committee shall meet as often as necessary and make certifications from bond proceeds in accordance with this subsection. The committee shall meet within 30 days of the effective date of this section.

(7) Applications for grants submitted on or before July 1, 2002, shall be considered refiled with the committee. Within 10 days from the effective date of this section as amended in the year 2003, the lead applicant shall file with the committee any amendments to the original application that may be necessary to properly reflect changes in facts and circumstances since the application was originally filed with the committee.

(8) When determining whether or not to certify a project, the committee shall take into consideration the following:

(A) The ability of the project to leverage other sources of funding;

(B) Whether funding for the amount requested in the grant application is or reasonably should be available from commercial sources;

(C) The ability of the project to create or retain jobs, considering the number of jobs, the type of jobs, whether benefits are or will be paid, the type of benefits involved, and the compensation reasonably anticipated to be paid persons filling new jobs or the compensation currently paid to persons whose jobs would be retained;

(D) Whether the project will promote economic development in the region and the type of economic development that will be promoted;

(E) The type of capital investments to be made with bond proceeds and the useful life of the capital investments; and

(F) Whether the project is in the best interest of the public.

(9) A grant may not be awarded to an individual or other private person or entity. Grants may be awarded only to an agency, instrumentality, or political subdivision of this state or to an agency or instrumentality of a political subdivision of this state.

The project of an individual or private person or entity may be certified to receive a low-interest loan paid from bond proceeds. The terms and conditions of the loan, including, but not limited to, the rate of interest to be paid and the period of the repayment, shall be determined by the Economic Development Authority after considering all applicable facts and circumstances.

(10) Prior to making each certification, the committee shall conduct at least one public hearing, which may be held outside of Kanawha County. Notice of the time, place, date, and purpose of the hearing shall be published in at least one newspaper in each of the three congressional districts at least 14 days prior to the date of the public hearing.

(11) The committee may not certify a project unless the committee finds that the project is in the public interest and the grant will be used for a public purpose. For purposes of this subsection, projects in the public interest and for a public purpose include, but are not limited to:

(A) Sports arenas, fields, parks, stadiums, and other sports and sports-related facilities;

(B) Health clinics and other health facilities;

(C) Traditional infrastructure, such as water and wastewater treatment facilities, pumping facilities, and transmission lines;

(D) State-of-the-art telecommunications infrastructure;

(E) Biotechnical incubators, development centers, and facilities;

(F) Industrial parks, including construction of roads, sewer, water, lighting, and other facilities;

(G) Improvements at state parks, such as construction, expansion, or extensive renovation of lodges, cabins, conference facilities, and restaurants;

(H) Railroad bridges, switches, and track extension or spurs on public or private land necessary to retain existing businesses or attract new businesses;

(I) Recreational facilities, such as amphitheaters, walking and hiking trails, bike trails, picnic facilities, restrooms, boat docking and fishing piers, basketball and tennis courts, and baseball, football, and soccer fields;

(J) State-owned buildings that are registered on the National Register of Historic Places;

(K) Retail facilities, including related service, parking and transportation facilities, appropriate lighting, landscaping, and security systems to revitalize decaying downtown areas; and

(L) Other facilities that promote or enhance economic development, educational opportunities, or tourism opportunities thereby promoting the general welfare of this state and its residents.

(12) Prior to the issuance of bonds under this subsection, the committee shall certify to the Economic Development Authority a list of those certified projects that will receive funds from the proceeds of the bonds. Once certified, the list may not thereafter be altered or amended other than by legislative enactment.

(13) If any proceeds from sale of bonds remain after paying costs and making grants and loans as provided in this subsection, the surplus may be deposited in an account in the State Treasury known as the Economic Development Project Bridge Loan Fund administered by the Economic Development Authority created in §31-15-1 et seq., of this code. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq., of this code and upon fulfillment of the provisions of §5A-2-1 et seq., of this code. Loan repayment amounts, including the portion attributable to interest, shall be paid into the fund created in this subdivision.

(f) If the commission receives revenues in an amount that is not sufficient to fully comply with the requirements of subsections (b), (c), (d), (i), and (m) of this section, the commission shall first make the distribution to the Economic Development Project Fund; second, make the distribution or distributions to the other funds from which debt service is to be paid; third, make the distribution to the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund; and fourth, make the distribution to the General Purpose Account: Provided, That, subject to the provisions of this subsection, to the extent the revenues are not pledged in support of revenue bonds which are or may be issued, from time to time, under this section, the revenues shall be distributed on a pro rata basis.

(g) Each fiscal year, the commission shall, after meeting the requirements of subsections (b), (c), (d), (i) and (m) of this section and after transferring to the State Lottery Fund created under §29-22-18 of this code an amount equal to any transfer from the State Lottery Fund to the Excess Lottery Fund pursuant to §29-22-18(f) of this code, deposit 50 percent of the amount by which annual gross revenue deposited in the State Excess Lottery Revenue Fund exceeds $225 million in a fiscal year in a separate account in the State Lottery Fund to be available for appropriation by the Legislature.

(h) When bonds are issued for projects under subsections (d) and (e) of this section or for the School Building Authority, infrastructure, higher education, or park improvement purposes described in this section that are secured by profits from lotteries deposited in the State Excess Lottery Revenue Fund, the Lottery Director shall allocate first to the Economic Development Project Fund an amount equal to one tenth of the projected annual principal, interest, and coverage requirements on any and all revenue bonds issued, or to be issued as certified to the Lottery Director; and second, to the fund or funds from which debt service is paid on bonds issued under this section for the School Building Authority, infrastructure, higher education, and park improvements an amount equal to one tenth of the projected annual principal, interest, and coverage requirements on any and all revenue bonds issued, or to be issued as certified to the Lottery Director. In the event there are insufficient funds available in any month to transfer the amounts required pursuant to this subsection, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

(i) Prior to the distributions provided in subsection (d) of this section, the Lottery Commission shall deposit into the General Revenue Fund amounts necessary to provide reimbursement for the refundable credit allowable under §11-21-21 of this code.

(j)(1) The Legislature considers the following as priorities in the expenditure of any surplus revenue funds:

(A) Providing salary and/or increment increases for professional educators and public employees;

(B) Providing adequate funding for the Public Employees Insurance Agency; and

(C) Providing funding to help address the shortage of qualified teachers and substitutes in areas of need, both in number of teachers and in subject matter areas.

(2) The provisions of this subsection may not be construed by any court to require any appropriation or any specific appropriation or level of funding for the purposes set forth in this subsection.

(k) The Legislature further directs the Governor to focus resources on the creation of a prescription drug program for senior citizens by pursuing a Medicaid waiver to offer prescription drug services to senior citizens; by investigating the establishment of purchasing agreements with other entities to reduce costs; by providing discount prices or rebate programs for seniors; by coordinating programs offered by pharmaceutical manufacturers that provide reduced cost or free drugs; by coordinating a collaborative effort among all state agencies to ensure the most efficient and cost-effective program possible for the senior citizens of this state; and by working closely with the state’s congressional delegation to ensure that a national program is implemented. The Legislature further directs that the Governor report his or her progress back to the Joint Committee on Government and Finance on an annual basis until a comprehensive program has been fully implemented.

(l) After all of the expenditures in subsections (a) through (i) of this section have been satisfied in any fiscal year, the next $2 million shall be distributed as follows:

(1) On the last day of the fiscal year that begins on July 1, 2010, and for each fiscal year thereafter, 46 percent shall be placed in the general purse fund of a thoroughbred racetrack licensee that did not participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992, for payment of regular purses;

(2) Forty-three and one-half percent shall be distributed to the racing commission special account — unredeemed pari-mutuel tickets, established on behalf of a thoroughbred racetrack licensee that did participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992;

(3) Five and one-half percent shall be distributed to the racing commission special account — unredeemed pari-mutuel tickets, established on behalf of a thoroughbred racetrack licensee that did not participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992; and

(4) Five percent shall be distributed to the racing commission special account – Greyhound Breeding Development Fund.

(m) For the fiscal year beginning July 1, 2019, and subsequent fiscal years, the commission shall deposit $11 million to be distributed into the special funds established by the respective licensees and used for the payment of regular purses in addition to the other amounts provided in §19-23-1 et seq. of this code; such distribution shall be on a pro rata basis based upon the actual purse earnings of each such licensee as specified in §29-22A-10(c)(2) and §29-22A-10b(a)(2) of this code.

§29-22-18b. Definition of term "state employees."

As used in subsection (b), section eighteen-a of this article, the term "state employees" does not include those state employees who are employed within the higher education system of the state or within the judicial or legislative branches of the government of this state.

§29-22-18c. Increase in allocation to Higher education Improvement Fund from State Excess Lottery Revenue Fund.

Notwithstanding any provision of subsection (d), section eighteen-a of this article to the contrary, the deposit of $10 million into the Higher Education Improvement Fund for Higher Education set forth above is for the fiscal year beginning July 1, 2009, only. For the fiscal year beginning July 1, 2010, and subsequent fiscal years, the commission shall deposit $15 million into the Higher Education Improvement Fund for Higher Education.

§29-22-18d. Increase in allocation to West Virginia Infrastructure Fund from State Excess Lottery Revenue Fund.

Notwithstanding any provision of subsection (d), section eighteen-a of this article to the contrary, the deposit of $40 million into the West Virginia Infrastructure Fund set forth above is for the fiscal year beginning July 1, 2010, only. For the fiscal year beginning July 1, 2011, and each fiscal year thereafter, in lieu of the deposits required under subdivision (5), subsection (d), section eighteen-a of this article, the commission shall, first, deposit $6 million into the West Virginia Infrastructure Lottery Revenue Debt Service Fund created in subsection (h), section nine, article fifteen-a, chapter thirty-one of this code, to be spent in accordance with the provisions of that subsection and, second, deposit $40 million into the West Virginia Infrastructure Fund created in subsection (a), section nine, article fifteen-a, chapter thirty-one of this code, to be spent in accordance with the provisions of that article: Provided, That for the fiscal year beginning July 1, 2014, the deposit to the West Virginia Infrastructure Fund shall be $20 million: Provided, however, That notwithstanding the provisions of subsection (a), section ten, article fifteen-a, chapter thirty-one of this code, for the fiscal year beginning July 1, 2014, any moneys disbursed from the West Virginia Infrastructure Fund in the form of grants may not exceed fifty percent of the total funds available for the funding of projects: Provided further, That for the fiscal year beginning July 1, 2015, the deposit to the West Virginia Infrastructure Fund shall be $30 million: And provided further, That notwithstanding the provisions of subsection (a), section ten, article fifteen-a, chapter thirty-one of this code, for the fiscal year beginning July 1, 2015, any moneys disbursed from the West Virginia Infrastructure Fund in the form of grants may not exceed fifty percent of the total funds available for the funding of projects: And provided further, That for the fiscal year beginning July 1, 2016, the deposit to the West Virginia Infrastructure Fund shall be $20 million: And provided further, That notwithstanding the provisions of subsection (a), section ten, article fifteen-a, chapter thirty-one of this code, for the fiscal year beginning July 1, 2016, any moneys disbursed from the West Virginia Infrastructure Fund in the form of grants may not exceed fifty percent of the total funds available for the funding of projects.

§29-22-18e. Increase in allocation to State Park Improvement Fund from State Excess Lottery Revenue Fund to permit the issuance of bonds for improvements to Cacapon Resort State Park and Beech Fork State Park.

Notwithstanding any provision of §29-22-18a(d) of this code to the contrary, the deposit of $5 million into the State Park Improvement Fund is for the fiscal year beginning July 1, 2012, only. For the fiscal year beginning July 1, 2013, and each fiscal year through the fiscal year ending June 30, 2018, in lieu of the deposits required under §29-22-18a(d)(7)of this code, the commission shall first deposit an amount equal to the certified debt service requirement, not to exceed $3 million in any one fiscal year, into the Cacapon and Beech Fork State Park Lottery Revenue Debt Service Fund created in §31-15-16b of this code, to be used in accordance with the provisions of §31-15-16b of this code, and second, deposit $5 million into the State Park Improvement Fund, established in §29-22-18a(d) of this code, to be used in accordance with the provisions of §29-22-18a(d) of this code. For the fiscal year beginning July 1, 2018, and each fiscal year thereafter, in lieu of the deposits required under §29-22-18a(d)(7) of this code, the commission shall first: (1) Deposit an amount equal to the certified debt service requirement, not to exceed $2.1 million in any one fiscal year, into the Cacapon and Beech Fork State Park Lottery Revenue Debt Service Fund created in §31-15-16b of this code, to be used in accordance with the provisions of §31-15-16b of this code; and (2) deposit an amount equal to the certified debt service requirement, not to exceed $5.9 million in any one fiscal year, into the State Parks Lottery Revenue Debt Service Fund created in §31-15-16d of this code and if the certified debt service requirement is less than $5.9 million, deposit an amount equal to the difference between the certified debt service requirement and $5.9 million into the State Park Improvement Fund, established in §29-22-18a(d) of this code, to be used in accordance with the provisions of §29-22-18a(d) of this code: Provided, That the amounts deposited into the State Park Improvement Fund shall not exceed $5 million in aggregate in any one fiscal year.

§29-22-18f. Backup pledge of bonds supported by the State Lottery Fund and the State Excess Lottery Revenue Fund; payment of bond debt service.

(a) Any and all remaining funds in the State Excess Lottery Revenue Fund after payment of debt service pursuant to sections eighteen-a, eighteen-d, and eighteen-e of this article shall be made available to pay debt service in connection with any revenue bonds issued pursuant to section eighteen of this article, if and to the extent needed for such purpose from time to time.

(b) Notwithstanding any other provision of this code to the contrary, after first satisfying the requirements for funds dedicated to pay debt service in accordance with bonds payable from the State Lottery Fund pursuant to section eighteen of this article, any and all remaining funds in the State Lottery Fund shall be made available to pay debt service in connection with revenue bonds issued pursuant to sections eighteen-a, eighteen-d, and eighteen-e, of this article, if and to the extent needed for such purpose from time to time.

(c) Notwithstanding the provisions of subsection (h), section eighteen-a of this article, when bonds are issued for projects under subsection (d) or (e) of section eighteen-a of this article, or for the School Building Authority, infrastructure pursuant to section eighteen-d of this article, higher education, or state park improvements pursuant to section eighteen-e of this article that are secured by profits from lotteries deposited in the State Excess Lottery Revenue Fund, the Lottery Director shall allocate first to the Economic Development Project Fund an amount equal to one tenth of the projected annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued as certified to the Lottery Director; and second, to the fund or funds from which debt service is paid on bonds issued under section eighteen-a of this article for the School Building Authority, infrastructure pursuant to section eighteen-d of this article, higher education, and state park improvements pursuant to section eighteen-e of this article an amount equal to one tenth of the projected annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued as certified to the Lottery Director. In the event there are insufficient funds available in any month to transfer the amounts required pursuant to this subsection, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

§29-22-19. Post audit of accounts and transactions of office.

Before July 1, 2001 and at least every two fiscal years thereafter, the Legislative Auditor shall conduct a post audit of all accounts and transactions of the state lottery office. The cost of the audit shall be paid out of the state Lottery Fund moneys designated for payment of operating expenses. The commission shall have an annual audit performed by an independent certified public accountant, and the audits may be accepted by the Legislative Auditor in lieu of performance of its post audit.

§29-22-20. Monthly and annual reports.

(a) The director shall, upon the twentieth day of each month, provide the Joint Committee on Government and Finance of the Legislature with a report reviewing the lottery operations, including, but not limited to, the amount of gross sales, the amount of net profit, the types of games being played, the number of licensed sales agents, the names and amounts of winners and any other information requested by the Legislature or by the Joint Committee on Government and Finance.

(b) The director shall, no later than the tenth day of each regular session of the Legislature, provide to the Legislature, legislative Auditor, Governor and State Treasurer an annual report focused upon subjects of interest concerning lottery operations, including, but not limited to, an annual financial analysis of the lottery operations, a discussion of the types of games played and revenues generated, a statement of expenditures for the last fiscal year, a summary of the benefit programs and recommendations to the Legislature.

§29-22-21. Officials who may appear at lottery drawing.

No elected or appointed official, other than the members of the Lottery Commission, the director or deputy directors, may preside or appear at any lottery drawing.

§29-22-22.

Repealed.

Acts, 2004 Reg. Sess., Ch. 59.

§29-22-23. Procurement; disclosures by vendors and related persons and entities; authorizing background investigation; unenforceability of contracts in contravention of section.

(a) The commission shall utilize the provisions of article three, chapter five-a of this code in the procurement of all commodities, printing, services and goods, materials, lottery tickets and other items necessary for the commission and lottery, subject to the provisions of subsection (b) of this section.

(b) For the printing of tickets used in any lottery game, any goods or services involving the receiving or recording of number selection of any lottery game, or any goods or services involving the determination of winners on any lottery game, which are hereby referred to as major procurements, the commission shall evaluate the competence, integrity, character, reputation and background of the vendor. To allow for this evaluation, potential vendors shall supply the following information prior to the submission of an initial bid or proposal and on or before July 1, of each year thereafter;

(1) If the vendor is a corporation, the officers, directors and each stockholder in such corporation; except that, in the case of stockholders of publicly held equity securities of a publicly traded corporation, only the names and address of those known to the corporation to own beneficially five percent or more of such securities need be disclosed; and

(2) If the vendor is a partnership or joint venture, all of the general and limited partners or joint venturers; if such general and limited partners or joint venturers are themselves a partnership, joint venture, trust, association, corporation, subsidiary or intermediary corporation, the same information required by this section shall be supplied for such entities also;

(3) If the vendor is a trust, the name of the trustee;

(4) If the vendor is an association, the members, officers and directors; and

(5) If the vendor intends to or does subcontract to another person or entity any integral or substantial portion of the work to be performed in supplying such materials or equipment, then the vendor shall supply the above-mentioned information for all such persons or entities.

(6) The following information shall also be submitted:

(A) Other jurisdictions in which the vendor has contracts to supply gaming materials or equipment and the types of gaming materials or equipment involved therewith;

(B) The details of any felony conviction of a criminal offense, state or federal, of the vendor or any person whose name and address are required by this section;

(C) The details of any disciplinary action of a judicial nature relating to gaming taken by any state or person against the vendor or any person whose name and address are required by this section;

(D) The number of years the vendor has been in the business of supplying gaming materials or equipment;

(E) A disclosure of each state and jurisdiction in which the vendor has been denied, or has had revoked a gaming license of any kind, and the disposition of such in each such state or jurisdiction. If any gaming license has been revoked or has not been renewed or any gaming license application has been either denied or is pending and has remained pending for more than six months, all of the facts and circumstances underlying such failure to receive such license must be disclosed;

(F) A disclosure of the details of any bankruptcy, insolvency, reorganization or any pending litigation relating to gaming of each vendor;

(G) A signed authorization by each vendor and officer thereof allowing the deputy director for security to conduct a background investigation of such person; and

(H) Such other information, accompanied by such documents, as the commission, by rule or contract procurement documents, may require as being necessary or appropriate in the public interest to accomplish the purposes of this section.

(c) No contract for the supply of gaming materials or equipment for use in the operation of the state lottery is enforceable against the state if the provisions of this section are not complied with.

§29-22-24. Disclosures by vendors and related persons and entities of political contributions.

(a) For purposes of this section:

"Vendor" means any person required to make any disclosure under the provisions of section twenty-three of this article.

"Major procurement" has the same meaning as set out in section twenty-three of this article.

(b) Prior to the submission of the initial bid or proposal, and on or before July 1, of each year thereafter, a vendor who is submitting an initial bid or proposal to, or who has submitted such within the preceding twelve months to, or who has a current contract with, the state Lottery Commission or any state agency, board or commission or political subdivision, for any major procurement, shall file with the Secretary of State a detailed itemized disclosure statement, subscribed and sworn to before an officer authorized to administer oaths, setting forth each contribution to any local, state or federal political candidate or political committee in this state, made in the preceding three years, or a statement that no such contributions have been made.

§29-22-25. Preemption of state laws or local regulation.

(a) No state or local law or regulation providing any penalty, disability, restriction, regulation or prohibition for the manufacture, transportation, storage, distribution, advertising, possession or sale of any lottery tickets or materials or for the operation of any lottery shall apply to authorized operations by or for the state lottery or commission.

(b) The provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict herewith: Provided, That nothing herein shall invalidate any zoning law, or Sunday closing law under article ten, chapter sixty-one of this code.

(c) Nothing in this article shall be deemed to permit the operation of any lottery otherwise prohibited by the laws of this state, not owned and operated by this state and permitted by this article.

§29-22-26.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§29-22-27. Penalties for criminal violations.

(a) Any person violating any of the provisions of this article, except sections eleven and twelve of this article, is guilty of a misdemeanor, and, upon conviction thereof, for the first offense, shall be fined not less than one hundred nor more than $500, or imprisoned in the county jail not more than one year, or both fined and imprisoned.

(b) Any person violating any of the provisions of this article, except sections eleven and twelve of this article, shall, for the second offense, be guilty of a felony, and, upon conviction thereof, shall be fined not more than $1,000, or be imprisoned in the penitentiary for not less than one year, or both fined and imprisoned.

§29-22-27a. Payment of prizes to the Bureau for Child Support enforcement.

(a) Upon notification by the Bureau for Child Support enforcement that a person who is entitled to all or part of a lottery prize is delinquent in the payment of child support or spousal support, the director shall forward to the Bureau for Child Support enforcement the prize or portion to be distributed directly from the state lottery office that is available to be applied to the delinquent support payment.

(b) The director shall enter into a written agreement with the Bureau for Child Support enforcement for the purpose of establishing a procedure for the collection of prizes as set forth in subsection (a) of this section. The director shall include in the agreement a method by which the Bureau for Child Support enforcement will receive the names of lottery winners as expeditiously as possible.

§29-22-28. Severability.

If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable.

§29-22-29. Moneys transferred or allocated to nongovernmental entities are state moneys and have been so in the past; right to audit state moneys transferred to nongovernmental entities.

(a) Moneys transferred by the commission under provisions of this article and articles twenty-two-a, twenty-two-b, twenty-two-c and twenty-five of this chapter to nongovernmental recipients, are state moneys and have been state moneys in prior fiscal periods.

(b) All nongovernmental entities that have received state moneys as described in subsection (a) of this section are subject to audit by the commission. An audit provided for by this section may be conducted by employees or agents of the commission. An audit provided for by this section may also be conducted by the Legislative Auditor.

§29-22-30. Methods of payment for lottery prizes.

Notwithstanding any provision of this article or any rule to the contrary, the lottery shall pay a prize to a claimant by check, electronic funds transfer or any other method of payment acceptable to the Federal Reserve System.

§29-22A-1. Short title.

This article shall be known and may be cited as the "Racetrack Video Lottery Act."

§29-22A-2. Legislative findings and declarations.

(a) The Legislature finds and declares that the limited video lottery games authorized by this article are "lotteries" as that term is commonly understood and as that term is used in West Virginia Constitution, article VI, section thirty-six, the video lottery games authorized by this article being lottery games which utilize advanced computer technology; and that the Constitution grants to the Legislature the authority to establish, by general law, the manner of regulation, control, ownership and operation of lottery games in the State of West Virginia.

(b) The Legislature further finds and declares that the state can control, own and operate a video lottery by possessing a proprietary interest in the main logic boards, all erasable, programmable read-only memory chips used in any video lottery equipment or games, and software consisting of computer programs, documentation and other related materials necessary for the video lottery system to be operated. The state may acquire a proprietary interest in video lottery game software, for purposes of this article, through outright ownership or through an exclusive product license agreement with a manufacturer whereby the manufacturer retains copyrighted ownership of the software but the license granted to the state is nontransferable and authorizes the state to run the software program, solely for its own use, on the state's central equipment unit and electronic video terminals networked to the central equipment unit.

(c) The Legislature further finds and declares that the state can control and regulate a video lottery if the state limits licensure to a limited number of video lottery facilities located at qualified horse or dog racetracks, extends strict and exclusive state regulation to all persons, locations, practices and associations related to the operation of licensed video lottery facilities, and provides comprehensive law enforcement supervision of video lottery activities.

(d) The Legislature further finds and declares that since the public has an interest in video lottery operations and since lottery operations conducted pursuant to West Virginia Constitution, article VI, section thirty-six, and under this article represent an exception to the general statutory policy of the state concerning wagering for private gain, participation in a video lottery by a licensee or permittee under this article shall be deemed a privilege conditioned upon the proper and continued qualification of the licensee or permittee and upon the discharge of the affirmative responsibility of each licensee to provide to the regulatory and investigatory authorities established by this article any assistance and information necessary to assure that the policies declared by this article are achieved. Consistent with this policy, it is the intent of this article to preclude the creation of any property right in any license or permit issued by the state under this article, the accrual of any value to the privilege of participation in any video lottery operation, or the transfer of any license or permit, and to require that participation in video lottery operations be solely conditioned upon the individual qualifications of persons seeking such privilege.

(e) The purpose of this article is to define and provide specific standards for the operation of video lottery games at pari-mutuel racing facilities licensed by the state Racing Commission pursuant to article twenty-three, chapter nineteen of this code. The Legislature finds and declares that the existing pari-mutuel racing facilities in West Virginia provide a valuable tourism resource for this state and provide significant economic benefits to the citizens of this state through the provision of jobs and the generation of state revenues; that this valuable tourism resource is threatened because of a general decline in the racing industry and because of increasing competition from racing facilities and lottery products offered by neighboring states; and that the survival of West Virginia's pari-mutuel racing industry is in jeopardy unless modern lottery games are authorized at the racetracks.

§29-22A-3. Definitions.

As used in this article:

(a) "Applicant" means any person applying for any video lottery license or permit.

(b) "Associated equipment" means any hardware located on a licensed racetrack's premises which is connected to the video lottery system for the purpose of performing communication, validation or other functions, but not including the video lottery terminals or the communication facilities of a regulated public utility.

(c) "Background investigation" means a security, criminal and credit investigation of a person, as defined in this section, who has applied for a video lottery license or permit, or who has been granted a video lottery license or permit.

(d) "Central computer," "central control computer" or "central site system" means any central site computer provided to and controlled by the commission to which video lottery terminals communicate for purposes of information retrieval and terminal activation and to disable programs.

(e) "Commission" or "State Lottery Commission" means the West Virginia Lottery Commission created by article twenty-two of this chapter.

(f) "Control" means the authority to direct the management and policies of an applicant or a license or permit holder.

(g) "Costs" means the expenses incurred by the commission in the testing and examination of video lottery terminals and the performance of background investigations and other related activities which are charged to and collected from applicants or license or permit holders.

(h) "Director" means the individual appointed by the Governor to provide management and administration necessary to direct the State Lottery Office.

(i) "Disable" or "terminal disable" means the process of executing a shutdown command from the central control computer which causes video lottery terminals to cease functioning.

(j) "Display" means the visual presentation of video lottery game features on a video lottery terminal in the form of video images, actual symbols or both.

(k) "EPROM" and "erasable programmable read-only memory chips" means the electronic storage medium on which the operation software for all games playable on a video lottery terminal resides and which can also be in the form of CD-ROM, flash RAM or other new technology medium that the commission may from time to time approve for use in video lottery terminals. All electronic storage media are considered to be the property of the State of West Virginia.

(l) "Floor attendant" means a person, employed by a licensed racetrack, who holds a permit issued by the commission and who corrects paper jams and bill jams in video lottery terminals and also provides courtesy services for video lottery players.

(m) "Gross terminal income" means the total amount of cash, vouchers or tokens inserted into the video lottery terminals operated by a licensee, minus the total value of coins and tokens won by a player and game credits which are cleared from the video lottery terminals in exchange for winning redemption tickets.

(n) "License" or "video lottery license" means authorization granted by the commission to a racetrack which is licensed by the West Virginia Racing Commission to conduct thoroughbred or greyhound racing meetings pursuant to article twenty-three, chapter nineteen of this code permitting the racetrack to operate video lottery terminals authorized by the commission.

(o) "Lottery" means the public gaming systems or games established and operated by the State Lottery Commission.

(p) "Manufacturer" means any person holding a permit granted by the commission to engage in the business of designing, building, constructing, assembling or manufacturing video lottery terminals, the electronic computer components of the video lottery terminals, the random number generator of the video lottery terminals, or the cabinet in which it is housed, and whose product is intended for sale, lease or other assignment to a licensed racetrack in West Virginia, and who contracts directly with the licensee for the sale, lease or other assignment to a licensed racetrack in West Virginia.

(q) "Net terminal income" means gross terminal income minus an amount deducted by the commission to reimburse the commission for its actual costs of administering racetrack video lottery at the licensed racetrack. No deduction for any or all costs and expenses of a licensee related to the operation of video lottery games shall be deducted from gross terminal income.

(r) "Noncash prize" means merchandise which a video lottery player may be given the option to receive in lieu of cash in exchange for a winning redemption ticket and which shall be assigned a redemption value equal to the actual cost of the merchandise to the licensed racetrack.

(s) "Own" means any beneficial or proprietary interest in any property or business of an applicant or licensed racetrack.

(t) "Pari-mutuel racing facility," "licensed racetrack," "racetrack" or "track" means a facility where horse or dog race meetings are held and the pari-mutuel system of wagering is authorized pursuant to the provisions of article twenty-three, chapter nineteen of this code: Provided, That, for the purposes of this article, "pari-mutuel racing facility," "licensed racetrack," "racetrack" or "track" includes only a facility which was licensed prior to January 1, 1994, to hold horse or dog race meetings, and which conducts not less than two hundred twenty live racing dates for each horse or dog race meeting or such other number of live racing dates as may be approved by the Racing Commission in accordance with the provisions of section twelve-b, article twenty-three, chapter nineteen of this code.

(u) "Permit" means authorization granted by the commission to a person to function as either a video lottery manufacturer, service technician or validation manager.

(v) "Person" means any natural person, corporation, association, partnership, limited partnership, or other entity, regardless of its form, structure or nature.

(w) "Player" means a person who plays a video lottery game on a video lottery terminal at a racetrack licensed by the commission to conduct video lottery games.

(x) "Service technician" means a person, employed by a licensed racetrack, who holds a permit issued by the commission and who performs service, maintenance and repair on licensed video lottery terminals in this state.

(y) "Video lottery game" means a commission approved, owned and controlled electronically simulated game of chance which is displayed on a video lottery terminal and which:

(1) Is connected to the commission's central control computer by an on-line or dial-up communication system;

(2) Is initiated by a player's insertion of coins, currency, vouchers or tokens into a video lottery terminal, which causes game play credits to be displayed on the video lottery terminal and, with respect to which, each game play credit entitles a player to choose one or more symbols or numbers or to cause the video lottery terminal to randomly select symbols or numbers;

(3) Allows the player to win additional game play credits, coins or tokens based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and the number of free play credits, coins or tokens to be awarded for each winning combination of symbols or numbers or both;

(4) Is based upon computer-generated random selection of winning combinations based totally or predominantly on chance;

(5) Allows a player at any time to simultaneously clear all game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the video lottery terminal; and

(z) "Validation manager" means a person who holds a permit issued by the commission and who performs video lottery ticket redemption services.

(aa) "Video lottery" means a lottery which allows a game to be played utilizing an electronic computer and an interactive computer terminal device, equipped with a video screen and keys, a keyboard or other equipment allowing input by an individual player, into which the player inserts coins, currency, vouchers or tokens as consideration in order for play to be available, and through which terminal device the player may receive free games, coins, tokens or credit that can be redeemed for cash, annuitized payments over time, a noncash prize or nothing, as may be determined wholly or predominantly by chance. "Video lottery" does not include a lottery game which merely utilizes an electronic computer and a video screen to operate a lottery game and communicate the results of the game, such as the game "Travel," and which does not utilize an interactive electronic terminal device allowing input by an individual player.

(bb) "Video lottery terminal" means a commission-approved interactive electronic terminal device which is connected with the commission's central computer system, and which is used for the purpose of playing video lottery games authorized by the commission. A video lottery terminal may simulate the play of one or more video lottery games.

(cc) "Wager" means a sum of money or thing of value risked on an uncertain occurrence.

§29-22A-4. Video lottery games authorized.

The state Lottery Commission is authorized to implement and operate video lottery games at pari-mutuel racing facilities in this state in accordance with the provisions of this article and the applicable provisions of article twenty-two of this chapter. The provisions of article twenty-two of this chapter apply to this article, except in the event of conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two of this chapter.

§29-22A-5. Video lottery terminal requirements; application for approval of a video lottery terminal; testing of video lottery terminals; report of test results; modifications to previously approved models; conformity to prototype; seizure and destruction of terminals.

(a) Video lottery terminals registered with and approved by the commission for use at licensed racetracks may offer video lottery games regulated, controlled, and owned and operated by the commission in accordance with the provisions of this section: Provided, That the Secretary of State shall post on the secretary’s website that the rules for video lottery games that have been approved by the commission are available for review at the office of the commission and provide relevant contact information.

(b) A manufacturer may not sell or lease a video lottery terminal for placement at a licensed racetrack in this state unless the terminal has been approved by the commission. Only manufacturers with permits may apply for approval of a video lottery terminal or associated equipment. The manufacturer shall submit two copies of terminal illustrations, schematics, block diagrams, circuit analysis, technical and operation manuals, and any other information requested by the commission for the purpose of analyzing and testing the video lottery terminal or associated equipment.

(c) The commission may require that two working models of a video lottery terminal be transported to the location designated by the commission for testing, examination, and analysis.

(1) The manufacturer shall pay all costs of testing, examination, analysis, and transportation of such video lottery terminal models. The testing, examination, and analysis of any video lottery terminal model may require dismantling of the terminal and some tests may result in damage or destruction to one or more electronic components of such terminal model. The commission may require that the manufacturer provide specialized equipment or pay for the services of an independent technical expert to test the terminal.

(2) The manufacturer shall pay the cost of transportation of two video lottery terminals to lottery headquarters. The commission shall conduct an acceptance test to determine terminal functions and central system compatibility. If the video lottery terminal fails the acceptance test conducted by the commission, the manufacturer shall make all modifications required by the commission.

(d) After each test has been completed, the commission shall provide the terminal manufacturer with a report containing findings, conclusions, and pass/fail results. The report may contain recommendations for video lottery terminal modification to bring the terminal into compliance with the provisions of this article. Prior to approving a particular terminal model, the commission may require a trial period not in excess of 60 days for a licensed racetrack to test the terminal. During the trial period, the manufacturer may not make any modifications to the terminal model unless such modifications are approved by the commission.

(e) The video lottery terminal manufacturer and licensed racetrack are jointly responsible for the assembly and installation of all video lottery terminals and associated equipment. The manufacturer and licensed racetrack shall not change the assembly or operational functions of a terminal licensed for placement in West Virginia unless a request for modification of an existing video terminal prototype is approved by the commission. The request must contain a detailed description of the type of change, the reasons for the change, and technical documentation of the change.

(f) Each video lottery terminal approved for placement at a licensed racetrack must conform to the exact specifications of the video lottery terminal prototype tested and approved by the commission. If any video lottery terminal or any video lottery terminal modification, which has not been approved by the commission, is supplied by a manufacturer and operated by a licensed racetrack, the commission shall seize and destroy all of that licensed racetrack’s and manufacturer’s noncomplying video lottery terminals and shall suspend the license and permit of the licensed racetrack and manufacturer.

§29-22A-6. Video lottery terminal hardware and software requirements; hardware specifications; software requirements for randomness testing; software requirements for percentage payout; software requirements for continuation of video lottery game after malfunction; software requirements for play transaction records.

(a) The commission may approve video lottery terminals and in doing so shall take into account advancements in computer technology, competition from nearby states and the preservation of jobs in the West Virginia pari-mutuel racing industry. In approving video lottery terminals licensed for placement in this state, the commission shall ensure that the terminals meet the following hardware specifications:

(1) Electrical and mechanical parts and design principles may not subject a player to physical hazards or injury.

(2) A surge protector shall be installed on the electrical power supply line to each video lottery terminal. A battery or equivalent power back-up for the electronic meters shall be capable of maintaining accuracy of all accounting records and terminal status reports for a period of one hundred eighty days after power is disconnected from the terminal. The power back-up device shall be located within the locked logic board compartment of the video lottery terminal.

(3) An on/off switch which controls the electrical current used in the operation of the terminal shall be located in an accessible place within the interior of the video lottery terminal.

(4) The operation of each video lottery terminal may not be adversely affected by any static discharge or other electromagnetic interference.

(5) A minimum of one electronic or mechanical coin acceptor or other means accurately and efficiently to establish credits shall be installed on each video lottery terminal. Each video lottery terminal may also contain bill acceptors for any legal United States currency. All coin and bill acceptors shall be approved by the commission prior to use on any video lottery terminal in this state.

(6) Access to the interior of a video lottery terminal shall be controlled through a series of locks and seals.

(7) The main logic boards and all erasable programmable read-only memory chips (EPROMS) are considered to be owned by the commission and shall be located in a separate locked and sealed area within the video lottery terminal.

(8) The cash compartment shall be located in a separate locked area within or attached to the video lottery terminal.

(9) No hardware switches, jumpers, wire posts or any other means of manipulation may be installed which alter the pay tables or payout percentages in the operation of a game. Hardware switches on a video lottery terminal to control the terminal's graphic routines, speed of play, sound and other purely cosmetic features may be approved by the commission.

(10) Each video lottery terminal shall contain a single printing mechanism capable of printing an original ticket and retaining an exact legible copy within the video lottery terminal or other means of capturing and retaining an electronic copy of the ticket data as approved by the commission: Provided, That such printing mechanism is optional on any video lottery terminal which is designed and equipped exclusively for coin or token payouts. The following information shall be recorded on the ticket when credits accrued on a video lottery terminal are redeemed for cash:

(i) The number of credits accrued;

(ii) Value of the credits in dollars and cents displayed in both numeric and written form;

(iii) Time of day and date;

(iv) Validation number; and

(v) Any other information required by the commission.

(11) A permanently installed and affixed identification plate shall appear on the exterior of each video lottery terminal and the following information shall be on the plate:

(i) Manufacturer of the video lottery terminal;

(ii) Serial number of the terminal; and

(iii) Model number of the terminal.

(12) The rules of play for each game shall be displayed on the video lottery terminal face or screen. The commission may reject any rules of play which are incomplete, confusing, misleading or inconsistent with game rules approved by the commission. For each video lottery game there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of numbers or symbols. A video lottery terminal may allow the amounts of minimum and maximum wagers on a single game to be determined by licensee or permit holder in the exercise of its business judgment subject to the approval of the commission. All information required by this subdivision shall be displayed under glass or another transparent substance. No stickers or other removable devices shall be placed on the video lottery terminal screen or face without the prior approval of the commission.

(13) Communication equipment and devices shall be installed to enable each video lottery terminal to communicate with the commission's central computer system by use of a communications protocol provided by the commission to each permitted manufacturer, which protocol shall include information retrieval and terminal activation and disable programs, and the commission may require each licensed racetrack to pay the cost of a central site computer as a part of the licensing requirement.

(14) All video lottery terminals shall have a security system which temporarily disables the gaming function of the terminal while opened.

(b) Each video lottery terminal shall have a random number generator to determine randomly the occurrence of each specific symbol or number used in video lottery games. A selection process is random if it meets the following statistical criteria:

(1) Chi-square test. -- Each symbol or number shall satisfy the ninety-nine percent confidence level using the standard chi-square statistical analysis of the difference between the expected result and the observed result.

(2) Runs test. -- Each symbol or number may not produce a significant statistic with regard to producing patterns of occurrences. Each symbol or number is random if it meets the ninety-nine percent confidence level with regard to the runs test for the existence of recurring patterns within a set of data.

(3) Correlation test. -- Each pair of symbols or numbers is random if it meets the ninety-nine percent confidence level using standard correlation analysis to determine whether each symbol or number is independently chosen without regard to another symbol or number within a single game play.

(4) Serial correlation test. -- Each symbol or number is random if it meets the ninety-nine percent confidence level using standard serial correlation analysis to determine whether each symbol or number is independently chosen without reference to the same symbol or number in a previous game.

(c) Each video lottery terminal shall meet the following maximum and minimum theoretical percentage payout during the expected lifetime of the terminal:

(1) Video lottery games shall pay out no less than eighty percent and no more than ninety-five percent of the amount wagered. The theoretical payout percentage will be determined using standard methods of probability theory.

(2) Manufacturers must file a request and receive approval from the commission prior to manufacturing for placement in this state video lottery terminals programmed for a payout greater than ninety-two percent of the amount wagered. Commission approval shall be obtained prior to applying for testing of the high payout terminals.

(3) Each terminal shall have a probability greater than one in seventeen million of obtaining the maximum payout for each play.

(d) Each video lottery terminal shall be capable of continuing the current game with all current game features after a video lottery terminal malfunction is cleared. If a video lottery terminal is rendered totally inoperable during game play, the current wager and all credits appearing on the video lottery terminal screen prior to the malfunction shall be returned to the player.

(e) Each video lottery terminal shall at all times maintain electronic accounting regardless of whether the terminal is being supplied with electrical power. Each meter shall be capable of maintaining a total of no less than eight digits in length for each type of data required. The electronic meters shall record the following information:

(1) Number of coins inserted by players or the coin equivalent if a bill acceptor is being used or tokens or vouchers are used;

(2) Number of credits wagered;

(3) Number of total credits, coins and tokens won;

(4) Number of credits paid out by a printed ticket;

(5) Number of coins or tokens won, if applicable;

(6) Number of times the logic area was accessed;

(7) Number of times the cash door was accessed;

(8) Number of credits wagered in the current game;

(9) Number of credits won in the last complete video lottery game; and

(10) Number of cumulative credits representing money inserted by a player and credits for video lottery games won but not collected.

(f) No video lottery terminal may have any mechanism which allows the electronic accounting meters to clear automatically. Electronic accounting meters may not be cleared without the prior approval of the commission. Both before and after any electronic accounting meter is cleared, all meter readings shall be recorded in the presence of a commission employee.

(g) The primary responsibility for the control and regulation of any video lottery games and video lottery terminals operated pursuant to this article rests with the commission.

(h) The commission shall, directly or through a contract with a third-party vendor other than the video lottery licensee, maintain a central site system of monitoring the lottery terminals utilizing an on-line or dial-up inquiry. The central site system shall be capable of monitoring the operation of each video lottery game or video lottery terminal operating pursuant to this article and, at the direction of the director, immediately disable and cause not to operate any video lottery game and video lottery terminal. As provided in this section, the commission may require the licensed racetrack to pay the cost of a central site computer as part of the licensing requirement.

§29-22A-7. License and permit qualifications; individual qualifications; applicant required to furnish information; waiver of liability; oath or affirmation; duty to provide accurate and material information.

(a) No video lottery license or permit may be granted unless the commission has determined that the applicant satisfies all of the following qualifications:

(1) An applicant for a video lottery license must hold a valid racing license granted by the West Virginia Racing Commission under provisions of §19-23-1 et seq. of this code.

(2) An applicant must be a person of good character and integrity.

(3) An applicant must be a person whose background, including criminal record, reputation, and associations, does not pose a threat to the security and integrity of the lottery or to the public interest of the state. All new applicants for licenses and permits issued by the commission shall furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation: Provided, That the Lottery Commission shall apply §29-22A-7(g) and §29-22A-7(h) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license or permit being sought.

(4) An applicant must be a person who demonstrates the business ability and experience necessary to establish, operate, and maintain the business for which a video lottery license or permit application is made.

(5) An applicant must be a person who has secured adequate financing for the business for which a video lottery license or permit application is made. The commission shall determine whether financing is from a source which meets the qualifications of this section and is adequate to support the successful performance of the duties and responsibilities of the licensed racetrack or permit holder. An applicant for a video lottery license shall disclose all financing or refinancing arrangements for the purchase, lease, or other acquisition of video lottery terminals and associated equipment in the degree of detail requested by the commission. A licensed racetrack shall request commission approval of any change in financing or lease arrangements at least 30 days before the effective date of the change.

(6) A racetrack applying for a video lottery license or a license renewal must present to the commission evidence of the existence of an agreement, regarding the proceeds from video lottery terminals, between the applicant and the representative of a majority of the horse owners and trainers, the representative of a majority of the pari-mutuel clerks and the representative of a majority of the breeders or the representative of a majority of the kennel owners for the applicable racetrack who hold permits required by §19-23-2 of this code.

(7) A racetrack applying for a video lottery license or a license renewal must file with the commission a copy of any current or proposed agreement between the applicant and any manufacturer for the sale, lease, or other assignment to the racetrack of video lottery terminals, the electronic computer components of the terminals, the random number generator of the terminals, or the cabinet in which it is housed. Once filed with the commission, the agreement is a public document subject to the provisions of §29B-1-1 et seq. of this code.

(b) No video lottery license or permit may be granted to an applicant until the commission determines that each person who has control of the applicant meets all applicable qualifications of subsection (a) of this section. The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company, or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation.

(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or whom the commission determines to have the ability to control the applicant.

(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant’s business operation.

(c) Applicants must furnish all information, including financial data and documents, certifications, consents, waivers, individual history forms, and other materials requested by the commission for purposes of determining qualifications for a license or permit. No video lottery license or permit may be granted to an applicant who fails to provide information and documentation requested by the commission. The burden of proving qualification for any video lottery license or permit is on the applicant.

(d) Each applicant bears all risks of adverse public notice, embarrassment, criticism, damages, or financial loss which may result from any disclosure or publication of any material or information obtained by the commission pursuant to action on an application. The applicant shall, as a part of its application, expressly waive any and all claims against the commission, the State of West Virginia and the employees of either for damages as a result of any background investigation, disclosure, or publication relating to an application for a video lottery license or permit.

(e) All application, registration, and disclosure forms and other documents submitted to the commission by or on behalf of the applicant for purposes of determining qualification for a video lottery license or permit shall be sworn to or affirmed before an officer qualified to administer oaths.

(f) An applicant who knowingly fails to reveal any fact material to qualification or who knowingly submits false or misleading material information is ineligible for a video lottery license or permit.

(g) The Lottery Commission may not disqualify an applicant from an initial license or permit because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring a license or permit. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the Lottery Commission shall consider at a minimum:

(1) The nature and seriousness of the crime for which the individual was convicted;

(2) The passage of time since the commission of the crime;

(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(4) Any evidence of rehabilitation or treatment undertaken by the individual.

(h) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from a license or permit because of a prior criminal conviction, the Lottery Commission shall permit the applicant to apply for an initial license or permit if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from a license or permit, to be determined by the Lottery Commission.

(i) An individual with a criminal record who has not previously applied for a license or permit may petition the Lottery Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or permit. This petition shall include sufficient details about the individual’s criminal record to enable the Lottery Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Lottery Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Lottery Commission may charge a fee to recoup its costs for each petition.

§29-22A-8. Form of application; local option elections; issuance of license; notice of incomplete application; notice of license or permit denial, suspension or revocation; procedure for review of license or permit denial, suspension or revocation; fees, renewal fees and renewal dates; bonding; renewal of licenses and permits; notice of change affecting license or permit; license or permit not transferrable or assignable.

(a) The commission shall determine the form of applications to be used and shall not consider incomplete applications. The commission may consider an application when the applicant has completed and executed all forms and documents required by the commission and all application fees and costs have been paid.

(b) The question of whether video lottery games shall be permitted at pari-mutuel racetracks shall be determined by local option election in each county in which a pari-mutuel racetrack is located. The local option election on this question may be placed on the ballot in each county at any general election. The county commission of the county in which the racetrack is located shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.

On the local option election ballot shall be printed the following:

Shall West Virginia Lottery Commission video lottery games be permitted within an area at the [name of racetrack] in which pari-mutuel betting is authorized by law?

[ ] Yes [ ] No

(Place a cross mark in the square opposite your choice.)

The ballots shall be counted, returns made and canvassed as in general elections, and the results certified by the commissioners of election to the county commission. The county commission shall, without delay, certify the result of the election to the commission.

(c) Upon receipt of the results of the election from the county commission, and if a majority has voted "yes", the commission shall issue the requested license if the applicant is otherwise qualified for the license. If a majority has voted "no", the commission shall notify the applicant of the results, the application shall be denied, and another election on the issue shall not be held for a period of two years: Provided, That for purposes of this section, the term "two years" means the interval between a general election and the next general election, and in no event shall it mean or encompass a period of time in excess of one hundred four weeks. If a majority has voted "yes", another local option election on the issue shall 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 horse or dog racetrack is located. The petition may be in any number of counterparts.

The petition shall be in the following form:

Petition For Local Option Election

We, the undersigned legally qualified voters, resident within the county of __________________, do hereby petition that a special election be held within the county of _________________ upon the following question: Shall West Virginia Lottery Commission video lottery games be permitted within an area at the [name of racetrack] in which pari-mutuel betting is authorized by law?

Name Address Date

(Post office or street address)

(d) The commission may not issue any license or permit until background investigations are concluded. The commission shall make an affirmative determination that the applicant is qualified and the applicable license or permit fees have been paid prior to issuing any license or permit.

(e) The commission shall notify the applicant if an application is incomplete and the notification shall state the deficiencies in the application.

(f) The commission shall notify applicants in writing of the denial, suspension or revocation of a permit or license and the reasons for the denial, suspension or revocation in accordance with the provisions of section fifteen of this article.

(g) An applicant may request a hearing to review a license or permit denial, suspension or revocation in accordance with section fifteen of this article.

(h) The following license or permit fees shall be paid annually by each licensed racetrack, or permitted manufacturer, service technician, floor attendant or validation manager:

(1) Racetrack: $1,000

(2) Manufacturer $10,000

(3) Service technician $100

(4) Validation manager: $50

(5) Floor attendant: $50

The fees shall be paid to the commission at the time of license or permit application and on or before July 1, of each year thereafter, at which time the license or permit may be renewed.

(i) An applicant for a video lottery license shall, prior to the issuance of the license, post a bond or irrevocable letter of credit in a manner and in an amount established by the commission. The bond shall be issued by a surety company authorized to transact business in West Virginia and the company shall be approved by the Insurance Commissioner of this state as to solvency and responsibility.

(j) The commission shall renew video lottery licenses and permits annually as of July 1, of each year, if each person seeking license or permit renewal submits the applicable renewal fee, completes all renewal forms provided by the commission, and continues to meet all qualifications for a license or permit.

(k) License and permit holders shall notify the commission of any proposed change of ownership or control of the license or permit holder and of all other transactions or occurrences relevant to license or permit qualification. In order for a license or permit to remain in effect, commission approval is required prior to completion of any proposed change of ownership or control of a license or permit holder.

(l) A license or permit is a privilege personal to the license or permit holder and is not a legal right. A license or permit granted or renewed pursuant to this article may not be transferred or assigned to another person, nor may a license or a permit be pledged as collateral. The purchaser or successor of any license or permit holder shall independently qualify for a license or permit. The sale of more than five percent of a license or permit holder's voting stock, or more than five percent of the voting stock of a corporation which controls the license or permit holder or the sale of a license or permit holder's assets, other than those bought and sold in the ordinary course of business, or any interest therein, to any person not already determined to have met the qualifications of section seven of this article voids the license unless the sale has been approved in advance by the commission.

§29-22A-9. General duties of all video lottery license and permit holders; duties of permitted manufacturers; duties of permitted service technicians; duties of permitted validation managers; duties of floor attendants; duties of licensed racetracks.

(a) All video lottery license and permit holders shall:

(1) Promptly report to the commission any facts or circumstances related to video lottery operations which constitute a violation of state or federal law;

(2) Conduct all video lottery activities and functions in a manner which does not pose a threat to the public health, safety, or welfare of the citizens of this state, and which does not adversely affect the security or integrity of the lottery;

(3) Hold the commission and this state harmless from and defend and pay for the defense of any and all claims which may be asserted against a license or permit holder, the commission, the state or the employees thereof, arising from the license or permit holder’s participation in the video lottery system authorized by this article;

(4) Assist the commission in maximizing video lottery revenues;

(5) Maintain all records required by the commission;

(6) Upon request by the commission, provide the commission access to all records and the physical premises of the business or businesses where the license or permit holder’s video lottery activities occur, for the purpose of monitoring or inspecting the license or permit holder’s activities and the video lottery games, video lottery terminals, and associated equipment; and

(7) Keep current in all payments and obligations to the commission.

(b) Manufacturers shall:

(1) Manufacture terminals and associated equipment for placement in this state in accordance with the specifications and procedures specified in §29-22A-5 and §29-22A-6 of this code;

(2) Manufacture terminals and associated equipment to ensure timely delivery to licensed racetracks;

(3) Maintain and provide an inventory of spare parts to assure the timely repair and continuous operation of licensed video lottery terminals intended for placement in this state;

(4) Provide to licensed racetracks and permitted service technicians technical assistance and training in the service and repair of video lottery terminals and associated equipment so as to assure the continuous authorized operation and play of the video lottery terminals; and

(5) Obtain certification of compliance under the provisions of part 15 of the Federal Communication Commission rules for all video lottery terminals placed in this state.

(c) Service technicians shall:

(1) Maintain all skills necessary for the timely repair and service of licensed video lottery terminals and associated equipment so as to ensure the continued, approved operation of those terminals;

(2) Attend all commission mandated meetings, seminars, and training sessions concerning the repair and maintenance of licensed video lottery terminals and associated equipment; and

(3) Promptly notify the commission of any electronic or mechanical video lottery terminal malfunctions.

(d) Validation managers shall:

(1) Attend all commission mandated meetings, seminars, and training sessions concerning the validation and redemption of video lottery winning tickets and the operation of all ticket validation terminals and equipment;

(2) Maintain all skills necessary for the accurate validation of video lottery tickets; and

(3) Supervise video lottery ticket validation procedures at the applicable licensed racetrack.

(e) Floor attendants shall:

(1) Provide change and assistance to persons playing video lottery games in a licensed racetrack video lottery gaming area;

(2) Open video lottery terminal access doors to clear ticket paper jams and to insert new paper ticket tapes into the video lottery terminals; and

(3) Open video lottery terminal access doors to clear bill jams from the bill acceptors in video lottery terminals.

(f) The specific duties required of all licensed racetracks are as follows:

(1) Acquire video lottery terminals by purchase, lease, or other assignment and provide a secure location for the placement, operation, and play of the video lottery terminals;

(2) Pay for the installation and operation of commission-approved telephone lines to provide direct dial-up or on-line communication between each video lottery terminal and the commission’s central control computer;

(3) Permit no person to tamper with or interfere with the operation of any video lottery terminal;

(4) Ensure that telephone lines from the commission’s central control computer to the video lottery terminals located at the licensed racetrack are at all times connected and prevent any person from tampering or interfering with the operation of the telephone lines;

(5) Ensure that video lottery terminals are within the sight and control of designated employees of the licensed racetrack;

(6) Ensure that video lottery terminals are placed and remain placed in the specific locations within the licensed racetrack which have been approved by the commission. No video lottery terminal or terminals at a racetrack shall be relocated without the prior approval of the commission;

(7) Monitor video lottery terminals to prevent access to or play by persons who are under the age of 18 years or who are visibly intoxicated;

(8) Maintain at all times sufficient change and cash in the denominations accepted by the video lottery terminals;

(9) Accept no credit card or debit card from a player for the exchange or purchase of video lottery game credits or for an advance of coins or currency to be utilized by a player to play video lottery games, and extend no credit, in any manner, to a player so as to enable the player to play a video lottery game;

(10) Pay for all credits won upon presentment of a valid winning video lottery ticket;

(11) Report promptly to the manufacturer and the commission all video lottery terminal malfunctions and notify the commission of the failure of a manufacturer or service technician to provide prompt service and repair of such terminals and associated equipment;

(12) Conduct no video lottery advertising and promotional activities without the prior written approval of the director;

(13) Install, post, and display prominently at locations within or about the licensed racetrack, signs, redemption information, and other promotional material as required by the commission;

(14) Permit video lottery to be played only during those hours established and approved by the commission;

(15) Maintain general liability insurance coverage for all video lottery terminals in an amount of at least $2 million per claim;

(16) Promptly notify the commission in writing of any breaks or tears to any logic unit seals;

(17) Assume liability for lost or stolen money from any video lottery terminal; and

(18) Submit an audited financial statement, which has been approved by the commission, to the commission when applying for a license or permit and annually thereafter prior to the time a license or permit may be renewed.

§29-22A-10. Accounting and reporting; commission to provide communications protocol data; distribution of net terminal income; remittance through electronic transfer of funds; establishment of accounts and nonpayment penalties; commission control of accounting for net terminal income; settlement of accounts; manual reporting and payment may be required; request for reports; examination of accounts and records.

(a) The commission shall provide to manufacturers, or applicants applying for a manufacturer’s permit, the protocol documentation data necessary to enable the respective manufacturer’s video lottery terminals to communicate with the commission’s central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.

(b) The gross terminal income of a licensed racetrack shall be remitted to the commission through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. Licensed racetracks must provide the commission 30 days’ advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the commission:

(1) The commission shall deduct an amount sufficient to reimburse the commission for its actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack and the resulting amount after the deduction is the net terminal income. The amount deducted for administrative costs and expenses of the commission may not exceed four percent of gross terminal income: Provided, That any amounts deducted by the commission for its actual costs and expenses that exceeds its actual costs and expenses shall be deposited into the State Lottery Fund. For the fiscal years ending June 30, 2011 through June 30, 2030, the term "actual costs and expenses" may include transfers of up to $9 million in surplus allocations for each fiscal year, as calculated by the commission when it has closed its books for the fiscal year, to the Licensed Racetrack Modernization Fund created by subdivision (2), of this subsection. For all fiscal years beginning on or after July 1, 2001, the commission shall not receive an amount of gross terminal income in excess of the amount of gross terminal income received during the fiscal year ending on June 30, 2001, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income received during the fiscal year ending on June 30, 2001, shall be deposited into the fund established in §29-22-18a of this code; and

(2) A Licensed Racetrack Modernization Fund is created within the lottery fund. For all fiscal years beginning on or after July 1, 2011, and ending with the fiscal year beginning July 1, 2030, the commission shall deposit such amounts as are available according to subdivision (1) of this subsection into a separate facility modernization account maintained within the Licensed Racetrack Modernization Fund for each racetrack. Each racetrack’s share of each year’s deposit shall be calculated in the same ratio as each racetrack’s apportioned contribution to the four percent administrative costs and expenses allowance provided for in subdivision (1) of this subsection for that year. For each $2 expended by a licensed racetrack for facility modernization improvements or capital improvements at facilities located in this state that are on or contiguous to the premises of the licensed racetrack, having a useful life of three or more years and placed in service after July 1, 2011, the licensed racetrack shall receive $1 in recoupment from its facility modernization account. If the licensed racetrack’s facility modernization account contains a balance in any fiscal year, the unexpended balance from that fiscal year will be available for matching for one additional fiscal year, after which time, the remaining unused balance carried forward shall revert to the lottery fund. For purposes of this section, the term "facility modernization improvements" includes acquisitions of new and unused video lottery terminals and related equipment, and the term “capital improvements” means real property that is expected to replace or modernize buildings, equipment, machinery and other tangible property used in connection with the operation of the gaming, hospitality, or entertainment at the facility. Video lottery terminals financed through the recoupment provided in this subdivision must be retained by the licensee in its West Virginia licensed location for a period of not less than five years from the date of initial installation.

(c) The amount resulting after the deductions required by subsection (b) of this section constitutes net terminal income that shall be divided as set out in this subsection. For all fiscal years beginning on or after July 1, 2001, any amount of net terminal income received in excess of the amount of net terminal income received during the fiscal year ending on June 30, 2001, shall be divided as set out in §29-22A-10b of this code. The licensed racetrack’s share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses required to be expended by the licensed racetrack in connection with video lottery operations. The division shall be made as follows:

(1) The commission shall receive 30 percent of net terminal income, which shall be paid into the State Lottery Fund as provided in §29-22A-10a of this code;

(2) Until July 1, 2005, 14 percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee, and used for payment of regular purses in addition to other amounts provided for in §19-23-1 et seq. of this code, on and after July 1, 2005, the rate shall be seven percent of net terminal income;

(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:

(A) Beginning July 1, 1999, and thereafter, any amount in excess of the two percent received during the fiscal year 1999 by a county in which a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1999, shall be divided as follows:

(i) The county shall receive 50 percent of the excess amount; and

(ii) The municipalities of the county shall receive 50 percent of the excess amount, said 50 percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and

(B) Beginning July 1, 1999, and thereafter, any amount in excess of the two percent received during the fiscal year 1999 by a county in which a racetrack other than a racetrack described in paragraph (A) of this subdivision is located and where the racetrack has been located in a municipality within the county since on or before January 1, 1999, shall be divided, if applicable, as follows:

(i) The county shall receive 50 percent of the excess amount; and

(ii) The municipality shall receive 50 percent of the excess amount; and

(C) In a county in which a racetrack other than a racetrack described in paragraphs (A) or (B) of this subdivision is located and where the racetrack has been located within that county since on or before January 1, 1999, and where the racetrack is not located in a municipality, the two percent of net terminal income shall be divided, if applicable, as follows:

(i) The county shall receive one percent; and

(ii) The remaining one percent shall be distributed in equal shares to all municipalities located wholly within the county. Per capita population has no effect on distributions under this paragraph;

(4) One percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of the licensed racing association;

(5) The West Virginia Thoroughbred Development Fund created pursuant to §19-23-13b of this code and the West Virginia Greyhound Breeding Development Fund created pursuant to §19-23-10 of this code shall receive an equal share of a total of not less than one and one-half percent of the net terminal income;

(6) The West Virginia Racing Commission shall receive one percent of the net terminal income which shall be deposited and used as provided in §19-23-13c of this code;

(7) A licensee shall receive 46 and one-half percent of net terminal income;

(8)(A) The Tourism Promotion Fund established in §5B-2-12 of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year beginning July 1, 2003, the tourism commission shall transfer from the Tourism Promotion Fund $5 million of the three percent of the net terminal income described in this section and §29-22A-10b of this code into the fund administered by the West Virginia Economic Development Authority pursuant to §31-15-7 of this code, $5 million into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to §5A-4-6 of this code, and $5 million into the Tax Reduction and Federal Funding Increased Compliance Fund; and

(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after June 30, 2004, this three percent of net terminal income and the three percent of net terminal income described in §29-22a-10b(a)(8)(B) of this code shall be distributed as provided in this paragraph as follows:

(i) 1.375 percent of the total amount of net terminal income described in this section and §29-22A-10b of this code shall be deposited into the Tourism Promotion Fund created pursuant to §5B-2-12 of this code;

(ii) 0.375 percent of the total amount of net terminal income described in this section and in §29-22A-10b of this code shall be deposited into the Development Office Promotion Fund created pursuant to §5B-2-3b of this code;

(iii) 0.5 percent of the total amount of net terminal income described in this section and in §29-22A-10b of this code shall be deposited into the Research Challenge Fund created pursuant to §18B-1B-10 of this code;

(iv) 0.6875 percent of the total amount of net terminal income described in this section and in §29-22A-10b of this code shall be deposited into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to §5A-4-6 of this code; and

(v) 0.0625 percent of the total amount of net terminal income described in this section and in §29-22A-10b of this code shall be deposited into the 2004 Capitol Complex Parking Garage Fund administered by the Department of Administration pursuant to §5A-4-5a of this code;

(9)(A) On and after July 1, 2005, seven percent of net terminal income shall be deposited into the Workers’ Compensation Debt Reduction Fund created in §23-2d-5 of this code: Provided, That in any fiscal year when the amount of money generated by this subdivision totals $11 million, all subsequent distributions pursuant to this subdivision shall be deposited in the special fund established by the licensee and used for the payment of regular purses in addition to the other amounts provided in §19-23-1 et seq. of this code;

(B) The deposit of the seven percent of net terminal income into the Workers’ Compensation Debt Reduction Fund pursuant to this subdivision shall expire and not be imposed with respect to these funds and shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to the other amounts provided in §19-23-1 et seq. of this code on and after the first day of the month following the month in which the Governor certifies to the Legislature that: (i) The revenue bonds issued pursuant to §23-2D-1 et seq. of this code have been retired or payment of the debt service provided for; and (ii) that an independent certified actuary has determined that the unfunded liability of the old fund, as defined in chapter 23 of this code, has been paid or provided for in its entirety; and

(10) The remaining one percent of net terminal income shall be deposited as follows:

(A) For the fiscal year beginning July 1, 2003, the veterans memorial program shall receive one percent of the net terminal income until sufficient moneys have been received to complete the veterans memorial on the grounds of the State Capitol Complex in Charleston, West Virginia. The moneys shall be deposited in the State Treasury in the Division of Culture and History special fund created pursuant to §29-1I-3 of this code: Provided, That only after sufficient moneys have been deposited in the fund to complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not more than $20,000 of the one percent of net terminal income provided in this subdivision shall be deposited into a special revenue fund in the State Treasury, to be known as the John F. ‘Jack’ Bennett Fund. The moneys in this fund shall be expended by the Division of Veterans Affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in this state. The Division of Veterans Affairs shall promulgate legislative rules pursuant to the provisions of §29-3-1 et seq. of this code specifying the manner in which the funds are spent, determine the ability of the surviving spouse to pay for the placement of the marker and setting forth the standards to be used to determine the priority in which the veterans’ grave markers will be placed in the event that there are not sufficient funds to complete the placement of veterans’ grave markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, $100,000 of the one percent of net terminal income provided in this subdivision shall be deposited in the special fund in the Division of Culture and History created pursuant to §29-1I-3 of this code and be expended by the Division of Culture and History to establish a West Virginia veterans memorial archives within the Cultural Center to serve as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That $500,000 of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created pursuant to §5A-4-5 of this code, to be used for construction and maintenance of a parking garage on the State Capitol Complex; and the remainder of the one percent of net terminal income shall be deposited in equal amounts in the Capitol Dome and Improvements Fund created pursuant to §5A-4-2 of this code and Cultural Facilities and Capitol Resources Matching Grant Program Fund created pursuant to §29-1-3 of this code.

(B) For each fiscal year beginning after June 30, 2004:

(i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created pursuant to §5A-4-5 of this code, to be used for construction and maintenance of a parking garage on the State Capitol Complex; and

(ii) The remainder of the one percent of net terminal income and all of the one percent of net terminal income described in §29-22A-10b(a)(9)(B) of this code shall be distributed as follows: The net terminal income shall be deposited in equal amounts into the Capitol Dome and Capitol Improvements Fund created pursuant to §5A-4-2 of this code and the Cultural Facilities and Capitol Resources Matching Grant Program Fund created pursuant to §29-1-3 of this code until a total of $1,500,000 is deposited into the Cultural Facilities and Capitol Resources Matching Grant Program Fund; thereafter, the remainder shall be deposited into the Capitol Dome and Capitol Improvements Fund.

(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the gross terminal income from its operation of video lottery machines, to be electronically transferred by the commission on dates established by the commission. Upon a licensed racetrack’s failure to maintain this balance, the commission may disable all of a licensed racetrack’s video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate consistent with the amount charged for state income tax delinquency pursuant to chapter 11 of this code. The interest shall begin to accrue on the date payment is due to the commission.

(e) The commission’s central control computer shall keep accurate records of all income generated by each video lottery terminal. The commission shall prepare and mail to the licensed racetrack a statement reflecting the gross terminal income generated by the licensee’s video lottery terminals. Each licensed racetrack shall report to the commission any discrepancies between the commission’s statement and each terminal’s mechanical and electronic meter readings. The licensed racetrack is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the commission’s billing statement.

(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy, the licensed racetrack shall submit to the commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal’s software. If the meter readings and the commission’s records cannot be reconciled, final disposition of the matter shall be determined by the commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the commission.

(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not operational or the commission notifies licensed racetracks that remittance by this method is required. The licensed racetracks shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.

(h) Licensed racetracks may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the commission. The commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.

(i) The commission has the right to examine all accounts, bank accounts, financial statements, and records in a licensed racetrack’s possession, under its control or in which it has an interest and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the commission.

(j) If a court of competent jurisdiction finds that the provisions of this section as amended and reenacted in 2021 and the provisions of §29-22A-10d of this code conflict and cannot be harmonized, the provisions of §29-22A-10d of this code shall control.

§29-22A-10a. Lottery commission income to be deposited in state lottery fund.

Notwithstanding the provisions of subdivision one, subsection (c), section ten of this article, beginning on July 1, 1995 and continuing thereafter, the net terminal income received by the commission shall be paid into the state Lottery Fund created by section eighteen, article twenty-two of this chapter, to be appropriated by the Legislature: Provided, That income deposited pursuant to this section shall not be subject to the provisions of subsections (b), (c), (d) or (e), section eighteen, article twenty-two of this chapter.

§29-22A-10b. Distribution of excess net terminal income.

(a) For all years beginning on or after July 1, 2001, any amount of net terminal income generated annually by a licensed racetrack in excess of the amount of net terminal income generated by that licensed racetrack during the fiscal year ending on June 30, 2001, shall be divided as follows:

(1) The Commission shall receive forty-one percent of net terminal income, which the Commission shall deposit in the state Excess Lottery Revenue Fund created in §29-22-18a of this code;

(2) Until July 1, 2005, eight percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided in §19-23-1 et seq. of this code; on and after July 1, 2005, the rate shall be four percent of net terminal income;

(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:

(A) Any amount by which the total amount under this section and §29-22A-10(c)(3) of this code is in excess of the two percent received during fiscal year 1999 by a county in which a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1999, shall be divided as follows:

(i) The county shall receive 50 percent of the excess amount; and

(ii) The municipalities of the county shall receive 50 percent of the excess amount, the 50 percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and

(B) Any amount by which the total amount under this section and §29-22A-10(c)(3) of this code is in excess of the two percent received during fiscal year 1999 by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before January 1, 1999, shall be divided, if applicable, as follows:

(i) The county shall receive 50 percent of the excess amount; and

(ii) The municipality shall receive 50 percent of the excess amount; and

(C) In a county in which a racetrack other than a racetrack described in paragraphs (A) or (B) of this subdivision is located and where the racetrack has been located within that county since on or before January 1, 1999, and where the racetrack is not located in a municipality, the two percent of net terminal income shall be divided, if applicable, as follows:

(i) The county shall receive one percent; and

(ii) The remaining one percent shall be distributed in equal shares to all municipalities located wholly within the county. Per capita population has no effect on distributions under this paragraph;

(4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of the licensed racing association;

(5) The West Virginia Thoroughbred Development Fund created under §19-23-13b of this code and the West Virginia greyhound breeding development fund created under §19-23-10 of this code shall receive an equal share of a total of not less than one and one-half percent of the net terminal income.

(6) The West Virginia Racing Commission shall receive one percent of the net terminal income which shall be deposited and used as provided in §19-23-13c of this code;

(7) A licensee shall receive forty-two percent of net terminal income;

(8) The tourism promotion fund established in §5B-2-12 of this code shall receive three percent of the net terminal income: Provided, That for each fiscal year beginning after June 30, 2004, this three percent of net terminal income shall be distributed pursuant to the provisions of §29-22A-10(c)(8)(B) of this code;

(9) (A) On and after July 1, 2005, four percent of net terminal income shall be deposited into the Workers’ Compensation Debt Reduction Fund created in §23-2D-5 of this code: Provided, That in any fiscal year when the amount of money generated by this subdivision together with the total allocation transferred by the operation of §29-22A-10(c)(9) of this code totals $11 million, all subsequent distributions under this subdivision (9) during that fiscal year shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided in §19-23-1 et seq. of this code;

(B) The deposit of the four percent of net terminal income into the Worker’s Compensation Debt Reduction Fund pursuant to this subdivision shall expire and not be imposed with respect to these funds, which shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to the other amounts provided in §19-23-1 et seq. of this code on and after the first day of the month following the month in which the Governor certifies to the Legislature that: (i) The revenue bonds issued pursuant to §23-2D-1 et seq. of this code have been retired or payment of the debt service is provided for; and (ii) that an independent certified actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty-three of this code, has been paid or provided in its entirety; and

(10) (A) One percent of the net terminal income shall be deposited in equal amounts in the capitol dome and improvements fund created under §5A-4-2 of this code and cultural facilities and capitol resources matching grant program fund created under §29-1-3 of this code; and

(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after June 30, 2004, this one percent of net terminal income shall be distributed pursuant to the provisions of §29-22A-10(c)(9)(B)(ii) of this code.

(b) The Commission may establish orderly and effective procedures for the collection and distribution of funds under this section in accordance with the provisions of this section and §29-22A-10 of this code.

§29-22A-10c. Surcharge; Capital Reinvestment Fund.

(a) For all fiscal years beginning on or after July 1, 2001, there shall be imposed a surcharge of ten percent against the excess of total net terminal income generated from a licensed racetrack for that fiscal year over total net terminal income from that licensed racetrack for the fiscal year ending June 30, 2001.

(b) A Capital Reinvestment Fund is hereby created within the Lottery Fund. Forty-two percent of the surcharge amount attributable to each racetrack shall be retained by the commission and deposited into a separate Capital Reinvestment Account for that licensed racetrack. For each dollar expended by a licensed racetrack for capital improvements at the racetrack, at the location of any amenity associated with the licensed racetrack's destination resort facility operations, or at adjacent facilities owned by the licensee, having a useful life of three or more years and placed in service after April 1, 2001, the licensed racetrack shall receive $1 in recoupment from its Capital Reinvestment Fund Account: Provided, That in the case of thoroughbred horse tracks, four cents of every dollar in recoupment shall be reserved into a separate account, which shall only be spent on capital improvements and upgrading to facilities used for the housing and care of horses, facilities located inside the perimeter of the racing surface, including the surface thereof, facilities used for housing persons responsible for the care of horses, and that any such capital improvements and upgrading shall be subject to recoupment under this section only if they have been approved by the Horsemen's Benevolent and Protective Association acting on behalf of the horsemen: Provided, however, That in the case of greyhound race tracks, four cents of every dollar in recoupment shall be spent on capital improvements and upgrading in the kennel area or other areas at the track. If a licensed racetrack's unrecouped capital improvements exceed its capital reinvestment fund account at the end of any fiscal year, the excess improvements may be carried forward to fifteen subsequent fiscal years.

(c) Fifty-eight percent of the surcharge amount plus any moneys remaining in a racetrack's Capital Reinvestment Fund Account at the end of any fiscal year shall be deposited in the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter.

§29-22A-10d. Changes in distribution of net terminal income; distributions from excess lottery fund.

(a) Notwithstanding any provision of subsection (b), section ten of this article to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, the commission may transfer up to $9 million as actual costs and expenses to the Licensed Racetrack Modernization Fund.

(b) Notwithstanding any provision of subsection (c), section ten of this article to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, each distribution, except those distributions to be made pursuant to subdivisions (1), (2), (3), (4), (5) and (7), subsection (c), section ten of this article, shall be reduced by one hundred percent. Payments shall not be made pursuant to section ten of this article, other than those excepted by this subsection, and are made in lieu thereof in an amount to be determined by appropriation from the State Excess Lottery Revenue Fund.

(c) The total amount of reductions resulting from subsection (b) of this section shall be paid into the State Excess Lottery Revenue Fund, created by section eighteen-a, article twenty-two of this chapter. For the fiscal year beginning July 1, 2014, and each fiscal year thereafter, distributions to be made pursuant to subdivisions (2) and (5), subsection (c), section ten of this article shall be reduced by ten percent, and the amounts resulting from the reduction shall be paid into the State Excess Lottery Revenue Fund.

(d) Notwithstanding any other provision of this code to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, moneys deposited to the State Excess Lottery Revenue Fund pursuant to this section shall be expended by the Lottery in accordance with appropriations.

(e) Prior to payment of any appropriation made pursuant to this section, debt service payments payable from the State Excess Lottery Fund shall first be paid in accordance with the provisions of sections eighteen-a, eighteen-d and eighteen-e, article twenty-two of this chapter and in the priority as defined by subsection (c), section eighteen-f, article twenty-two of this chapter.

(f) Notwithstanding any other provision of this code to the contrary, after payment of debt service from the State Excess Lottery Revenue Fund, all other distributions required by section eighteen-a, article twenty-two of this chapter and the distributions appropriated pursuant to this section shall be paid on a pro rata basis.

(g)(1) Except as provided in subdivision (2) of this subsection, notwithstanding the provisions of paragraph (B), subdivision (9), subsection (c), section ten of this article, upon certification of the Governor to the Legislature that an independent actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty-three of this code, has been paid or provided for in its entirety, the transfers made to the Workers’ Compensation Debt Reduction Fund pursuant to paragraph (A), subdivision (9), subsection (c), section ten of this article shall expire and those funds shall remain in the State Excess Lottery Revenue Fund subject to appropriation.

(2)(A) Notwithstanding any provision of subdivision (1) of this subsection or any provision of paragraph (B), subdivision (9), subsection (c), section ten of this article or any other provision of this code to the contrary, if the budget shortfall, as determined by the state Budget Office as of December 1, 2015, is greater than $100 million, then the Governor may, by Executive Order, redirect deposits of revenues derived from net terminal income imposed under this article, for any period commencing after February 29, 2016 and ending before July 1, 2016, to the General Revenue Fund, instead of to the funds otherwise mandated in this article, in article two-d, chapter twenty-three of this code or in any other provision of this code.

(B) Notwithstanding any provision of subdivision (1) of this subsection or any provision of paragraph (B), subdivision (9), subsection (c), section ten of this article or any other provision of this code to the contrary, the Governor may, by Executive Order, redirect one-half of the deposits of revenues derived from net terminal income imposed under this article, for any period commencing after June 30, 2016, and ending before July 1, 2017, to the General Revenue Fund, instead of to the funds otherwise mandated in this article, in article two-d, chapter twenty-three of this code or in any other provision of this code, until certification of the Governor to the Legislature that an independent actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty three of this code, has been paid or provided for in its entirety.

§29-22A-10e. Changes in distribution of excess net terminal income; distributions from excess lottery fund.

(a) Notwithstanding any provision of subsection (a), section ten-b of this article to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, each distribution, except those distributions to be made pursuant to subdivisions (1), (2), (3), (4), (5) and (7), subsection (a), section ten-b of this article, shall be reduced by one hundred percent. Payments shall not be made pursuant to section ten-b of this article, other than those excepted by this subsection, and are made in lieu thereof in an amount to be determined by appropriation from the State Excess Lottery Revenue Fund.

(b) The total amount of reductions resulting from subsection (a) of this section shall be paid into the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter. For the fiscal year beginning July 1, 2014, and each fiscal year thereafter, distributions to be made pursuant to subdivisions (2) and (5), subsection (a), section ten-b of this article shall be reduced by ten percent, and the amounts resulting from the reduction shall be paid into the State Excess Lottery Revenue Fund.

(c) Notwithstanding any other provision of this code to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, moneys deposited to the State Excess Lottery Revenue Fund pursuant to this section shall be expended by the Lottery in accordance with appropriations.

(d) Prior to payment of any appropriation made pursuant to this section, debt service payments payable from the State Excess Lottery Fund shall first be paid in accordance with the provisions of sections eighteen-a, eighteen-d, and eighteen-e, article twenty-two of this chapter and in the priority as defined by subsection (c), section eighteen-f, article twenty-two of this chapter.

(e) Notwithstanding any other provision of this code to the contrary, after payment of debt service from the State Excess Lottery Revenue Fund, all other distributions required by section eighteen-a, article twenty-two of this chapter and the distributions appropriated pursuant to this section shall be paid on a pro rata basis.

(f)(1) Except as provided in subdivision (2) of this subsection, notwithstanding the provisions of paragraph (B), subdivision (9), subsection (a), section ten-b of this article, upon certification of the Governor to the Legislature that an independent actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty-three of this code, has been paid or provided for in its entirety, the transfers made to the Workers’ Compensation Debt Reduction Fund pursuant to paragraph (A), subdivision (9), subsection (a), section ten-b of this article shall expire and those funds shall remain in the State Excess Lottery Revenue Fund subject to appropriation.

(2)(A) Notwithstanding any provision of subdivision (1) of this subsection or any provision of paragraph (B), subdivision (9), subsection (a), section ten-b of this article or any other provision of this code to the contrary, if the budget shortfall, as determined by the state Budget Office as of December 1, 2015, is greater than $100 million, then the Governor may, by Executive Order, redirect deposits of revenues derived from net terminal income imposed under this article, for any period commencing after February 29, 2016 and ending before July 1, 2016, to the General Revenue Fund, instead of to the funds otherwise mandated in this article, in article two-d, chapter twenty-three of this code or in any other provision of this code.

(B) Notwithstanding any provision of subdivision (1) of this subsection or any provision of paragraph (B), subdivision (9), subsection (a), section ten-b of this article or any other provision of this code to the contrary, the Governor may, by Executive Order, redirect one-half of the deposits of revenues derived from net terminal income imposed under this article, for any period commencing after June 30, 2016, and ending before July 1, 2017, to the General Revenue Fund, instead of to the funds otherwise mandated in this article, in article two-d, chapter twenty-three of this code or in any other provision of this code, until certification of the Governor to the Legislature that an independent actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty three of this code, has been paid or provided for in its entirety.

§29-22A-10f. Changes in distribution of surcharge.

(a) Notwithstanding any provision of subsection (b), section ten-c of this article to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, each distribution made pursuant to section ten-c of this article shall be reduced by ten percent.

(b) The total amount of reductions resulting from subsection (a) of this section shall be paid into the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter.

§29-22A-10g. Redirection of certain amounts from net terminal revenue.

(a) The Governor may, by Executive Order, redirect seventy-five percent of the deposits of revenues derived from net terminal income imposed under this article, for any period commencing after June 30, 2017, and ending before July 1, 2018, to the General Revenue Fund, instead of to the funds otherwise mandated in this article, in article two-d, chapter twenty-three of this code or in any other provision of this code, until certification of the Governor to the Legislature that an independent actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty-three of this code, has been paid or provided for in its entirety.

(b) The Governor is authorized to redirect deposits of revenues, pursuant to subsection (a) of this section, notwithstanding the following provisions of code:

(1) Paragraph (B), subdivision (9), subsection (c), section ten of this article;

(2) Paragraph (B), subdivision (9), subsection (a), section ten-b of this article;

(3) Subdivision (1), subsection (g), section ten-d of this article;

(4) Subdivision (1), subsection (f), section ten-e of this article; or

(5) Any other provision of this code to the contrary.

§29-22A-11. Maintenance of video lottery terminals; manufacturers required to provide training; notice of availability of training; reports and certificates of training programs; terminals to be maintained in the condition approved; maintenance log required; keys to video lottery terminals; notice of repairs to the logic area; notice of broken seals on logic board.

(a) No video lottery terminal may be placed in operation in this state until the manufacturer provides training in the service and repair of each approved video lottery terminal model and service technicians complete such training. Manufacturers must submit to the commission the following information on each training program conducted:

(1) An outline of the training curriculum;

(2) A list of the instructors and their qualifications;

(3) Instructional materials; and

(4) The time, dates and location of the training programs.

(b) Manufacturers shall notify all licensed racetracks who have purchased or leased that manufacturer's video lottery terminals of all scheduled training programs. Training programs must be scheduled at convenient locations within this state to facilitate attendance by service technicians. Manufacturers must inform licensed racetracks of any new developments in the service and repair of video lottery terminals and provide appropriate subsequent training programs.

(c) The manufacturers shall issue training certificates to each person upon successful completion of a video lottery training program. The certificate shall include the name of the person who completed the training program and the date and the location of the training program. A person who successfully completes training is eligible for a service technician's permit. No person may conduct maintenance on any video lottery terminal or associated equipment unless the commission has issued a service technician permit to that person.

(d) Each manufacturer shall file with the commission the following information within two weeks after the completion of a training program:

(1) The name of each person who attended and completed the training program;

(2) The name of the manufacturer offering the course;

(3) The manufacturer's video lottery terminal models on which training for service and repair was provided;

(4) The date and location of the training program; and

(5) Copies of all certificates of completion.

(e) A written maintenance log shall be kept within the main cabinet access area in each video lottery terminal. Every person, including lottery personnel, who gains entry into any internal space of a video lottery terminal must sign the log, record the time and date of entry, record the mechanical meter readings and list the areas inspected or repaired. The maintenance log forms shall be retained by licensed racetracks for a period of three years from the date of the last entry. The maintenance logs shall be available upon request for inspection by the commission.

(f) Licensed racetracks shall provide the commission with a master key for access into the main cabinet door of each video lottery terminal placed in operation. A logic box seal shall be provided by the commission. The seal shall be affixed by commission personnel to prevent unauthorized access to the video lottery terminal logic unit.

(g) No repairs to, or replacement of, the logic board or circuitry within the logic area may occur unless authorized commission personnel are present and observe the repairs or replacement. The logic area seal shall not be broken by anyone other than authorized commission personnel. Each service technician shall submit a written report within twenty-four hours after the repairs or replacement are completed and the report shall include the serial number of any replacement board and the new logic area seal number.

(h) The software eproms on the logic board of each video lottery terminal shall be tested by the commission prior to sealing the logic area. Licensed racetracks or permit holders shall notify the commission in writing of any discovered damage, tears or breaks in the logic area seal and, upon notice, the video lottery terminal shall be disabled. The video lottery terminal shall remain disabled until completion by the commission of an investigation of the seal damage.

§29-22A-12. Number and location of video lottery terminals security.

(a) A racetrack which has been licensed to conduct video lottery games has the right to install and operate up to four hundred video lottery terminals at a licensed racetrack. A licensed racetrack may apply to the commission for authorization to install and operate more than four hundred video lottery terminals. If the commission determines that the installation of additional machines is in the best interest of the licensed racetrack, the Lottery Commission and the citizens of this state, the commission may grant permission to install and operate additional machines.

(b) All video lottery terminals in licensed racetracks shall be physically located as follows:

(1) The video lottery location shall be continuously monitored through the use of a closed circuit television system capable of recording activity for a continuous 24-hour period. All video tapes shall be retained for a period of at least thirty days;

(2) Access to video lottery terminal locations shall be restricted to persons legally entitled by age to play video lottery games;

(3) The licensed racetrack shall submit for commission approval a floor plan of the area or areas where video lottery terminals are to be operated showing terminal locations and security camera mount locations;

(4) No video lottery terminal may be relocated without prior approval from the commission; and

(5) Operational video lottery terminals may only be located in the building or structure in which the grandstand area of the racetrack is located and in the area of the building or structure where pari-mutuel wagering is permitted under the provisions of article twenty-three, chapter nineteen of this code: Provided, That if the commission, before November 1, 1993, has authorized any racetrack to operate video lottery terminals and offer video lottery games in a location which would not conform to the requirements of this subdivision, the racetrack may continue to use video lottery terminals registered with and approved by the commission at that nonconforming location and to offer the games and any variations or composites of the games as may be approved by the commission.

(c) A licensee shall allow video lottery games to be played only on days when live racing is being conducted at the racetrack and/or on televised racing days: Provided, That this restriction shall not apply to any racetrack authorized by the commissioner prior to November 1, 1993, to operate video lottery terminals and conduct video lottery games.

(d) Security personnel shall be present during all hours of operation at each video lottery terminal location. Each license holder shall employ the number of security personnel the commission determines is necessary to provide for safe and approved operation of the video lottery facilities and the safety and well-being of the players.

§29-22A-13. Payment of credits; no state liability; method of payment; restrictions on payment of credits; redeemed tickets required to be defaced; liability for video lottery terminal malfunction.

(a) No payment for credits awarded on a video lottery terminal may be made unless the ticket meets the following requirements:

(1) The ticket is fully legible and printed on paper approved by the commission and the ticket contains all information required by this article;

(2) The ticket is not mutilated, altered, unreadable or tampered with in any manner;

(3) The ticket is not counterfeit, in whole or in part; and

(4) The ticket is presented by a person authorized to play video lottery pursuant to this article.

(b) Each licensed racetrack shall designate validation managers and employees authorized to redeem tickets and to sell and redeem tokens during the business hours of operation. Credits shall be immediately paid in cash, by check, by annuitized payments over time or in the form of a noncash prize, when a player presents a valid ticket for payment.

(c) Licensed racetracks shall not redeem tickets for credits awarded on video lottery terminals which are not located on its premises. A ticket must be presented for payment no later than ten days after the date the ticket is printed. The commission is not liable for the payment of any video lottery ticket credits.

(d) All tickets redeemed by a licensed racetrack shall be defaced in a manner which prevents any subsequent presentment and payment.

(e) The commission is not responsible for any video lottery terminal malfunction which causes a credit to be wrongfully awarded or denied to players. The licensed racetrack is solely responsible for any wrongful award or denial of credits.

§29-22A-14. Transportation and registration of video lottery.

(a) Trucking companies or common carriers shipping video lottery terminals shall be bonded and shall ship all terminals in sealed trailers.

(b) A manufacturer transporting one or more video lottery terminals into this state shall, prior to shipment, provide the commission with the following information on forms prescribed by the commission:

(1) The full name, address and permit number of the person shipping the video lottery terminals;

(2) The method of shipment and the name of the carrier;

(3) The full name, address and license number of the licensed racetrack to which the video lottery terminals are being sent and the destination of the terminals if different from the address;

(4) The number of video lottery terminals in the shipment;

(5) The serial number of each video lottery terminal in the shipment;

(6) The model number and description of each video lottery terminal in the shipment; and

(7) The expected arrival date of the video lottery terminals at their respective destination within this state.

(c) A licensed racetrack which purchases or leases a video lottery terminal shall, upon receipt of the terminal, provide the commission with the following information on forms prescribed by the commission:

(1) The full name, address and license number of the licensed racetrack receiving the video lottery terminal;

(2) The full name, address and permit number of the manufacturer from whom the video lottery terminal was received;

(3) The serial number of each video lottery terminal received;

(4) The model number and description of each video lottery terminal received;

(5) The expected date and time of video lottery terminal arrival; and

(6) The expected date and time of video lottery terminal installation, and if a video lottery terminal is not placed in operation, the licensed racetrack must notify the commission of the location where the terminal is stored.

(d) Any person transporting a video lottery terminal from one location to another in this state, other than for repair or servicing purposes, shall notify the commission in writing prior to the transportation of the terminal and provide the following information on forms required by the commission:

(1) The full name, address and license number of the person or entity transporting the video lottery terminal;

(2) The reason for transporting the video lottery terminal;

(3) The full name, address and license number of the person or entity to whom the terminal is being sent and the destination of the video lottery terminal if it is different from the address;

(4) The serial and model number of the video lottery terminal;

(5) The video lottery terminal license number, if affixed;

(6) The manufacturer of the video lottery terminal; and

(7) The expected date and time of video lottery terminal installation or reinstallation.

(e) Any person shipping video lottery terminals to a destination outside of this state shall, prior to the shipment, provide the commission with the following information on forms prescribed by the commission:

(1) The full name, address and license or permit number of the person shipping the video lottery terminals;

(2) The method of shipment and the name of the carrier;

(3) The full name and address of the person to whom the video lottery terminals are being sent and the destination of the video lottery terminals if different from the address;

(4) The serial number of each video lottery terminal being shipped;

(5) The model number and description of the video lottery terminal being shipped;

(6) The video lottery terminal control number, if affixed;

(7) The manufacturer of the video lottery terminal being shipped; and

(8) The expected date and time of the shipment.

(f) Each video lottery terminal placed in operation in this state must have a commission registration decal permanently affixed, with a video lottery terminal registration control number placed thereon. A decal registration fee is hereby imposed. The amount of the fee shall equal six percent of the total consideration paid to the manufacturer for the use or the ownership of the video lottery terminal. The fee shall be paid by the manufacturer to the commission prior to the receipt of the registration decal. The registration decal fee shall be collected by the commission and deposited to the credit of the General Revenue Fund of the state. No person other than authorized commission personnel shall affix or remove a registration control number. The affixing of the commission decal on a video lottery terminal evidences that the decal registration fee has been paid and that the terminal has been registered, inspected and approved for operation in this state. No terminal may be transported out of this state until authorized commission personnel have removed the commission registration control number.

§29-22A-15. Hearing and appeal procedure; order refusing license or permit or suspending or revoking same; petition for hearing; petition requirements; cost of hearings; subpoenas and subpoenas duces tecum; no stay of suspension or revocation order; hearing date; place of hearing; continuances; absence of petitioner; hearing; argument and briefs; evidence admissible at hearing; record of proceedings; commission's decision; appeal to circuit court.

(a) If the commission refuses to issue a license or permit, or suspends or revokes a license or permit, it shall make and enter an order to that effect including a statement of the reasons for that action and shall, by certified mail, return receipt requested, mail a copy of the order to the applicant, or the license or permit holder, or serve the same in the manner provided for the service of legal process.

(b) Any applicant or licensee or permit holder adversely affected by such order has the right to a hearing thereon before the commission or a person designated as hearing examiner, if a petition in writing requesting a hearing is served upon the commission within ten days following the receipt of the order by such applicant, or license or permit holder.

(c) The petition for a hearing shall be in writing and shall include an original and one copy. The petition must contain the following:

(1) A clear and concise statement of each error which the petitioner alleges to have been committed by the commission in refusing to issue a license or permit, or suspending or revoking a license or permit, with each assignment of error being shown in separately numbered paragraphs.

(2) A clear and concise statement of fact upon which the petitioner relies as sustaining each assignment of error.

(3) A prayer setting forth the relief sought.

(4) The signature of the petitioner.

(5) Verification by the petitioner.

(d) The person demanding a hearing shall give security for the cost of the hearing in the amount of $300 in the form of certified check, cashier's check or money order, which shall accompany the petition demanding a hearing.

(e) In all hearings held under this article, oral and documentary evidence may be required through the use of subpoenas and subpoenas duces tecum. Subpoenas or subpoenas duces tecum may be issued by either the commission or its duly appointed hearing examiner and the following provisions shall govern and control:

(1) Every subpoena or subpoena duces tecum must be served at least five days before the return date thereof, either by personal service made by any person eighteen years of age or older, or by registered or certified mail, but a return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed is required to prove service by registered or certified mail.

(2) All subpoenas and subpoenas duces tecum shall be issued in the name of the commission. Service of subpoenas and subpoenas duces tecum issued at the insistence of the commission are the responsibility of the commission, but any party requesting issuance of a subpoena or subpoena duces tecum is responsible for service of any such subpoena. Any person who serves a subpoena or subpoena duces tecum is entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state and fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of this state.

(3) All fees shall be paid by the commission if the subpoena or subpoena duces tecum is issued, without the request of an interested party, at the insistence of the commission.

(4) All fees related to any subpoenas or subpoena duces tecum issued at the insistence of an interested party shall be paid by the interested party.

(5) All requests by an interested party for a subpoena and subpoena duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay such fees.

(6) Any person receiving a subpoena or subpoena duces tecum issued hereunder shall honor the same as though it were issued by a circuit court of this state and shall appear as a witness or produce such books, records or papers as are requested in response to a subpoena or subpoena duces tecum. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the judge thereof in vacation, shall, upon application by the commission, compel obedience by contempt proceedings as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from the circuit court or a refusal to testify therein.

(f) The service of a petition for hearing upon the commission shall not operate to suspend the execution of any suspension or revocation of a video lottery license or permit with respect to which a hearing is being demanded.

(g) The commission shall set a date for any hearing demanded and notify the person demanding a hearing not later than seven days before the hearing date of the date and time of the hearing, which hearing shall be held within thirty days after receipt of the petition.

(h) Hearings may not be delayed by a motion for continuance made less than ten days before the date set for the hearing.

(i) The commission may designate a hearing examiner to conduct any hearing.

(j) The petitioner may appear individually, or by legal counsel.

(k) The petitioner, or his duly authorized representative, may, with the approval of the commission, waive the right to a hearing and agree to submit the case for decision upon the petition and record, with or without a written brief. Waivers and agreements must be in writing or upon the record.

(l) The petitioner shall be given an opportunity for argument within the time limits fixed by the commission following submission of evidence. The commission, upon request of the petitioner, shall accept briefs in addition to or in lieu of argument. Briefs must be filed within ten days after the hearing date.

(m) The commission may admit any relevant evidence, except that it shall observe the rules of privilege recognized by law. A finding is to be supported by the kind of evidence commonly relied upon by reasonably prudent men in the conduct of their affairs, whether or not the evidence would be admissible before a jury. The commission may exclude any evidence which is irrelevant, unduly repetitious or lacking in substantial probative effect.

(n) There shall be a record made of all hearings held pursuant to this article.

(o) After the conclusion of the hearing and within ten days of receipt of the transcript thereof and receipt of any briefs, the person designated by the commission as hearing examiner shall prepare a recommended decision, supported by findings of fact and conclusions of law, affirming, modifying or vacating the earlier order of the commission. Thereafter, the commission, within ten days of receipt of the recommended decision, shall either accept or reject the recommended decision, and if it accepts the decision, it shall cause the director to sign and acknowledge the recommended decision as its own, after having reviewed the transcript and all exhibits attached and affixed thereto; and if it shall reject the same, it shall within ten days of receipt of the recommended decision prepare a decision setting forth its own findings of fact and conclusions of law. In either event, the decision shall be final unless vacated or modified upon judicial review thereof. A copy of the decision shall be served upon each party to the hearing and their attorney of record, if any, in person or by registered or certified mail.

(p) A petition for appeal by an applicant, licensee or permit holder may be filed with the circuit court of Kanawha County, West Virginia, or with the circuit court of the county in which the racetrack is located, if filed no later than thirty days after the date upon which the petitioner receives notice of the final decision of the commission.

§29-22A-16. Offenses and penalties.

(a) A licensee who places a video lottery game or video lottery terminal into play without authority of the commission to do so is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year and fined not more than $5,000, except that in the case of a person other than a natural person, the amount of the fine imposed may be not more than $25,000.

(b) A person who operates, carries on or exposes for play a video lottery game or video lottery terminal after the person's license has expired and prior to the actual renewal thereof is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year and fined not more than $5,000, except that in the case of a person other than a natural person, the amount of the fine imposed may be not more than $25,000.

(c) A licensee who possesses any video lottery terminal or other device, equipment or material which the person knows has been manufactured, distributed, sold, tampered with or serviced in violation of the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year and fined not more than $5,000, except that in the case of a person other than a natural person, the amount of the fine imposed may be not more than $25,000.

(d) A licensee who knowingly conducts, carries on, operates or exposes for play, or allows to be conducted, carried on, operated or exposed for play any video lottery game, video lottery terminal, or other device, equipment or material which has in any manner been tampered with, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal chance of the video lottery game which could determine or alter the result of the game is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year and fined not more than $5,000, except that in the case of a person other than a natural person, the amount of the fine imposed may be not more than $50,000.

(e) A licensee who employs or continues to employ an individual, not issued a permit under the provisions of this article, in a position with duties which would require a permit under the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year and fined not more than $5,000, except that in the case of a person other than a natural person, the amount of the fine imposed may be not more than $25,000.

(f) A person who, without obtaining the requisite permit as provided for in this article, works or is employed in a position with duties which would require a permit under the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year and fined not more than $10,000.

(g) A person who, while a video lottery game is being played at a licensed racetrack, uses, or assists another in the use of, an electronic, electrical, or mechanical device which is designed, constructed, or programmed specifically for use in obtaining an advantage at playing any video lottery game is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than six months or fined not more than $1,000, or both.

(h) A person who knowingly violates a provision of this article, or the rules of play or game rules of a video lottery game and who profits thereby in an amount equal to $1,000 or more, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than ten years, or, in the discretion of the court, be confined in jail not more than one year and shall be fined not more than $2,500. If the person profits thereby in an amount less than $1,000, such person is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail for a term not to exceed one year or fined not to exceed $2,500, or both.

(i) A person who fails to perform any of the duties or obligations created and imposed upon them by the provisions of this article shall be subject to a civil penalty as may be determined by the commission, not to exceed $10,000.

§29-22A-17. Disagreement as to duties of Racing Commission and Lottery Commission.

In the event of a disagreement between the Racing Commission and the Lottery Commission with regard to their respective duties or responsibilities in carrying out the purposes of this article, such disagreement shall be resolved by the secretary of the Department of Tax and Revenue in a manner not inconsistent with the provisions of this article, article twenty-two-a of this chapter and article twenty-three, chapter nineteen of this code.

§29-22A-18. Severability.

If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable.

§29-22A-19. Compulsive Gambling Treatment Fund; contract requirements for compulsive gamblers treatment program.

(a) There is established a separate special account to be known as the "Compulsive Gambling Treatment Fund". The fund shall be appropriated from the Commission's administrative expense account and shall be not less than $150,000 nor more than $500,000 per fiscal year, as determined by the commission, as well as other amounts designated for in this chapter to provide funds for compulsive gambling treatment programs in the state.

(b) The Department of Human Services shall administer the grants and funds issued from the "Compulsive Gambling Treatment Fund".

(c) The Department of Human Services shall develop criteria consistent with this section which a treatment program for compulsive gamblers must meet in order to become eligible for a grant from the funds made available for treatment programs pursuant to this provision.

(d) The Department of Human Services is not subject to the purchasing requirements as set forth in the legislative rule of the Purchasing Division of the Department of Administration: Provided, That the Department of Human Services shall comply with all contract requirements set forth in this section.

(e) The Department of Human Services shall develop procedures for bidding and awarding the contract, which must include:

(1) The procedures to be followed for submitting bids and the procedures for making awards;

(2) The proposed general terms and conditions for the contract;

(3) The description of the commodities and services required for the contract, with sufficient clarity to assure that there is a comprehensive understanding of the project's scope and requirements, including, but not limited to, the following elements:

(A) Services to be provided, including education, prevention, crisis intervention, outreach, assessment, referral and treatment for problem gamblers, and protocols for emergency treatment;

(B) Requirements for the business and professional licensing of providers, parameters for media-related advertising and public service announcements;

(C) Training, licensing, monitoring, evaluation and reporting requirements;

(D) Requirements for maintaining the confidentiality of the client population; and

(E) Rights to conduct financial and performance audits;

(4) A proposed time schedule commencement and completion of the contract;

(5) A budget for the contract;

(6) Requirements or restrictions for the subletting of specific portions of the contract, if any; and

(7) Requirements for professional liability and other insurance coverage.

(f) The Department of Human Services may award the contract based on low bid, best value, sole source or other basis, or may choose to reject all bids and reissue an invitation for bids: Provided, That the Department of Human Services shall document the basis of its decisions under this subsection and shall report its decisions in the annual report required in subsection (j) of this section.

(g) The Department of Human Services shall hold a post award conference with the contractor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference shall include, at a minimum, the introduction of all participants and identification of department and contractor key personnel, and discussion of the following items:

(1) The scope of the contract, including specifications of requirements set forth in the bid request;

(2) The contract terms and conditions, particularly any special contract provisions;

(3) The technical and reporting requirements of the contract;

(4) The contract administration procedures, including contract monitoring and progress measurement;

(5) The rights and obligations of both parties and the contractor performance evaluation procedures;

(6) An explanation that the contractor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;

(7) Potential contract problem areas and possible solutions;

(8) Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to outcomes achieved by the contractor; and

(9) An explanation of the limits of authority of the personnel of both the department and the contractor.

(h) The Department of Human Services shall develop a comprehensive and objective monitoring checklist which:

(1) Measures treatment outcomes;

(2) Monitors compliance with contract requirements; and

(3) Assesses contractor performance on a quarterly and annual basis.

(i) The commission may not influence or interfere with the operation of the program or the advertising and marketing decisions of the contractor.

(j) The Department of Human Services may monitor contract performance, review compliance with the contract's terms and conditions, request and review pertinent information in support of tendered invoices and conduct other investigation so as to enable it to properly assess whether the project's objectives and the contract's terms and conditions are being met. However, the Department of Human Services may not unduly influence or interfere with the operation of the program or the advertising and marketing decisions of the contractor.

(k) Once any contract to render services under a compulsive gambling treatment program is awarded pursuant to this section, the contract shall be administrated by the Department of Human Services, and the department shall maintain all records pertaining to each request for reimbursement and disbursement for under said contract for a minimum of five (5) years.

(l) The contractor may prominently promote, display or advertise the Compulsive Gambler's Treatment Program, its purpose, its hotline or its program events in any location in which the Lottery Commission promotes, displays, advertises or conducts operations or in any other location: Provided, That the Lottery Commission's name, logo or other indicia may not appear on any advertising, marketing or promotional material of the contractor.

(m) The Department of Human Services shall report annually to the Joint Committee on Government and Finance on the amount of program funds distributed, the amount of administrative fee retained by the department and its use of the fee, the number of persons served by the program, and on each requirement set forth in this section.

PART 1. GENERAL PROVISIONS.

§29-22B-101. Short title.

This article shall be known and may be cited as the "Limited Video Lottery Act."

§29-22B-102. Authorization for limited video lottery; regulation by Lottery Commission.

Limited video lottery is hereby authorized and may be operated and maintained subject to the provisions of this article. The limited video lottery authorized by this article, being a lottery, is subject to regulation by the West Virginia Lottery Commission.

§29-22B-103. Exceptions.

(a) Nothing in this article shall be construed in any way to modify, amend, or otherwise affect the validity of any provisions regulating charitable bingo and raffles as set forth in articles 47-20-1, et seq., and 47-21-1, et seq., of this code.

(b) Nothing contained in this article shall be construed to modify, amend, or otherwise affect the validity of any provisions regulating racetrack video lottery as set forth in article 22A of this chapter.

PART 2. LEGISLATIVE FINDINGS.

§29-22B-201. Legislative finding; Constitutional authority; limited video lottery is a lottery.

The Legislature finds and declares that:

(1) The Constitution grants to the Legislature the authority to establish, by general law, lotteries which are regulated, controlled, owned and operated by the State of West Virginia; and

(2) The limited video lottery authorized by this article is a "lottery" as that term is commonly understood and as that term is used in the West Virginia Constitution, article 6, section 36. The limited video lottery authorized as video lottery games in this article is a system of lottery games that utilize advanced computer technology.

§29-22B-202. Legislative finding; state ownership of video lottery through outright ownership or possession of a proprietary interest in computer hardware and software.

The Legislature further finds and declares that:

(1) The state can control, own and operate a video lottery by possessing a proprietary interest in the main logic boards, all erasable, programmable read-only memory chips used in any video lottery equipment or games, and software consisting of computer programs, documentation and other related materials necessary for the video lottery system to be operated;

(2) The state may possess a proprietary interest in video lottery game software, for purposes of this article, through outright ownership or through an exclusive product license agreement with a manufacturer whereby (A) the manufacturer retains copyrighted ownership of the software, (B) the product license granted to the state is nontransferable, and (C) the agreement authorizes the state to run the software program, solely for its own use, on the state's central equipment unit and electronic video terminals networked to the central equipment unit; and

(3) The state can control and regulate a video lottery if the state (A) restricts licensure to a limited number of video lottery terminals at qualified locations, (B) extends strict and exclusive state regulation to all persons, locations, practices and associations related to the operation of licensed limited video lottery facilities, and (C) provides comprehensive law-enforcement supervision of limited video lottery activities.

§29-22B-203. Legislative finding; license to participate in limited video lottery is a privilege.

The Legislature further finds and declares that:

(1) A person seeking a license or other affirmative Lottery Commission approval has no right to a license or to the granting of the approval sought. Any license issued or other commission approval granted pursuant to the provisions of this article is a revocable privilege;

(2) The licensing, control and regulation of limited video lottery by the state does not create (A) any property right in a license issued pursuant to this article, (B) any right to transfer or encumber a license, (C) any vested right in a license, or (D) the accrual of any value to the privilege of participation in any limited video lottery activity; and

(3) That the privilege of participation in limited video lottery operations is conditioned upon (A) the proper and continuing individual qualification of an applicant or licensee, and (B) the discharge of the affirmative responsibility of each licensee to provide the regulatory and investigatory authorities with any assistance and information necessary to assure that the policies declared by this article are achieved.

PART 3. DEFINITIONS.

§29-22B-301. Applicability of definitions.

For the purposes of this article, the words or terms defined in this part 3, and any variation of those words or terms required by the context, have the meanings ascribed to them in this part 3. These definitions are applicable unless a different meaning clearly appears from the context.

§29-22B-302. Applicant defined.

"Applicant" means a person applying for a license required by this article for lawful participation in limited video lottery.

§29-22B-303. Associated equipment defined.

"Associated equipment" means any hardware located on the premises of video lottery retailers, other than the video lottery terminals themselves, that is connected to the video lottery terminal or to the central computer for the purpose of performing communication, validation or other functions. "Associated equipment" does not include the communication equipment and facilities of a regulated public utility.

§29-22B-304. Background investigation defined.

"Background investigation" means a security, criminal and credit investigation of an applicant who has applied for the issuance or renewal of a license pursuant to this article, or a licensee who holds a current license.

§29-22B-305. Central computer, central control computer or central site system defined.

"Central computer," "central control computer" or "central site system" means any central site computer provided to and controlled by the commission to which video lottery terminals communicate for purposes of information retrieval and terminal activation and to disable programs.

§29-22B-306. Commission or state Lottery Commission defined.

"Commission" or "state Lottery Commission" means the West Virginia Lottery Commission created by article 22 of this chapter.

§29-22B-307. Control defined.

"Control" means the authority to direct the management and policies of an applicant or a license holder.

§29-22B-308. Director defined.

"Director" means the individual appointed by the Governor to provide management and administration necessary to direct the state lottery office.

§29-22B-309. Disable or terminal disable defined.

"Disable" or "terminal disable" means the process of executing a shutdown command from the central control computer which causes video lottery terminals to cease functioning.

§29-22B-310. Display defined.

"Display" means the visual presentation of video lottery game features on the video display monitor or screen of a video lottery terminal.

§29-22B-311. EPROM and erasable programmable read-only memory chips defined.

"EPROM" and "erasable programmable read-only memory chips" means the electronic storage medium on which the operation software for all games playable on a video lottery terminal resides and which can also be in the form of CD-ROM, flash RAM or other new technology medium that the commission may from time to time approve for use in video lottery terminals. All electronic storage media are considered to be the property of the State of West Virginia.

§29-22B-312. Identification document defined.

"Identification document" means a document made or issued by or under the authority of the United States government, a state, a political subdivision of a state, a foreign government or a political subdivision of a foreign government, which, when completed with information concerning a particular individual, is of the type intended or commonly accepted for the purpose of identifying individuals.

§29-22B-313. Indirect ownership defined.

"Indirect ownership" means an interest a person owns in an entity or in property solely as a result of application of constructive ownership rules without regard to any direct ownership interest (or other beneficial interest) in the entity or property. "Indirect ownership" shall be determined under the same rules applicable to determining whether a gain or loss between related parties is recognized for federal income tax purposes.

§29-22B-314. License defined.

"License" or "video lottery license" means authorization granted by the commission pursuant to this article to a person permitting that person to engage in the activity for which the license was issued. "License used in this article" means a license issued by the commission as provided in this article that has not expired or been canceled, revoked or suspended by the director or the commission.

§29-22B-315. Location defined.

"Location" means a restricted access adult-only facility located on premises in which the limited video lottery retailer holds a license as provided in section 22B-501 of this article.

§29-22B-316. Limited video lottery retailer defined.

"Limited video lottery retailer" means a person who holds either a valid license issued under article 60-7-1, et seq., of this code, to operate a private club, or who holds a valid Class A license issued under article 11-16-1, et seq., of this code, to operate a business where nonintoxicating beer is sold for consumption on the premises, or who holds both licenses, and the person also holds a valid limited video lottery retailer's license issued under this article.

§29-22B-317. Lottery defined.

"Lottery" means the public gaming systems or games regulated, controlled, owned and operated by the state Lottery Commission as provided in this article and in articles 29-22-1, et seq., 29-22A-1, et seq., and article 29-25-1, et seq.

§29-22B-318. Manufacturer defined.

"Manufacturer" means any person holding a license issued under this article by the commission which allows the person to engage in the business of designing, building, constructing, assembling or manufacturing video lottery terminals, the electronic computer components of the video lottery terminals, the random number generator of the video lottery terminals, or the cabinet in which the video lottery terminal is housed, and whose product is intended for sale, lease or other assignment to a person who is issued a permit under this article allowing the person to purchase or lease video lottery terminals from a manufacturer.

§29-22B-319. National criminal history background check system defined.

"National criminal history background check system" means the criminal history record system maintained by the Federal Bureau of Investigation based on fingerprint identification or any other method of positive identification.

§29-22B-320. Net terminal income and gross terminal income defined.

"Net terminal income" means the portion of gross terminal income collected by the commission from the permittees determined to be net terminal income as calculated under subsection 22B-1408(a) of this article. "Gross terminal income" means the total amount of cash inserted into video lottery terminals operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminals in exchange for winning redemption tickets. A licensee may not deduct costs or expenses related to the operation of video lottery games from net terminal income.

§29-22B-321. Operator defined.

"Operator" means a person holding an operator’s license granted under this article by the commission allowing the person to: (1) Own or lease a specified number of video lottery terminals from one or more manufacturers; (2) service and repair those video lottery terminals; (3) enter into contracts with limited video lottery retailers for placement of those video lottery terminals in a restricted access adult-only facility located on the premises of the limited video lottery retailers; and (4) operate limited video lottery terminals as a limited video lottery retailer, subject to the provisions of §29-22B-503 of this code.

§29-22B-322. Own defined.

"Own" means any beneficial or proprietary interest in any property and includes, but is not limited to, any direct or indirect beneficial or proprietary interest in any business of an applicant or licensee.

§29-22B-323. Permit defined.

"Permit" means the authorization issued by the commission allowing a person licensed as a permittee under this article to own or lease a specified number of video lottery terminals.

§29-22B-324. Permittee defined.

"Permittee" means a licensed operator or a licensed limited video lottery retailer who has a permit for video lottery terminals issued under part 11 of this article.

§29-22B-325. Person defined.

"Person" means any natural person, and any corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature, other than a government agency or instrumentality.

§29-22B-326. Player defined.

"Player" means a person who plays a video lottery game on a video lottery terminal at a restricted access adult-only facility.

§29-22B-327. Resident of this state defined.

[Repealed.]

§29-22B-328. Restricted access adult-only facility defined.

"Restricted access adult-only facility" means:

(a)(1) A private club licensed under article 60-7-1, et seq., of this code that is licensed under this article by the commission to allow its members and their guests to play video lottery games: Provided, That when the private club is frequented by minors and their parents, video lottery terminals shall be located in a separate room suitable for the location of video lottery terminals with adult-only restricted access, the interior of which is not visible to persons outside the room; and

(2) A place of business that: (A) Has a "Class A" license issued under article 11-16-1, et seq., of this code to sell nonintoxicating beer for consumption on the premises; (B) derives at least forty percent of its annual gross receipts at that location from sales of nonintoxicating beer to consumers and of such sales, at least eighty percent are sales of nonintoxicating beer for consumption on the premises; (C) maintains a suitable kitchen and dining facility and related equipment for serving meals for on-premises consumption; (D) regularly prepares and sells meals for consumption on the premises; (E) has a separate room suitable for the location of video lottery terminals with adult-only restricted access, the interior of which is not visible to persons outside the room; and (F) after meeting any additional standards developed by the commission to implement and apply this subdivision (2), is licensed under this article by the commission to allow video lottery games to be played in the restricted access adult-only separate room on the premises.

(b) Notwithstanding the provisions of subsection (a) of this section, it does not include a place of business that sells petroleum products in conjunction with the sale of other retail products which may include, but are not limited to, tobacco, alcohol or food products; nor may such place of business establish a separate room or building which is a part of, contiguous to, or adjoining the place of business as a restricted access adult-only facility.

§29-22B-329. Service technician defined.

"Service technician" means an individual who is licensed under this article to service, maintain and repair video lottery terminals that are registered under this article. A licensed service technician may be a sole proprietor, partner, or an employee of a person licensed under this article or an employee of a business not licensed under this article that services, maintains and repairs video lottery terminals owned or leased by a permittee through one or more service technicians.

§29-22B-330. Video lottery defined.

"Video lottery" means a lottery that allows a game to be played utilizing an electronic computer and an interactive terminal device, equipped with a video screen and keys, a keyboard or other equipment allowing input by an individual player, into which the player inserts coins or currency as consideration in order for play to be available, and through which terminal device, the player may receive free games or a voucher that can be redeemed for a cash or noncash prize, or nothing, determined wholly or predominantly by chance. "Video lottery" does not include a lottery game that merely utilizes an electronic computer and a video screen to operate a lottery game and communicate the results of the game and which does not utilize an interactive electronic terminal device allowing input by one or more players.

§29-22B-331. Video gambling machine defined.

(a) "Video gambling machine" means a computerized device:

(1) That is not approved and registered by the commission under the provisions of this article or used, possessed or operated pursuant to and under the requirements of the provisions of articles 29-22-1, et seq., 29-22A-1, et seq., 29-25-1, et seq., 47-20-1, et seq., or 47-21-1, et seq., or any reenactment thereof;

(2) That employs a monitor that has a display screen, software programs, graphics board, graphics card or any other necessary components that give the monitor graphics capabilities for displaying and manipulating pictures, words, numbers or symbols;

(3) That has a storage medium containing the source language or executable code of a computer program that cannot be reasonably demonstrated to have any use other than, through the display of pictures, words, numbers or symbols, simulating the play of such games as poker, blackjack, roulette, baccarat, keno, craps, or any other game of skill or chance of whatever name or kind;

(4) That allows a person, by inserting currency, coins, tokens or other similar objects into the machine, or by otherwise making some payment of consideration, to make the machine available for the person to play;

(5) That allows a person playing the machine an opportunity to win (A) cash, (B) play credits, (C) tokens, tickets, vouchers or other things that can be exchanged for cash or any other thing of value, or (D) prizes, premiums, merchandise or any other thing of value, whether by reason of the skill of the player or by the application of the element of chance, or both; and

(6) That can result in a payoff to a winning player automatically from the machine or in any other manner whatsoever.

(b) "Video gambling machine" does not include:

(1) Pin ball machines;

(2) Automatic weighing, measuring, musical, and vending machines which are designed and constructed to give a uniform and fair return in value for each coin deposited and in which there is no element of chance; or

(3) Crane machines.

(c) A machine described in subsection (a) of this section is no less a video gambling machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability.

§29-22B-332. Video lottery game defined.

"Video lottery game" means an electronically simulated game of chance that is approved, owned and controlled under this article by the commission, which is displayed on the screen or video monitor of a video lottery terminal and that:

(1) Is connected to the commission's central control computer by an on-line or dial-up communication system;

(2) Is initiated by a player's insertion of coins or currency into a video lottery terminal, which causes game play credits to be displayed on the video lottery terminal and, with respect to which, each game play credit entitles a player to choose one or more symbols or numbers or to cause the video lottery terminal to randomly select symbols or numbers;

(3) Allows the player to win additional game play credits based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and the number of free-play credits to be awarded for each winning combination of symbols or numbers or both;

(4) Is based upon computer-generated random selection of winning combinations based totally or predominantly on chance;

(5) Allows a player at any time to simultaneously clear all game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the video lottery terminal; and

§29-22B-333. Video lottery terminal defined.

"Video lottery terminal" means a commission-approved machine or device that is compatible with the Lottery Commission's central computer system, and that is used for the purpose of playing video lottery games authorized by the Lottery Commission by no more than one player at a time.

§29-22B-334. Wager defined.

"Wager" means a sum of money or thing of value risked on an uncertain occurrence.

PART 4. ADMINISTRATION OF LIMITED VIDEO LOTTERY.

§29-22B-401. General authority of state Lottery Commission and director; conflicts.

(a) The Lottery Commission created by section 29-22-4 of this code is authorized to implement and operate a system of limited video lottery in accordance with the provisions of this article and the applicable provisions of article 22 of this chapter.

(b) The state Lottery Commission and the director of the commission shall exercise their respective powers and perform their respective duties and functions as specified in this article.

(c) The provisions of article 22 of this chapter apply to this article, except in the event of conflict or inconsistency between any of the provisions of this article and the provisions of article 22 of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article 22 of this chapter.

§29-22B-402. Powers and duties of the state Lottery Commission.

In addition to any other powers and duties set forth in this article or article 22 of this chapter, the Lottery Commission has the following powers and duties:

(1) To propose legislative rules for promulgation by the Legislature in accordance with the provisions of article 29A-3-1, et seq., of this code, governing the licensing, conduct, and operation of limited video lottery that may be necessary to carry out the purposes of this article. The director shall prepare and submit to the Lottery Commission written recommendations concerning proposed legislative rules for this purpose;

(2) To propose other rules for promulgation as provided in article 29A-3-1, et seq., of this code not inconsistent with this article which the commission in its discretion believes to be necessary. Authority to propose rules includes the authority to propose amendments to rules and to propose repealing rules;

(3) Notwithstanding any other provision of this code to the contrary, proposed legislative rules for this article filed in the state register by August 1, 2001, may be filed as emergency rules.

(4) To conduct hearings upon complaints charging violations of this article or applicable rules, and to conduct other hearings as may be required by this article or rules of the Lottery Commission;

(5) To enter into written agreements with the State Police and local law-enforcement agencies for the conduct of identification and investigation of applicants, licensees or employees in accordance with the provisions of this article, including, but not limited to, (A) performing background investigations and criminal records checks and (B) investigating possible violations that may be discovered as a result of an investigatory process or discovered by the Tax Commissioner, the Alcohol Beverage Control Commissioner or the Lottery Commission in the course of conducting their respective business. Disclosure to the State Police or other law-enforcement officials of a possible violation of this article and material facts related thereto shall not be deemed to be an unauthorized disclosure of information under section 11-10-5d of this code. Nothing in this section prevents or impairs the State Police or local law-enforcement agencies from engaging in the activities set forth in this subdivision on their own initiative;

(6) To conduct a continuous study and investigation of limited video lottery throughout the state (A) to ascertain any defects in this article or in legislative rules that may conflict with the purposes of this article, (B) to discover any abuses in the administration, control and oversight of limited video lottery or (C) to discover any violation of this article or applicable legislative rules;

(7) To formulate and recommend proposed legislation amending this article or any applicable legislative rule so as to increase the efficiency and effectiveness of this article;

(8) To report immediately to the Governor, the Speaker of the House of Delegates, the President of the Senate, the minority leaders of both houses, and such other state officers as the Lottery Commission deems appropriate concerning any laws which it determines may require immediate amendment to prevent abuses and violations of this article or any applicable rule or to remedy undesirable conditions in connection with the administration or the operation of limited video lottery;

(9) To require such special reports from the director as it considers necessary;

(10) To issue licenses to those involved in the ownership, participation, or conduct of limited video lottery;

(11) To delegate to the director the authority to issue or deny licenses and renewals under criteria established by the commission;

(12) Upon complaint, or upon its own motion, to levy civil penalties and to suspend or revoke licenses that the Lottery Commission has issued for failure to comply with any applicable provision of this article or rule of the commission;

(13) To establish and collect fees upon persons, licenses, and gaming devices used in, or participating in, limited video lottery as provided in this article or rule of the commission;

(14) To obtain all information from licensees and other persons and agencies which the Lottery Commission deems necessary or desirable in the conduct of its business;

(15) To issue subpoenas for the appearance or production of persons, records, and things in connection with applications before the Lottery Commission or in connection with disciplinary or contested cases considered by the Lottery Commission;

(16) To apply for injunctive or declaratory relief to enforce the provisions of this article and any rules promulgated pursuant to this article;

(17) To impose and collect civil penalties as provided for under this article;

(18) To inspect and examine without notice all premises wherein limited video lottery is conducted or devices or equipment used in limited video lottery are located, manufactured, sold, or distributed, and to summarily seize, remove, and impound, without notice or hearing from such premises any equipment, devices, supplies, books, or records for the purpose of examination or inspection;

(19) To exercise other incidental powers as may be necessary to ensure the safe and orderly regulation of limited gaming and the secure collection of all revenues, including, but not limited to, taxes, fees, civil penalties and other moneys due the commission;

(20) To establish internal control procedures for licensees, including accounting procedures, reporting procedures, and personnel policies;

(21) To establish and collect fees for performing background checks on all applicants for licenses and on all persons with whom the commission may agree with or contract with for the providing of goods or services, as the commission deems appropriate;

(22) To establish and collect fees for performing, or having performed, tests on equipment and devices to be used in limited video lottery;

(23) To demand, at any time when business is being conducted, access to and inspection, examination, photocopying, and auditing of all papers, books, and records of applicants and licensees, on their premises or elsewhere as practicable by authorized employees or agents of the commission and in the presence of the licensee or his or her agent, pertaining to the gross income produced by any licensed gaming establishment and to require verification of income, and all other matters affecting the enforcement of the policies of the Lottery Commission or any provision of this article; and to impound or remove all papers, books, and records of applicants and licensees, without hearing, for inspection or examination; and

(24) To prescribe voluntary alternative methods for the making, filing, signing, subscribing, verifying, transmitting, receiving, or storing of returns, writings or other documents.

§29-22B-403. Powers and duties of the director.

In addition to the duties imposed upon the director elsewhere in this article and article 22 of this chapter, the director shall:

(1) Supervise and administer the operation of licensed limited video lottery in accordance with the provisions of this article and the rules of the Lottery Commission;

(2) Issue licenses to manufacturers, operators, limited video lottery retailers and service technicians, after approval by the Lottery Commission;

(3) Register video lottery terminals and equipment and issue registration decals;

(4) Collect and deposit license and registration fees due under this article;

(5) Require the mandatory posting by limited video lottery retailers of the rules of play and the odds or house percentage on each video lottery game;

(6) Attend meetings of the Lottery Commission or appoint a designee to attend in the director's place;

(7) Employ and direct such personnel as may be necessary to carry out the purposes of this article, but no person shall be employed who has been convicted of a felony or gambling-related offense;

(8) With the approval of the Lottery Commission, enter into agreements with any department, agency, or unit of state government to secure services which the director deems necessary and to provide for the payment for such services;

(9) Employ and compensate such consultants and technical assistants as may be required and as otherwise permitted by law;

(10) Confer with the Lottery Commission as necessary or desirable, with regard to the operation of the division;

(11) Make available for inspection by the Lottery Commission or any member of the commission, upon request, all books, records, files, and other information and documents in the director's office;

(12) Advise the Lottery Commission and recommend to the commission such rules and other procedures as the director deems necessary and advisable to improve the operation of limited video lottery;

(13) With the concurrence of the Lottery Commission or pursuant to commission requirements and procedures, enter into contracts for materials, equipment, and supplies;

(14) Make a continuous study and investigation of the operation and the administration of similar laws which may be in effect in other states or countries; of any literature on video gaming which from time to time may be published or available; and of any federal laws which may affect the conduct of limited video lottery in this state with a view to recommending or effecting changes that would serve the purposes of this article;

(15) Publish as a public document a monthly report that contains a full and complete statement of the revenue and expenses for each month from limited video lottery operations;

(16) Provide copies of the monthly revenue and expense statement to the Lottery Commission, the secretary of the Department of Tax and Revenue, the Governor, the Speaker of the House of Delegates, the President of the Senate, and the minority leaders of both houses of the Legislature; and

(17) Perform any other acts that the Lottery Commission finds are necessary or desirable in order to carry out the purposes of this article.

§29-22B-404. Advertising by commission or director.

The commission and the director may conduct video lottery advertising only for the purpose of advising the public as to the use of the revenues generated by video lottery operations authorized by this article.

PART 5. REQUIREMENTS AND QUALIFICATIONS FOR LICENSURE.

§29-22B-501. Types of licenses issued for participation in limited video lottery activities.

(a) The Lottery Commission may issue four types of limited video lottery licenses, as follows:

(1) A manufacturer's license;

(2) An operator's license;

(3) A limited video lottery retailer's license; and

(4) A service technician's license.

(b) A manufacturer's license is required for all persons who act as a manufacturer as defined in section 22B-319 of this article.

(c) An operator's license is required for all persons who engage in the business of placing and operating video gaming machines on the premises of a retailer. A licensed operator and a licensed limited video lottery retailer who hold a permit issued under part 11 of this article may obtain video lottery terminals only from a licensed manufacturer.

(d) A video lottery retailer's license is required for all persons conducting limited video lottery on their premises. Each person licensed as a retailer shall have and maintain sole and exclusive legal possession of the entire premises for which the retail license is issued.

(e) Each license issued pursuant to this section expires one year from the date of its issuance but may be successively renewed upon the filing and approval of an application for renewal, except as otherwise provided in this article.

§29-22B-502. General qualifications for all types of limited video lottery licenses.

(a) No limited video lottery license or license renewal may be granted unless the Lottery Commission has determined that the applicant satisfies all of the following qualifications:

(1) The applicant is a person of good character, honesty, and integrity;

(2) The applicant is a person whose background, criminal record, if any, reputation, habits, and associations, do not threaten to (A) compromise the public interest of the citizens of the state, (B) weaken the effective regulation and control of video gaming, (C) breach the security and integrity of the lottery, or (D) introduce corrupt, unfair, or illegal practices, methods, and activities into the operation of video gaming or the business or financial transactions incidental to the operation of video gaming;

(3) The applicant has not been convicted of any violation of §29-22B-101 et seq., §19-23-1 et seq., §29-22-1 et seq., §29-22A-1 et seq., §29-25-1 et seq. of this code, or any felony related to theft, bribery, or gambling in this or in any other state or foreign country: Provided, That the Lottery Commission shall apply §29-22B-502(b) and §29-22B-502(c) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license being sought.

(4) The applicant has disclosed to the Lottery Commission the identity of each person who has control of the applicant, as control is described in §29-22B-507 of this code, and those persons satisfy all qualifications required by this section and any applicable qualifications required by §29-22B-503 through §29-22B-506 of this code;

(5) The applicant has provided a set of fingerprints and has completed and signed the statement provided for in §29-22B-602 of this code;

(6) The applicant has furnished all information, including financial data and documents, certifications, consents, waivers, individual history forms, and other materials requested by the Lottery Commission for purposes of determining qualifications for a license.

(b) The Lottery Commission may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the Lottery Commission shall consider at a minimum:

(1) The nature and seriousness of the crime for which the individual was convicted;

(2) The passage of time since the commission of the crime;

(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(4) Any evidence of rehabilitation or treatment undertaken by the individual.

(c) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the Lottery Commission shall permit the applicant to apply for initial licensure if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the Lottery Commission.

(d) An individual with a criminal record who has not previously applied for licensure may petition the Lottery Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the Lottery Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Lottery Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Lottery Commission may charge a fee to recoup its costs for each petition.

§29-22B-503. Additional qualifications for an applicant for an operator’s license.

(a) No operator’s license or license renewal may be granted unless the Lottery Commission has determined that, in addition to the general requirements set forth in §29-22B-502 of this code, the applicant satisfies all of the following qualifications:

 (1) The applicant has demonstrated the training, education, business ability, and experience necessary to establish, operate, and maintain the business for which the license application is made;

 (2) The applicant has secured any necessary financing for the business for which the license application is made, and the financing: (A) Is from a source that meets the qualifications of this section; and (B) is adequate to support the successful performance of the duties and responsibilities of the licensee. A licensee shall request commission approval of any change in financing or leasing arrangements at least 30 days before the effective date of the change;

 (3) The applicant has disclosed all financing or refinancing arrangements for the purchase, lease, or other acquisition of video lottery terminals and associated equipment in the degree of detail requested by the Lottery Commission;

 (4)The applicant has filed with the Lottery Commission a copy of any current or proposed agreement between the applicant and any manufacturer for the sale, lease, or other assignment to the operator of video lottery terminals, the electronic computer components of the terminals, the random number generators of the terminals, or the cabinets in which they are housed; and

 (5) The applicant does not hold any other license under this article, §19-23-1 et seq. of this code, §29-22-1 et seq. of this code, §29-22A-1 et seq. of this code, or §29-25-1 et seq. of this code, except that an applicant may also be licensed as a service technician.  In addition, an applicant may also be licensed as a limited video lottery retailer:  Provided, That a licensed operator that also is a licensed retailer may operate limited video lottery terminals as a limited video lottery retailer at no more than 10 locations:  Provided, however, That the director may authorize the operator to operate limited video lottery terminals as a limited video lottery retailer at more than 10 locations if the applicant provides sufficient justification that such approval is necessary to sustain state revenues without a detrimental impact on public interest, further shows that a qualified retailer is unavailable and a good faith effort to identify a qualified retailer was made prior to the request, and an explanation of other relevant information supporting the request.

(b)(1) A person or a member of his or her immediate family who has an ownership interest in a business entity that submits an application for an operator’s license may not: (A) Submit an application for another operator’s license as an individual; (B) serve as an officer, director, member, or partner of a business entity that submits an application for another operator’s license; or (C) have an ownership interest in any other business entity that submits an application for an operator’s license.

(2) Business entities that have common owners or common officers, directors, members, or partners may not hold more than one operator’s license.

§29-22B-504. Additional qualifications for an applicant for a limited video lottery retailer’s license.

No limited video lottery retailer’s license or license renewal may be granted unless the Lottery Commission has determined that, in addition to the general requirements set forth in §29-22B-502 of this code, the applicant satisfies all of the following qualifications:

 (1) The applicant has disclosed to the Lottery Commission the identity of each person who has control of the applicant, as control is described in §29-22B-507 of this code;

 (2) The applicant holds either: (A) A valid license issued under §60-7-1 et seq. of this code to operate a private club; (B) a valid Class A license issued under §11-16-1 et seq. of this code to operate a business where nonintoxicating beer is sold for consumption on the premises; or (C) both licenses;

 (3) The applicant has demonstrated the training, education, business ability, and experience necessary to establish, operate and maintain the business for which the license application is made;

 (4) The applicant has secured any necessary financing for the business for which the license application is made and the financing: (A) Is from a source that meets the qualifications of this section; and (B) is adequate to support the successful performance of the duties and responsibilities of the licensee;

 (5) The applicant has disclosed all financing or refinancing arrangements for placement on the applicant’s premises of video lottery terminals and associated equipment in the degree of detail requested by the Lottery Commission;

 (6) The applicant has filed with the Lottery Commission a copy of any current or proposed agreement between the applicant and a licensed operator for the placement on the applicant’s premises of video lottery terminals;

 (7) The applicant has filed with the Lottery Commission a copy of any current or proposed agreement between the applicant and a licensed operator or other person for the servicing and maintenance of video lottery terminals by licensed service technicians; and

 (8) The applicant does not hold any other license under this article, §19-23-1 et seq. of this code, or §29-22A-1 et seq. of this code, or §29-25-1 et seq. of this code except that an applicant may also be licensed as a service technician.  In addition, an applicant may also be licensed as an operator, subject to the provisions of §29-22B-503(a)(6) of this code.

§29-22B-505. Additional qualification for an applicant for a service technician's license.

No service technician's license or license renewal may be granted unless the Lottery Commission has determined that, in addition to the general requirements set forth in section 22B-502, the applicant has passed a technical competence test administered or approved by the Lottery Commission.

§29-22B-506. Additional qualifications for an applicant for a manufacturer's license.

No manufacturer's license or license renewal may be granted unless the Lottery Commission has determined that, in addition to the general requirements set forth in section 22B-502, the applicant satisfies all of the following qualifications:

(1) The applicant has obtained, or can obtain, certification of compliance under the provisions of part 15 of the federal communications commission rules for all video lottery terminals placed in this state;

(2) The applicant has demonstrated the capacity to manufacture terminals and associated equipment for placement in this state in accordance with the specifications and procedures set forth in part 9 of this article;

(3) The applicant has demonstrated the ability to maintain and provide an inventory of spare parts so as to assure the timely repair and continuous operation of licensed video lottery terminals placed in this state; and

(4) The applicant has demonstrated the capacity to timely deliver video lottery terminals and associated equipment to licensed operators and licensed limited video lottery retailers who hold permits issued under part 11 of this article to own or lease video lottery terminals from licensed manufacturers.

§29-22B-507. Persons having control of an applicant for a limited video lottery license.

The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation.

(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant.

(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant's business operation.

§29-22B-508. Commission action on applications.

(a) The commission may not issue any license until after the background investigations are concluded. This provision shall not apply to an application for renewal of a license except to the extent background investigations are required of an applicant for renewal of a license in legislative rules of the commission.

(b) The commission shall make an affirmative determination that the applicant is qualified and that the applicable license fees have been paid prior to issuing any license.

§29-22B-509. Incomplete application not to be considered.

(a) The Lottery Commission shall notify the applicant in writing if an application is incomplete and the notification shall state the deficiencies in the application.

(b) The commission may not consider incomplete applications. The commission may consider an application when the applicant has completed and executed all forms and documents required by the commission and all application fees and costs have been paid.

§29-22B-510. Burden of proving qualification for license.

The burden of proving qualification for any limited video lottery license or for renewal thereof is on the applicant.

§29-22B-511. Issuance of order refusing to issue or renew license, or suspending or revoking same.

(a) The commission shall notify applicants and licensees in writing of the denial, suspension or revocation of a license and the reasons for the denial, suspension or revocation in accordance with the provisions of section 22B-518.

(b) An applicant may request a hearing to review a license denial, suspension or revocation in accordance with part 15 of this article.

§29-22B-512. Review of continuing eligibility for license.

The Lottery Commission shall determine on a continuing basis the eligibility of licensees to hold a license.

§29-22B-513. Application forms and other documents.

(a) The commission shall determine the forms of application to be used.

(b) All application, registration and disclosure forms and other documents submitted to the Lottery Commission by or on behalf of the applicant for purposes of determining qualification for a video lottery license shall be sworn to or affirmed before an officer qualified to administer oaths.

§29-22B-514. Failure to reveal material fact; false or misleading material.

(a) An applicant who knowingly fails to reveal any fact that is material to qualification or who knowingly submits false or misleading material information is ineligible for a video lottery license.

(b) An applicant who is awarded a license or renewal of a license shall give the commission written notification of any material change in the information previously submitted in or with the application for the license or for renewal thereof, whichever is the most recent document filed with the commission, within thirty days after the material change occurs or the licensee becomes aware of the material change, whichever event occurs last.

§29-22B-515. Bonding requirements for operators and limited video lottery retailers who are permittees.

Before any operator or limited video lottery retailer is issued a permit under part 11 of this article to own or lease video lottery terminals from a licensed manufacturer, the permittee shall post a bond or irrevocable letter of credit in a manner and in an amount established by the commission. The bond must be issued by a surety company authorized to transact business in West Virginia and the company must be approved by the Insurance Commission of this state as to solvency and responsibility. A permittee who is a video lottery retailer that has permits for two or more restricted access adult-only facilities may post a blanket bond.

§29-22B-516. Applicant bears the risk of adverse publicity.

Each applicant bears all risks of adverse public notice, embarrassment, criticism, damages or financial loss which may result from any disclosure or publication of any material or information obtained by the Lottery Commission pursuant to action on an application. The applicant shall, as a part of its application, expressly waive any and all claims against the Lottery Commission, the State of West Virginia and the employees of either for damages as a result of any background investigation, disclosure or publication relating to an application for a video lottery license or permit.

§29-22B-517. Renewal of licenses.

The commission shall renew video lottery licenses annually on a date set by the commission, if each person seeking license renewal submits the applicable renewal fee, completes all renewal forms provided by the commission, and continues to meet all qualifications for a license.

§29-22B-518. Annual license fees.

(a) The following license fees shall be paid annually by each licensed operator, manufacturer, service technician or limited video lottery retailer:

(1) Operator: $10,000;

(2) Manufacturer: $10,000;

(3) Service technician: $100;

(4) Limited video lottery retailer: $500.

(b) The applicable fee shall be paid to the commission at the time the application for a license is submitted to the commission and upon the annual renewal date each year thereafter, at which time the license may be renewed.

(c) A manufacturer who ceases supplying any additional video lottery terminals to permittees in this state may continue to supply repair parts and service for video lottery terminals previously provided to permittees, if an annual renewal fee of $1,000 is paid and the manufacturer is otherwise eligible for licensure under this article.

(d) License fees collected under this section shall be deposited in the fund established in section 29-22-18a.

PART 6. BACKGROUND INVESTIGATIONS.

§29-22B-601. Establishment of procedures for background investigations.

(a) The Lottery Commission, through a cooperative agreement with the State Police, shall establish procedures for conducting background investigations for the purpose of determining whether an applicant has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant's fitness to hold a license under this article.

(b) A background investigation must include, but not be limited to, (1) accessing the national criminal history background check system as defined in section 22B-319 and (2) reviewing any other readily accessible state or federal criminal history records that may be pertinent to the background investigation.

(c) The state police shall make a determination whether the applicant has been convicted of, or is under pending indictment for, a crime that bears upon the applicant's fitness to hold a license under this article and shall convey that determination to the Lottery Commission.

§29-22B-602. Responsibility of state police in conducting background investigations.

The state police shall establish and maintain an adequate system for background investigations that:

(1) Ensures that timely background investigations are conducted on applicants for limited video lottery licenses, current licensees, and other persons required to be investigated by the Lottery Commission in accordance with the provisions of this article or by legislative rules promulgated pursuant to this article;

(2) Provides for review and oversight of applicants, current licensees, and other persons on an ongoing basis;

(3) Provides that upon receipt of a background check report lacking disposition data, further research will be conducted in whatever state and local recordkeeping systems are available in order to obtain complete data;

(4) Provides for prompt notification to the Lottery Commission of the results of background investigations before the issuance or renewal of any license; and

(5) Clearly defines a standard whereby a person's prior activities, criminal record, if any, or reputation, habits and associations are such as to pose a threat to the public interest or to the effective regulation of limited video lottery, or create or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming, thereby rendering that person ineligible for licensing.

§29-22B-603. Guidelines for background investigations.

The Lottery Commission may not request a background check of an applicant under section 22B-601 of this article unless the applicant first provides a set of fingerprints and completes and signs a statement that:

(1) Contains the name, address, and date of birth appearing on a valid identification document (as defined in section 22B-312 of this article) of the applicant;

(2) Declares that the applicant has not been convicted of a crime or, if the applicant has been convicted of a crime, contains a description of the crime and the particulars of the conviction. For the purposes of this section, an applicant has not been convicted of a crime if he or she was convicted of a nonmoving motor vehicle violation or a speeding violation that does not arise in connection with a motor vehicle collision;

(3) Notifies the applicant that the Lottery Commission will request a background check under section 22B-601 of this article; and

(4) Notifies the applicant of the applicant's rights under section 22B-604 of this article.

§29-22B-604. Applicant's rights regarding background investigations.

Each applicant who is the subject of a background check is entitled to a copy of his or her background investigation report, and has the right to challenge the accuracy and completeness of any information contained in the report and to obtain a prompt determination as to the validity of the challenge before a final determination is made by the Lottery Commission that would deny issuance of a license or renewal of a license.

PART 7. DUTIES AND RESPONSIBILITIES OF LICENSEES.

§29-22B-701. General duties of all licensees.

All video lottery license holders shall:

(1) Promptly report to the commission any facts or circumstances related to video lottery operations that constitute a violation of state or federal law;

(2) Conduct all video lottery activities and functions in a manner that does not pose a threat to the public health, safety or welfare of the citizens of this state, and which does not adversely affect the security or integrity of the lottery;

(3) Hold the commission and this state harmless from and defend and pay for the defense of any and all claims that may be asserted against a license holder, this state or the commission and its employees arising from the license holder's participation in the video lottery system authorized by this article;

(4) Assist the commission in maximizing video lottery revenues;

(5) Maintain all records required by the commission;

(6) Upon request by the commission or any designated agent of the commission, provide the commission access to all records and the physical premises of the business or businesses where the license holder's video lottery activities occur, for the purpose of monitoring or inspecting the license holder's activities and the video lottery games, video lottery terminals and associated equipment;

(7) Keep current in all payments and obligations to the commission; and

(8) Notify the commission in writing of any proposed change of ownership or control of the license holder and of all other transactions or occurrences relevant to license qualification, and receive commission approval prior to any change of ownership or control of a licensed manufacturer, operator or limited video lottery retailer.

§29-22B-702. Additional duties of limited video lottery retailers.

In addition to the general duties imposed on all licensees in §29-22B-701 of this code, a limited video lottery retailer shall:

(1) Attend all commission mandated meetings, seminars, and training sessions concerning operation of video lottery terminals, the validation and redemption of video lottery winning tickets, and the operation of all ticket validation terminals and equipment;

(2) Maintain all skills necessary for the accurate validation of video lottery tickets;

(3) Supervise video lottery operations and ticket validation procedures at the applicable location;

(4) Permit no person to tamper with or interfere with the operation of any video lottery terminal;

(5) Ensure that telephone lines from the commission’s central control computer to the video lottery terminals located at the approved location are at all times connected, and prevent any person from tampering or interfering with the operation of the telephone lines;

(6) Ensure that video lottery terminals are within the sight and control of designated employees of the limited video lottery retailer;

(7) Ensure that video lottery terminals are placed and remain placed in the specific locations which have been approved by the commission. A video lottery terminal in a restricted access adult-only facility may not be relocated within the facility without the prior written approval of the commission;

(8) Monitor video lottery terminals to prevent access to or play by persons who are under the age of 21 years or who are visibly intoxicated;

(9) Maintain at all times sufficient change and cash in the denominations accepted by the video lottery terminals;

(10) Provide no access by a player to an automated teller machine (ATM) in the restricted access adult-only facility where video lottery games are played, accept no credit card or debit card from a player for the exchange or purchase of video lottery game credits or for an advance of coins or currency to be utilized by a player to play video lottery games, and extend no credit, in any manner, to a player so as to enable the player to play a video lottery game;

(11) Pay for all credits won upon presentment of a valid winning video lottery ticket;

(12) Report promptly in writing to the operator and the commission all video lottery terminal malfunctions and notify the commission in writing of the failure of an operator or service technician to provide prompt service and repair of the terminals and associated equipment;

(13) Conduct any video lottery advertising or promotional activities only in accordance with legislative rules promulgated pursuant to §29A-3-1 et seq. of this code;

(14) Install, post, and display prominently within or about the approved location signs, redemption information and other promotional material as required by the commission;

(15) Permit video lottery to be played only during those hours established and approved by the commission: Provided, That the limited video lottery retailer shall not permit video lottery to be played beyond the hour during which liquor may be served;

(16) Contract with no more than one licensed operator for the placement of video lottery terminals at the licensed location;

(17) Maintain insurance covering all losses as the result of fire, theft, or vandalism to video lottery terminals and associated equipment; and

(18) Comply with all applicable provisions of this article and rules and orders of the commission.

§29-22B-703. Additional duties of limited video lottery retailers who are permittees.

In addition to the general duties imposed on all licensees in section 22B-701 and the additional duties imposed on all limited video lottery retailers in section 22B-702, a limited video lottery retailer who is a permittee shall:

(1) Acquire video lottery terminals by purchase, lease or other assignment only from licensed manufacturers;

(2) Acquire no video lottery terminals in excess of the number he or she is authorized to operate in this state as stated in the permit issued under part 11 of this article;

(3) Pay for the installation and operation of commission approved telephone lines to provide direct dial-up or on-line communication between each video lottery terminal and the commission's central control computer;

(4) Purchase or lease and install computer controller units and other associated equipment required by the commission for video lottery terminals owned or leased by the permittee;

(5) Ensure that telephone lines from the commission's central control computer to the video lottery terminals located at the approved location are at all times connected, and prevent any person from tampering or interfering with the operation of the telephone lines;

(6) Assume financial responsibility for proper and timely payments of all credits awarded to players in accordance with legislative rules promulgated by the commission;

(7) Enter into contracts with a licensed operator, licensed manufacturer or other businesses to provide for the maintenance and repair of video lottery terminals and associated equipment only by individuals who are licensed service technicians or employ one or more licensed service technicians, and to provide for the placement of video lottery terminals pursuant to the provisions of this article;

(8) Promptly notify the commission in writing of any breaks or tears to any logic unit seals;

(9) Assume liability for all amounts due to the commission in connection with any money lost or stolen from any video lottery terminal; and

(10) Maintain a separate bank account into which the limited video lottery retailer shall deposit the gross terminal income from all of the limited video lottery retailer's video lottery terminals.

§29-22B-704. Duties of limited video lottery retailer regarding payment of credits.

(a) A limited video lottery retailer shall not make payment for credits awarded on a video lottery terminal unless the ticket meets the following requirements:

(1) The ticket is fully legible and printed on paper approved by the commission and the ticket contains all information required by this article;

(2) The ticket is not mutilated, altered, unreadable or tampered with in any manner;

(3) The ticket is not counterfeit, in whole or in part; and

(4) The ticket is presented by a person authorized to play video lottery pursuant to this article.

(b) Each limited video lottery retailer shall redeem tickets during the business hours of operation. Credits shall be immediately paid in cash or by check when a player presents a valid ticket for payment. No credits may be paid in tokens, chips or merchandise. The limited video lottery retailer is responsible for all income tax reporting of prize payments paid to players above the threshold set by the United States Internal Revenue Service.

(1) A limited video lottery retailer may not redeem tickets for credits awarded on a video lottery terminal that is not located on its premises;

(2) A ticket must be presented for payment no later than ten days after the date the ticket is printed. The commission is not liable for the payment of any video lottery ticket credits.

(c) A limited video lottery retailer shall deface all redeemed tickets in a manner that prevents any subsequent presentment and payment.

(d) The commission is not responsible for any video lottery terminal malfunction that causes a credit to be wrongfully awarded or denied to players. The permittee is solely responsible for any wrongful award or denial of credits.

§29-22B-705. Additional duties of manufacturers.

In addition to the general duties imposed on all licensees in section 22B-701 of this article, a manufacturer shall:

(1) Manufacture terminals and associated equipment for placement in this state in accordance with the specifications and procedures specified in part 9 of this article;

(2) Manufacture terminals and associated equipment to ensure timely delivery to licensed permittees;

(3) Maintain and provide an inventory of spare parts to assure the timely repair and continuous operation of licensed video lottery terminals intended for placement in this state;

(4) Pay no compensation of any kind to any limited video lottery retailer or give or transfer anything of value to any limited video lottery retailer, beyond a nominal consideration of $1 per year;

(5) Provide to licensed permittees technical assistance and training in the service and repair of video lottery terminals and associated equipment so as to assure the continuous authorized operation and play of the video lottery terminals;

(6) Obtain certification of compliance under the provisions of part 15 of the federal communication commission rules for all video lottery terminals placed in this state;

(7) Comply with all applicable provisions of this article and rules and orders of the commission; and

(8) Sell or lease video lottery terminals or associated equipment to a permittee who is a limited lottery retailer under terms and conditions that are no more favorable than the terms and conditions under which similar terminals or equipment are generally sold or leased to permittees who are licensed operators.

§29-22B-706. Additional duties of operators.

In addition to the general duties imposed on all licensees in §29-22B-701 of this code, an operator shall:

(1) Acquire video lottery terminals by purchase, lease, or other assignment only from licensed manufacturers;

(2) Acquire no video lottery terminals in excess of the number they are authorized to operate in this state as stated in the permit issued under part 11 of this article;

(3) Contract with limited video lottery retailers for a secure location for the placement, operation, and play of the video lottery terminals;

(4) Pay no compensation of any kind to any limited video lottery retailer or give or transfer anything of value to any limited video lottery retailer, that is in addition to the consideration stated in the written agreement between the operator and the limited video lottery retailer, which may be not less than 40 percent nor more than 50 percent of the amount of net terminal income received by the operator in connection with the video lottery terminals at that location;

(5) Pay for the installation and operation of commission approved telephone lines to provide direct dial-up or on-line communication between each video lottery terminal and the commission’s central control computer;

(6) Purchase or lease and install computer controller units and other associated equipment required by the commission for video lottery terminals owned or leased by the permittee;

(7) Permit no person to tamper with or interfere with the operation of any video lottery terminal;

(8) Ensure that telephone lines from the commission’s central control computer to the video lottery terminals located at the approved location are at all times connected, and prevent any person from tampering or interfering with the operation of the telephone lines;

(9) Ensure that video lottery terminals are placed and remain placed in the specific places within the approved restricted access adult-only facility that have been approved by the commission. No video lottery terminal in a restricted access adult-only facility may be relocated within the restricted access adult-only facility without the prior written approval of the commission;

(10) Assume financial responsibility for proper and timely payments by limited video lottery retailers of all credits awarded to players in accordance with legislative rules promulgated by the commission;

(11) Enter into contracts with limited video lottery retailers to provide for the maintenance and repair of video lottery terminals and associated equipment only by licensed service technicians, and to provide for the placement of video lottery terminals pursuant to the provisions of this article;

(12) Conduct any video lottery advertising and promotional activities only in accordance with legislative rules promulgated pursuant to §29A-3-1 et seq. of this code;

(13) Install, post, and display prominently within or about the approved location signs, redemption information and other material as required by the commission;

(14) Maintain general liability insurance coverage for all video lottery terminals in an amount of at least $1 million per claim;

(15) Promptly notify the commission in writing of any breaks or tears to any logic unit seals;

(16) Assume liability for all amounts due to the commission in connection with any money lost or stolen from any video lottery terminal;

(17) Comply with all applicable provisions of this article and rules and orders of the commission; and

(18) Maintain a separate bank account into which the operator shall deposit the gross terminal income from all of the operator’s video lottery terminals.

§29-22B-707. Additional duties of service technicians.

In addition to the general duties imposed on all licensees in section 22B-701 of this article, a service technician shall:

(1) Maintain all skills necessary for the timely repair and service of licensed video lottery terminals and associated equipment so as to ensure the continued, approved operation of those terminals;

(2) Attend all commission mandated meetings, seminars and training sessions concerning the repair and maintenance of licensed video lottery terminals and associated equipment;

(3) Promptly notify the commission in writing of any electronic or mechanical video lottery terminal malfunctions; and

(4) Comply with all applicable provisions of this article and rules and orders of the commission.

PART 8. APPROVAL OF VIDEO LOTTERY

TERMINALS AND ASSOCIATED EQUIPMENT.

§29-22B-801. Manufacturer seeking approval of terminal must be licensed; prohibition against placement of unapproved terminal.

(a) Only licensed manufacturers may apply to the Lottery Commission for approval of a video lottery terminal or associated equipment.

(b) A manufacturer may not sell or lease a video lottery terminal for placement in a licensed facility in the state unless the terminal has been approved by the Lottery Commission.

§29-22B-802. Testing of video lottery terminals and associated equipment.

(a) The manufacturer shall submit two copies of terminal illustrations, schematics, block diagrams, circuit analysis, technical and operation manuals, and any other information requested by the commission for the purpose of analyzing and testing the video lottery terminal or associated equipment.

(b) The Lottery Commission may require that the manufacturer transport two working models of a video lottery terminal to the location designated by the Lottery Commission for testing, examination and analysis. When this is required:

(1) The manufacturer shall pay all costs of testing, examination, analysis and transportation of the video lottery terminal models. The testing, examination and analysis of any video lottery terminal model may require dismantling of the terminal, and some tests may result in damage or destruction to one or more electronic components of the terminal model. The Lottery Commission may require that the manufacturer provide specialized equipment or pay for the services of an independent technical expert to test the terminal; and

(2) The manufacturer shall pay the cost of transportation of two video lottery terminals to lottery headquarters. The Lottery Commission shall conduct an acceptance test to determine terminal functions and central system compatibility. If the video lottery terminal fails the commission conducted acceptance test, the manufacturer shall make all modifications required by the commission.

§29-22B-803. Reporting of testing results.

After each test has been completed, the commission shall provide the terminal manufacturer with a report containing findings, conclusions and pass/fail results. The report may contain recommendations for video lottery terminal modification to bring the terminal into compliance with the provisions of this article.

PART 9. VIDEO LOTTERY HARDWARE AND SOFTWARE.

§29-22B-901. Hardware specifications.

Video lottery terminals licensed for placement in this state must meet the hardware specifications set forth in this part 9.

§29-22B-902. Control of electrical power.

(a) A surge protector shall be installed on the electrical power supply line to each video lottery terminal. A battery or equivalent power back-up for the electronic meters shall be capable of maintaining accuracy of all accounting records and terminal status reports for a period of ninety days after power is disconnected from the terminal. The power back-up device shall be located within the locked logic board compartment of the video lottery terminal.

(b) An on/off switch that controls the electrical current used in the operation of the terminal shall be located in an accessible place within the interior of the video lottery terminal.

(c) The operation of each video lottery terminal may not be adversely affected by any static discharge or other electromagnetic interference.

§29-22B-903. Coin or bill acceptors.

(a) A minimum of one electronic or mechanical coin acceptor or other means by which to accurately and efficiently establish credits must be installed on each video lottery terminal. Each video lottery terminal may also contain bill acceptors.

(b) The Lottery Commission shall approve all coin and bill acceptors prior to use on any video lottery terminal in this state.

(c) A video lottery terminal shall not allow more than $5 to be wagered on a single game.

§29-22B-904. Security; access to the interior of video lottery terminals.

(a) Access to the interior of video lottery terminals shall be controlled through a series of locks and seals.

(b) The main logic boards and all erasable programmable read-only memory chips (EPROMS) are considered to be owned by the Lottery Commission and shall be located in a separate locked and sealed area within the video lottery terminal.

(c) The cash compartment shall be located in a separate locked area within or attached to the video lottery terminal.

(d) No hardware switches, jumpers, wire posts or any other means of manipulation may be installed which alter the pay tables or payout percentages in the operation of a game. Hardware switches on a video lottery terminal intended to control the terminal's graphic routines, speed of play, sound and other purely cosmetic features may not be used without the written approval of the commission.

(e) All video lottery terminals shall have a security system which will temporarily disable the gaming function of the terminal while opened.

§29-22B-905. Printing mechanism.

Each video lottery terminal must contain a single printing mechanism capable of printing an original ticket and retaining an exact legible copy within the video lottery terminal, or other means of capturing and retaining an electronic copy of the ticket data as approved by the Lottery Commission. The following information must be recorded on the ticket when credits accrued on a video lottery terminal are redeemed for cash:

(1) The number of credits accrued;

(2) The value of the credits in dollars and cents displayed in both numeric and written form;

(3) The time of day and date;

(4) The validation number; and

(5) Any other information required by the commission.

§29-22B-906. Identification plate.

A permanently installed and affixed identification plate shall appear on the exterior of each video lottery terminal and the following information shall be on the plate:

(1) The manufacturer of the video lottery terminal;

(2) The serial number of the terminal; and

(3) The model number of the terminal.

§29-22B-907. Display of information on terminal face or screen.

All information required by this section must be displayed under glass or another transparent substance.

(1) The rules of play for each game shall be displayed on the video lottery terminal face or screen. The commission may reject any rules of play that are incomplete, confusing, misleading or inconsistent with game rules approved by the commission.

(2) For each video lottery game, there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of numbers or symbols.

(3) No stickers or other removable devices shall be placed on the video lottery terminal screen or face without the prior written approval of the commission.

(4) A label prominently displaying information on how to locate and contact persons or organizations available for help, assistance or treatment for persons who may have a gambling addiction, together with the telephone number "1-800-GAMBLER."

§29-22B-908. Communication with central computer system.

Communication equipment and devices shall be installed to enable each video lottery terminal to communicate with the Lottery Commission's central computer system. The commission shall provide to licensed manufacturers, or applicants applying for a manufacturer's license, the protocol documentation data necessary to enable the respective manufacturer's video lottery terminals to communicate with the commission's central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.

§29-22B-909. Random number generator required.

Each video lottery terminal shall have a random number generator to determine randomly the occurrence of each specific symbol or number used in video lottery games. A selection process is random if it meets the following statistical criteria:

(1) Chi square test. -- Each symbol or number shall satisfy the ninety-nine percent confidence limit using the standard chi-square statistical analysis of the difference between the expected result and the observed result;

(2) Runs test. -- Each symbol or number may not produce a significant statistic with regard to producing patterns of occurrences. Each symbol or number is random if it meets the ninety-nine percent confidence level with regard to the "runs test" for the existence of recurring patterns within a set of data;

(3) Correlation test. -- Each pair of symbols or numbers is random if it meets the ninety-nine percent confidence level using standard correlation analysis to determine whether each symbol or number is independently chosen without regard to another symbol or number within a single game play; and

(4) Serial correlation test. -- Each symbol or number is random if it meets the ninety-nine percent confidence level using standard serial correlation analysis to determine whether each symbol or number is independently chosen without reference to the same symbol or number in a previous game.

§29-22B-910. Payout standards.

Each video lottery terminal shall meet the following maximum and minimum theoretical percentage payout during the expected lifetime of the terminal:

(1) Video lottery games shall pay out no less than eighty percent and no more than ninety-five percent of the amount wagered. The theoretical payout percentage shall be determined using standard methods of probability theory;

(2) Manufacturers shall file a request and receive written approval from the commission prior to manufacturing for placement in this state video lottery games programmed for a payout greater than ninety-two percent of the amount wagered. Commission approval shall be obtained prior to applying for testing of the high payout terminals; and

(3) Each game shall have a probability greater than one in seventeen million of obtaining the maximum payout for each play.

§29-22B-911. Continuation of current game after malfunction.

Each video lottery terminal shall be capable of continuing the current game with all current game features after a video lottery terminal malfunction is cleared. If a video lottery terminal is rendered totally inoperable during game play, the limited video lottery retailer shall return the current wager and all credits appearing on the video lottery terminal screen prior to the malfunction to the player.

§29-22B-912. Electronic accounting required.

(a) Each video lottery terminal shall at all times maintain electronic accounting regardless of whether the terminal is being supplied with electrical power. Each meter shall be capable of maintaining a total of no less than eight digits in length for each type of data required. The electronic meters shall record the following information:

(1) The number of coins inserted by players or the coin equivalent if a bill acceptor is being used;

(2) The number of credits wagered;

(3) The number of credits won;

(4) The number of credits paid out by a printed ticket;

(5) The number of times the logic area was accessed;

(6) The number of times the cash door was accessed;

(7) The number of credits wagered in the current game;

(8) The number of credits won in the last complete video lottery game; and

(9) The number of cumulative credits representing money inserted by a player and credits for video lottery games won but not collected.

(b) No video lottery terminal may have any mechanism that would allow the electronic accounting meters to clear automatically. Electronic accounting meters may not be cleared without the prior approval of the commission. Both before and after any electronic accounting meter is cleared, the limited video lottery retailer shall record all meter readings in the presence of a commission employee.

PART 10. CONDITIONS FOR SALE OR LEASE

OF VIDEO LOTTERY TERMINALS.

§29-22B-1001. Manufacturer must be licensed.

A manufacturer of video lottery terminals may not sell or lease video lottery terminals to any person for use in this state unless the manufacturer possesses a current manufacturer's license issued by the Lottery Commission as provided in this article.

§29-22B-1002. Manufacturers may sell or lease only to permittees.

A licensed manufacturer of video lottery terminals may only sell or lease video lottery terminals for use in this state to a person who possesses at the time of delivery a valid permit to own or lease one or more video lottery terminals and a valid operator's license or a valid limited video lottery retailer's license issued by the Lottery Commission as provided in this article.

§29-22B-1003. Terminals must be approved.

A licensed manufacturer may not sell or lease a video lottery terminal for placement by a permittee in this state unless the terminal has been approved by the Lottery Commission as provided in this article.

§29-22B-1004. Purchase or lease by permittees.

Only permittees may purchase or lease video lottery terminals from a licensed manufacturer.

§29-22B-1101. Limitation on number and location of video lottery terminals.

(a) The Lottery Commission may not authorize the placement of more than nine thousand video lottery terminals in restricted access adult-only facilities in this state.

(b) No person may directly or indirectly operate more than seven and one-half percent of the number of video lottery terminals authorized in this section, which may be located only in restricted access adult-only facilities.

(c) No licensed limited video lottery retailer may be authorized to have on the premises for which the license was issued more than seven video lottery terminals except that on and after July 1, 2021, the Commission, upon recommendation of the Director, may authorize one or more licensed limited video lottery retailers to have on the premises for which the limited video lottery retailer’s license was issued no more than ten video lottery terminals.

(2) Notwithstanding the limitation imposed by subdivision (1) of this subsection, a fraternal society or veterans’ organization that is: (A) A fraternal beneficiary society that is exempt from federal income tax under section 501(c)(8) of the Internal Revenue Code of 1986, as amended; (B) a domestic fraternal society that is exempt from federal income tax under section 501(c)(10) of the Internal Revenue Code of 1986, as amended; or (C) a veterans’ organization that is exempt from federal income tax under section 501(c)(19) of the Internal Revenue Code of 1986, as amended, may be authorized to have on the premises for which the license was issued not more than ten video lottery terminals.

(d) Pursuant to the increase of the number of video lottery terminals authorized in subsection (c) of this section, effective July 1, 2021, the commission shall conduct a bidding process no later than October 1, 2021, for permits for additional terminals. Any permits for which a successful bid is made shall expire June 30, 2031. The bidding process is open to current permit holders only and shall be conducted in accordance with §29-22B-1106, §29-22B-1107 and §29-22B-1109 of this article.

(e) The amendments to this section enacted in 2021 shall be effective on and after July 1, 2021.

§29-22B-1102. Permits to operate video lottery terminals; expiration date; annual fee to be paid by May 1st.

(a) The Lottery Commission shall establish forms for an operator's permit to own or lease and operate video lottery terminals and a permit for a limited video lottery retailer that allows the holder to own or lease video lottery terminals from a licensed manufacturer. The number of video lottery terminals that a person may own or lease or have on a limited video lottery retailer premises shall be stated in the license or permit issued by the commission as provided in this article.

(b) Permits shall be issued by the commission for a period of ten years, except that all permits expire on June 30, 2011, unless they are sooner surrendered, modified, suspended or revoked as provided in this article: Provided, That the annual fee imposed by this part for each video lottery terminal authorized in the permit shall be paid on or before May 1 each year.

§29-22B-1103. Permit fee.

(a) For the privilege of holding a permit that authorizes the licensee to own or lease video lottery terminals from a licensed manufacturer, the person shall pay an annual fee of $1,000 per video lottery terminal for which the permit is issued.

(b) (1) Notwithstanding any provision of subsection (a) of this section to the contrary, for the fee due and payable May 1, 2023, and each May 1 thereafter until and including May 1, 2030:

(A) The annual fee shall be $1,000 per video lottery terminal for terminals that utilize the 10 percent lowest performing software versions, as measured by daily net terminal income of all terminals available for play; and

(B) For permit holders who own or lease terminals with software versions that outperform the 10 percent lowest performing software versions by more than $500 annual net terminal income for the State of West Virginia, the permit holder will pay a reduced fee of $500 per terminal annually.

(2) For the fee due and payable May 1, 2023, the West Virginia Lottery shall compute the daily average net terminal income for each version of operating software used in all terminals in play from July 1, 2022, until February 28, 2023, and prepare a report listing the 10 percent of all the versions of operating software having the lowest daily net terminal income over that period, the permit holders who may receive the $500 annual reduced fee per terminal, and the total amount of any such reduced fee for each permit holder. When calculating the daily average net terminal income, a software that is in play for any number of days during a month shall be considered as operating the full number of days in that month. For subsequent years, the West Virginia Lottery shall compute the daily average net terminal income for each version of operating software used in all terminals in play from March 1st of the preceding year until the last day of February and prepare a report listing the 10 percent of all the versions of operating software having the lowest daily net terminal income over that period, the permit holders who may receive the $500 annual reduced fee per terminal, and the total amount of any such reduced fee for each permit holder. Should a group of terminals with a software version be partially included in the 10 percent calculation, the entire group shall not be eligible for the reduced fee. Furthermore, a terminal must be active and operational for a period of 60 days to be eligible for the reduced fee. This subsection will terminate and have no force or effect after May 1, 2030.

(c) The fee shall initially be paid at the time the permit is issued for the number of video lottery terminals a person is authorized to own or lease without going through the bid process. Thereafter, this fee shall be due and payable each first day of May while the person holds the permit and the amount of the fee shall be determined by the number of video lottery terminals the person is permitted to own or lease from a licensed manufacturer.

§29-22B-1104. Reservation of authority to have video lottery terminals on or before August 1, 2001.

(a) On or before August 1, 2001, every person who held on January 1, 2001, a private club license issued as provided in article 60-7-1 et seq. of this code, or a Class "A" nonintoxicating beer license issued as provided in article 11-16-1 et seq. of this code, and wants to offer video lottery terminals, as defined in this article, for the enjoyment of the licensee's customers after the effective date of this article shall file an application to be licensed as a limited video lottery retailer under this article.

(b) The applications described in subsection (a) of this section shall be in the form prescribed by the Lottery Commission, be signed by the applicant or a person authorized to sign an application filed for a person who is not an individual, and provide all of the information requested by the Lottery Commission. The commission shall not consider any application that is incomplete in any material respect and the incomplete application shall be returned to the applicant for completion and refiling. An incomplete application submitted for a limited video lottery retailer's license shall be returned to the applicant for completion and refiling by August 1, 2001.

(c)(1) An application filed on or before August 1, 2001 for a limited video lottery retailer's license shall state the number of video lottery terminals to be located on the premises of the applicant and state whether the applicant will own or lease the video lottery terminals or obtain them from an operator.

(2) The number of video lottery terminals a limited video lottery retail licensee is authorized to have on its premises shall be stated in the limited video lottery retailer's license issued to the licensee. The number of video lottery terminals a limited video lottery retailer is authorized to own or lease from a manufacturer shall be stated in the permit issued to the licensee. Once the permit is issued, the permittee may purchase or lease the number of video lottery terminals authorized in the permit. A limited video lottery retailer who elects to obtain video lottery terminals from an operator may contract with an operator for the number of video lottery terminals stated in the license.

(d) Authorization to have a video lottery terminal on the premises of a video lottery retailer expires on June 30, 2011, and every ten years thereafter unless during the fiscal year of the state ending June 30, 2011, and each ten years thereafter, the video lottery retailer files an application as provided in this section for the next ensuing ten-year period.

§29-22B-1105. Determination of authorizations to be issued without bid and number of authorizations to be bid.

(a) When the applications provided for in section 22B-1104 of this part are received by the commission on or before August 1, 2001, the commission shall reserve for each applicant authorizations to have no more than two video lottery terminals on the premises for which the private club license issued under article 60-7-1 et seq., of this code, or a Class "A" nonintoxicating beer license was issued prior to January 1, 2001, except that a fraternal society or veteran's organization that is (A) a fraternal beneficiary society that is exempt from federal income tax under section 501(c)(8) of the Internal Revenue Code of 1986, as amended, (B) a domestic fraternal society that is exempt from federal income tax under section 501(c)(10), or (C) a veterans' organization that is exempt from federal income tax under section 501(c)(19) of the Internal Revenue Code may be authorized to have on the premises for which the license was issued not more than seven video lottery terminals.

(b) The commission shall then determine the total number of authorizations to have video lottery terminals reserved under subsection (a) of this section and subtract that number from the total number of video lottery terminals authorized for the state in section 22B-1101 of this part. This establishes the number of authorizations available for bid as provided in section 22B-1106.

(c) If an application for a limited video lottery retailer's license is received after August 1, 2001, whether from an applicant who on January 1, 2001, held a private club license issued under article 60-7-1, et seq., of this code or a Class "A" nonintoxicating beer license issued under article 11-16-1, et seq., of this code, or from an applicant who is issued a private club license or a Class "A" nonintoxicating beer license after January 1, 2001, no authorization to have video lottery terminals may be reserved for that applicant under this section. The applicant may contract with a licensed operator to furnish video lottery terminals or may submit a bid for authorization to own video lottery terminals as provided in section 22B-1106 of this part.

(d) As used in this section the term "received" means physically received in the office of the state lottery by 4:30 p.m. on August 1, 2001.

§29-22B-1106. Allocation of permits to own or lease video lottery terminals by sealed bid.

(a) Any video lottery terminals not authorized by the commission under section 1105 of this article shall be allocated under the provisions of this section by sealed competitive bid.

(b) Bids for permits to own or lease video lottery terminals shall be governed by the provisions of this part 11.

(c) A permit to own or lease one or more video lottery terminals, as defined in this article, may only be issued to a person who is licensed as an operator or a limited video lottery retailer under this article.

(d) All permits issued under this section shall be based on sealed competitive bids in accordance with the provisions of this section.

(e) The commission may set a single uniform minimum bid for each video lottery terminal for which bids are sought. Each time before the first publication of a legal notice soliciting bids, the commission may set a new minimum bid.

§29-22B-1107. Bidding process.

(a) Bids for issuance of permits shall be obtained by public notice published as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code.

(b) The second publication of the notice shall appear more than 60 days next preceding the final day for submitting bids.

(c) Each bid shall indicate the number of video lottery terminals for which the permit is sought. The bid shall state the amount bid for each video lottery terminal for which the permit is sought.

(d) No bid may be altered or withdrawn after the appointed hour for the opening of the bids.

(e) Subject to the provisions of subsection (f) of this section, permits shall be awarded to the persons submitting the highest per terminal bids, except that no person may be authorized to directly or indirectly own or lease more than seven and one-half percent of the total number of video lottery terminals authorized in §29-22B-1101 of this code. If a high bidder already holds a permit issued under this section, the bid shall be awarded to that bidder, but only to the extent the total number of video lottery terminals the operator or limited video lottery retailer is authorized to directly or indirectly own or lease does not exceed seven and one-half percent of the number of video lottery terminals authorized for the entire state specified in §29-22B-1101 of this code.

(f) No bid may be considered unless the bond required by §29-22B-1109 of this code accompanies the bid or was submitted to the State Treasurer before the time designated for opening of the bid.

(g) No bid may be considered unless the amount of the bid equals or exceeds the minimum bid amount for a video lottery terminal specified by the commission.

(h) All bids for a permit may be rejected by the commission if the commission determines that the bids are inadequate. In this event, the director shall begin anew the bidding process for the permits.

(i) Whenever there are two or more bids of the same dollar amount and the number of authorizations for which the bids were submitted exceeds the number of authorizations still available to fill the bids, the director shall award the permit based upon the drawing of lots among the bidders.

(j) A person submitting a bid under this article shall deliver one copy to the Director of Purchasing of the Purchasing Division within the Department of Administration. The bid must be received at the designated office location prior to the specified date and time of the bid opening.

(k) The failure to deliver or the nonreceipt of the bid forms at the designated office location prior to the appointed date and hour are grounds for rejection of the bid.

(l) After the award of a permit, the Director of the Lottery shall indicate upon the successful bid that it was the successful bid and the number of video lottery terminals for which a permit is awarded to the bidder. This shall be the number of video lottery terminals for which the bid was submitted, or the remaining number of video lottery terminals to be awarded when the number of video lottery terminals remaining is less than the number of terminals for which the bid was submitted. Thereafter, a copy of the bid and the bidder’s application for an operator’s license or a limited video lottery retailer license shall be maintained as a public record at the commissions’ offices and shall be open to public inspection during its normal business hours. These documents may not be destroyed without the prior written consent of the Legislative Auditor.

(m) Prior to issuing a permit to a successful bidder, the bid price for the number of video lottery terminals authorized in the permit plus the amount of the operator’s annual license fee or the limited video lottery retailer’s annual license fee for the first license year, as specified in §29-22B-518 of this code shall be paid to the commission by money order, certified check or cashier’s check. If the operator’s annual license fee or the limited video lottery retailer’s license fee was paid for the current license year before the due date of the bid amount, the license fee may not be collected a second time for the same license year. The amount paid shall be deposited into the fund established in §29-22-18a of this code.

(n) All permits shall be signed by the Director of the Lottery in the name of the state.

(o) If the successful bidder fails to pay to the commission the bid price and the operator’s annual license fee or the limited video lottery retailer’s license fee for the first license year, at the time specified by the commission, the bond provided for in §29-22B-1109 of this code shall be forfeited and the bidder may not be issued the permit.

(p) In the event of a default, as provided in subsection (h) of this section, the commission shall then issue the permit to the next highest bidder for video lottery terminals, or reject all remaining bids and start anew the bidding procedure for the remaining number of video lottery terminals.

(q) If after a permit is awarded, an operator or limited video lottery retailer surrenders the permit, in whole or in part, or the permit is revoked or canceled by operation of law, the commission may seek bids for video lottery terminals for which authorization was surrendered or revoked, subject to the limitations and requirements of this article.

(r) During the fiscal year of the state ending June 30, 2011, the commission shall seek bids for the 10-year period beginning July 1, 2011, and ending June 30, 2021.

(s) For all bids conducted subsequent to June 30, 2011, the commission shall give a priority preference, to allow current permit holders to acquire permits which are held by those permit holders at the minimum stated bid price before those permits are made available for bid to other applicants.

§29-22B-1108. Preference for current permit holders.

(a) When seeking bids for the ten-year period beginning July 1, 2011, and ending June 30, 2021, and for each subsequent ten-year period, the commission shall, in determining the amount a current holder of a permit issued under section 1106 of this article shall pay for authorization to place additional video lottery terminals in this state, afford the bidder an additional preference, if the bidder submitted at least the minimum bid amount prescribed by the commission, the amount of which shall be determined as provided in subsection (b) of this section.

(b) The preference allowed by this section shall be computed by adding five percent of the bid price submitted by the current permit holder to the amount of the bid submitted by that holder.

(c) Where the commission determines that it has not issued permits for the number of video lottery terminals allowed to be placed in this state, as provided in section 1101 of this article, the commission shall allow current permit holders to bid on the remaining video lottery terminals before opening up the bidding to other persons. If the highest bid meets or exceeds the minimum bid, the commission shall determine whether, at the time of the bid, the bidder held a permit for the period ending June 30, 2011, or for any ten-year period thereafter, on June 30 preceding the expiration of the permit. If the current permit holder submitted a bid that was not less than the minimum bid, the commission shall notify the bidder that upon paying the amount of the highest bid, that the permit for the ten-year period beginning July 1, 2011, or for any ten-year period thereafter, shall be issued to the current permit holder. If, within the time determined by the commissioner, the current permit holder pays the amount to the commission and complies with all other requirements imposed by the provisions of this article for the issuance of the permit, the permit for the ten-year period beginning July 1, 2011, or for any ten-year period thereafter, shall be issued to the current permit holder.

§29-22B-1109. Bid bond required.

(a) Each person submitting a bid under section 22B-1107 of this article shall furnish to the commission a bond at the time of bidding, which shall guarantee the payment of one hundred percent of the price bid for the permit sought by the bidder.

(b) The bond required by this section shall be furnished in cash or negotiable securities or shall be a surety bond issued by a surety company authorized to do business with the state or an irrevocable letter of credit issued by a financial institution acceptable to the commission.

(c) If the bid bond is furnished in cash or negotiable securities, the principal shall be deposited without restriction in the State Treasurer's office and credited to the commission, but any income shall inure to the benefit of the bidder.

(d) The bond shall be returned to the bidder following the bidding if the bidder is not a successful bidder for authorization to place video lottery terminals in this state, as provided in this article.

(e) If the bidder is a successful bidder, the bid bond shall be released after the permit is issued, as provided in section 1106 of this article.

(f) If a successful bidder defaults in paying the amount due by the date specified by the commission, as provided in section 1106 of this article, the bid bond shall be forfeited to the state.

(g) If the defaulting bidder was successful only in part because the bid submitted was for authorization to place more video lottery terminals than were awarded to the bidder, the amount of the bid bond shall be prorated and the portion of the bid bond attributable to video lottery terminals not awarded to the defaulting bidder shall be returned to the bidder and the rest shall be forfeited to the state.

§29-22B-1110. Operator permit.

(a) An operator who holds a permit issued under this section may operate the number of video lottery terminals specified in the permit.

(b) The number of video lottery terminals authorized in the permit shall be the sum of the number of authorizations for which the operator is the successful bidder under this section plus the number of authorizations reserved under section 22B-1104 of this article for video lottery retailers that elect to obtain video lottery terminals from the operator. If after the permit is issued, the operator enters into additional contracts with limited video lottery retailers with authorizations issued under section 22B-1104 or obtains additional authorizations through the bidding process, the operator shall apply to the commission for a supplemental permit to operate the number of video lottery terminals set forth in the application. Attached to the application shall be a true copy of all contracts the applicant has entered into with persons who hold a limited video lottery retailer's license issued under this article for placement of video lottery terminals in the premises of the limited video lottery retailer for whom authorizations were reserved under section 22B-1104 of this article and a true copy of the certificate of reservation issued by the commission to that video lottery retailer.

(c) The contract between the operator and the limited video lottery retailer shall be in writing and be signed by the parties, or their duly authorized representative when the party is a person who is not an individual.

§29-22B-1111. Reduction of video lottery terminals authorized in a retailer's license.

If after a limited video lottery license is issued or a permit is issued, a retailer surrenders the license, in whole or in part, or the license is modified, revoked or canceled by operation of law, the Lottery Commission shall then allocate authorizations to operate those video lottery terminals through the bid process described in section 1107 of this part 11, subject to the limitations and requirements of this article.

§29-22B-1112. Reduction of gambling.

Each limited video lottery retailer shall conspicuously post in the restricted access adult-only facility and disseminate the telephone numbers of state approved providers of problem gambling information, treatment and referral support services and further conspicuously post the following: "CAUTION Gambling and playing this machine can be hazardous to your health, your finances, and your future."

§29-22B-1113. Operation of authorized video lottery terminals; forfeiture of authorization for failure to operate.

(a) A person who holds a permit or license to operate video lottery terminals shall place the video lottery terminals authorized by the license or permit in operation within six months after receiving the license or permit in which the terminals are first authorized. After January 1, 2002, a person who holds a permit or license to operate video lottery terminals shall place the video lottery terminals authorized by the license or permit in operation within ninety days after receiving the license or permit.

(b) After a video lottery terminal is connected to the commission's central site system of monitoring lottery terminals, the terminal may not be off-line for more than five consecutive days, unless the terminal is off-line due to fire, flood, or other act beyond the control of the operator. If the terminal is off-line due to fire, flood, or other act beyond the control of the operator, the terminal shall be reconnected to the commission's central site by the date ordered by the commission. The commission shall propose a legislative rule for promulgation in accordance with the provisions of article 29A-3-1, et seq., of this code, defining the term "other act beyond the control of the operator" and providing for application of this subsection (b).

(c) Except as otherwise provided in this section, authorization to operate a video lottery terminal that is not connected to the commission's central site system of monitoring lottery terminals shall be forfeited to the commission on the first day after expiration of the applicable period specified in this subsection (a) or (b) of this section.

§29-22B-1201. Placement of video lottery terminals.

(a) Video lottery terminals allowed by this article may be placed only in licensed limited video lottery locations approved by the commission.

(b) All video lottery terminals in approved locations shall be physically located as follows:

(1) The video lottery terminals shall be continuously monitored through the use of a closed circuit television system capable of identifying players and terminal faces and of recording activity for a continuous 24 hour period. All video tapes or other recording medium approved in writing by the commission shall be retained for a period of at least 60 days and be available for viewing by an authorized representative of the commission or the commissioner of alcohol beverage control. The cost of monitoring shall be paid by the limited video lottery retailer;

(2) Access to video lottery terminal locations shall be restricted to persons legally entitled by age to play video lottery games;

(3) The permittee shall submit for commission approval a floor plan of the area or areas where video lottery terminals are to be operated showing terminal locations and security camera mount location; and

(4) No video lottery terminal or video lottery camera may be relocated without prior written approval from the commission.

(c) Personnel of the limited video lottery retailer shall be present during all hours of operation at each video lottery terminal location. These personnel shall make periodic inspections of the restricted access adult-only facility in order to provide for the safe and approved operation of the video lottery terminals and the safety and well-being of the players.

(d) Security personnel of the commission and investigators of the Alcohol Beverage Control Commissioner shall have unrestricted access to video lottery terminal locations.

(e) Notwithstanding any other provision of this article to the contrary, the commission may not approve the placement of a video lottery terminal in a state park.

§29-22B-1202. No limited video lottery retailer license for premises within 150 feet of another licensed premises; no two license retailer locations within a common structure.

(a) A limited video lottery retailer license may not be granted for operation of video lottery terminals on a premises if, at the time of application for the license, the applicant’s premises are within 150 feet of, or has an external structural connection not amounting to a common internal wall to, a premises that already has a license for video lottery terminals.

(1) A measurement of the distance between two premises must be taken between the front door and the front door of each location, along the street or streets: Provided, That for the purposes of determining whether a limited video lottery retailer applicant that holds a private club license meets distance requirements for prohibited locations of licensees pursuant to §11-16-8(a)(5) of this code, the applicant’s location is deemed compliant upon the issuance of a valid license pursuant to §60-7-1 et seq. of this code.

(2) When determining common ownership, the commission shall consider direct as well as indirect ownership.

(b) A premises for which a private club license to dispense alcoholic liquors, under provisions of §60-7-1 et seq. of this code, or a Class A nonintoxicating beer license, under the provisions of §11-16-1 et seq. of this code, was granted, was applied for, or the transfer of which was validly contracted for prior to January 1, 2001, is not subject to subsections (a) and (c) of this section: Provided, That a fraternal organization for which a private club license to dispense alcoholic liquors, under the provisions of §60-7-1 et seq. of this code, or a Class A nonintoxicating beer license, under the provisions of §11-16-1 et seq. of this code, which was granted prior to January 1, 2001, and which has remained in continuous operation since January 1, 2001, may, for good cause shown, obtain approval to be exempt from subsections (a) and (c) of this section, upon approval of the Commission.

(c) No more than one restricted access adult-only facility shall hold a limited video lottery retailer license to offer video lottery terminals in any single structure under one roof.

§29-22B-1203. Registration decals.

(a) Each video lottery terminal placed in operation in this state shall have a commission registration decal permanently affixed, with a video lottery terminal registration control number placed on the video lottery terminal.

(b) No person other than authorized commission personnel shall affix or remove a registration control number. The affixing of the commission decal on a video lottery terminal evidences that the terminal has been registered, inspected, and approved for operation in this state.

(c) No terminal shall be transported out of this state until authorized commission personnel have removed the commission registration control number, except when the transportation of the terminal both begins and ends in this state.

§29-22B-1204. Installation of approved lottery terminals.

(a) The video lottery terminal manufacturer and licensed permittee are jointly responsible for the assembly and installation of all video lottery terminals and associated equipment.

(b) The manufacturer and licensed permittee may not change the assembly or operational functions of a terminal licensed for placement in West Virginia unless a request for modification of an existing video terminal prototype is approved in writing by the commission.

(c) The request for modification shall contain a detailed description of the type of change, the reasons for the change and technical documentation of the change.

(d) Each video lottery terminal approved for placement at a licensed location shall conform to the exact specifications of the video lottery terminal prototype tested and approved by the commission.

(e) If any video lottery terminal or any video lottery terminal modification which has not been approved by the commission is supplied by a manufacturer and operated by a licensed permittee, the video lottery terminal shall be prima facie determined to be contraband. The commission or any law-enforcement officer having jurisdiction shall seize and destroy all of the licensed permittee's and manufacturer's noncomplying video lottery terminals, as provided in part 18 of this article.

(f) In addition, the commission shall suspend the licenses of the licensed permittee and the licensed manufacturer for the period of time the commission considers to be appropriate under the circumstances and may impose a civil penalty, as provided in part 16 of this article.

§29-22B-1205. Transportation from manufacturer and registration of video lottery terminals.

(a) A manufacturer transporting or arranging for the transportation of one or more video lottery terminals into this state shall, prior to shipment, provide the commission with the following information on forms prescribed by the commission:

(1) The full name and address of the person shipping the video lottery terminals;

(2) The method of shipment and the name of the carrier;

(3) The full name and address of the permittee to which the video lottery terminals are being sent and the destination of the terminals if different from the address of the permittee;

(4) The number of video lottery terminals in the shipment;

(5) The serial number of each video lottery terminal in the shipment;

(6) The model number and description of each video lottery terminal in the shipment; and

(7) The expected arrival date of the video lottery terminals at their respective destination within this state.

(b) A permittee that purchases or leases a video lottery terminal shall, upon receipt of the terminal, provide the commission with the following information on forms prescribed by the commission:

(1) The full name and address of the limited video lottery retailer who will receive the video lottery terminal;

(2) The full name and address of the manufacturer from whom the video lottery terminal was received;

(3) The serial number of each video lottery terminal received;

(4) The model number and description of each video lottery terminal received;

(5) The date and time of video lottery terminal arrival; and

(6) The expected date and time of video lottery terminal installation.

(c) If a video lottery terminal is not placed in operation, the permittee shall notify the commission in writing of the location where the terminal is stored.

§29-22B-1206. Any other transportation of video lottery terminals.

(a) Any person who transports a video lottery terminal from one location to another in this state, other than for repair or servicing purposes, shall notify the commission in writing prior to the transportation of the terminal and provide the following information on forms required by the commission:

(1) The full name and address of the person or entity transporting the video lottery terminal;

(2) The reason for transporting the video lottery terminal;

(3) The full name and address of the person or entity to whom the terminal is being sent and the destination of the video lottery terminal if it is different from the address;

(4) The serial and model number of the video lottery terminal;

(5) The video lottery terminal license number, if affixed;

(6) The manufacturer of the video lottery terminal; and

(7) The expected date and time of video lottery terminal installation or reinstallation.

(b) Any person shipping video lottery terminals to a destination outside of this state shall, prior to the shipment, provide the commission with the following information on forms prescribed by the commission:

(1) The full name and address of the person shipping the video lottery terminals;

(2) The method of shipment and the name of the carrier;

(3) The full name and address of the person to whom the video lottery terminals are being sent and the destination of the video lottery terminals if different from the address;

(4) The serial number of each video lottery terminal being shipped;

(5) The model number and description of the video lottery terminal being shipped;

(6) The video lottery terminal control number, if affixed;

(7) The manufacturer of the video lottery terminal being shipped; and

(8) The expected date and time of the shipment.

PART 13. MAINTENANCE AND REPAIR

OF VIDEO LOTTERY TERMINALS.

§29-22B-1301. Maintenance of video lottery terminals.

(a) No video lottery terminal may be placed in operation in this state until the manufacturer provides training in the service and repair of each approved video lottery terminal model and service technicians complete the training.

(b) Manufacturers shall submit to the commission the following information on each training program conducted:

(1) An outline of the training curriculum;

(2) A list of the instructors and their qualifications;

(3) Instructional materials; and

(4) The time, dates and location of the training programs.

(c) Manufacturers shall notify all licensed permittees who have purchased or leased that manufacturer's video lottery terminals of all scheduled training programs.

(d) The manufacturers shall schedule training programs at convenient locations within this state to facilitate attendance by service technicians.

(e) Manufacturers shall inform licensed permittees of any new developments in the service and repair of video lottery terminals and provide appropriate subsequent training programs.

(f) The manufacturers shall issue a training certificate to each person upon successful completion of a video lottery training program.

(g) The certificate shall include the name of the person who completed the training program and the date and the location of the training program.

(h) A person who successfully completes training is eligible for a service technician's license.

(i) No person may conduct maintenance (other than clearing paper ticket jams or clearing coin and bill acceptor jams) on any video lottery terminal or associated equipment unless the commission has issued a service technician license to that person.

(j) Each manufacturer shall file with the commission the following information within two weeks after the completion of a training program:

(1) The name of each person who attended and completed the training program;

(2) The name of the manufacturer offering the course;

(3) The manufacturer's video lottery terminal models on which training for service and repair was provided;

(4) The date and location of the training program; and

(5) Copies of all certificates of completion.

§29-22B-1302. Maintenance log.

A written maintenance log shall be kept within the main cabinet access area in each video lottery terminal. Every person, including lottery personnel, who gains entry into any internal space of a video lottery terminal shall sign the log, record the time and date of entry, record the mechanical meter readings and list the areas inspected or repaired. The maintenance log forms shall be retained by permittees for a period of three years from the date of the last entry. The maintenance logs shall be available upon request for inspection by the commission.

§29-22B-1303. Master keys.

Permittees shall provide the commission with a master key for access into the main cabinet door of each video lottery terminal placed in operation. The commission shall provide a logic box seal. The seal shall be affixed by commission personnel to prevent unauthorized access to the video lottery terminal logic unit.

§29-22B-1304. Repairs to logic board or circuitry.

(a) No repairs to, or replacement of, the logic board or circuitry within the logic area shall occur unless authorized commission personnel are present and observe the repairs or replacement.

(b) The logic area seal shall not be broken by anyone other than authorized commission personnel.

(c) Each service technician shall submit a written report to the commission within twenty-four hours after the repairs or replacement are completed and the report shall include the serial number of any replacement board and the new logic area seal number.

(d) The commission shall test the software EPROMS on the logic board of each video lottery terminal prior to sealing the logic area.

(e) License holders shall promptly notify the commission in writing of any discovered damage, tears or breaks in the logic area seal. This written notification shall be delivered electronically or by telephone facsimile machine whenever possible. Upon receipt of that notice, the commission shall disable the video lottery terminal. The video lottery terminal shall remain disabled until completion by the commission of an investigation of the seal damage.

PART 14. NET TERMINAL INCOME AND

DISTRIBUTION OF REVENUES.

§29-22B-1401. Accounting for the state's share of gross terminal income.

(a) The gross terminal income from all operating video lottery terminals of a permittee shall be calculated periodically by the commission.

(b) Each licensed permittee shall maintain in its bank account an amount equal to or greater than the Lottery Commission's share of the gross terminal income from its operation of video lottery machines, to be electronically transferred by the Lottery Commission on dates established by the commission.

(c) Upon a permittee's failure to maintain the bank account balance required in subsection (b) of this section, the commission may disable all of a permittee's video lottery terminals until full payment of all amounts due is made.

(d) Interest shall accrue on any unpaid balance due the commission at the rates charged for state income tax delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the commission and shall continue to accrue until the amount due, including applicable interest, is paid. Payments shall be applied first to interest and then to the balance of the amount due the commission.

§29-22B-1402. Resolution of discrepancies.

(a) The commission's central control computer shall keep accurate records of all income generated by each video lottery terminal. The commission shall prepare and send to the permittee a statement by mail, facsimile or Internet e-mail reflecting the gross terminal income generated by the licensee's video lottery terminals. Each permittee shall report to the commission any discrepancies between the commission's statement and each terminal's mechanical and electronic meter readings.

(b) The permittee is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the commission's billing statement.

(c) The licensed operator is solely responsible for paying the negotiated share of net terminal income, to each limited video lottery retailer to whom it has supplied video lottery terminals under the provisions of this article.

(d) Each limited video lottery retailer's periodic distribution from the appropriate operator shall be paid by check or by electronic funds transfer to the limited video lottery retailer's designated bank account.

(e) Until an accounting discrepancy is resolved in favor of the permittee, the commission may make no credit adjustments.

(f) For any video lottery terminal reflecting a discrepancy, the permittee shall submit to the commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal's software.

(g) If the meter readings and the commission's records cannot be reconciled, final disposition of the matter shall be determined by the commission.

(h) Any accounting discrepancies that cannot be otherwise resolved shall be resolved in favor of the commission.

§29-22B-1403. Payover of state's share of gross terminal income.

(a) The commission shall periodically transfer from each permittee's bank account described in subsection 22B-1401(b) of this article, the state's share of gross terminal income as calculated under section 22B-1408 of this article.

(b) The permittee shall remit payment by mail and submit the report required by subsection (c) of this section if the electronic transfer of funds is not operational or the commission notifies the permittee that remittance by this method is required.

(c) If the remittance is by mail, the permittee shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the state's share of the amount generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.

(d) A permittee may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the commission. The commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.

§29-22B-1404. Permittees to furnish bank authorizations.

(a) Each permittee shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission and from the commission to each permittee.

(b) Each permittee shall provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds.

§29-22B-1405. State's share of gross terminal income held in trust.

The amount of gross terminal income required to be paid over to the commission, shall be deemed to be moneys held in trust for the State of West Virginia while in the possession or constructive possession of any operator or limited video lottery retailer and until the state's share of gross terminal income is paid over to the commission.

§29-22B-1406. Examination of permittee books and records.

The commission has the right to examine all accounts, bank accounts, financial statements and records in a permittee's possession, under its control or in which it has an interest and the licensed permittee shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the commission.

§29-22B-1407. Civil penalty for failure to pay over state's share of gross terminal income.

(a) Any person required by law or contract to collect, truthfully account for, and pay over any of the state's share of gross terminal income who willfully fails to truthfully account for and pay over the net terminal income, or willfully attempts in any manner to evade or defeat any payment thereof, shall, in addition to other penalties provided by law, be liable for payment of a civil money penalty equal to the total amount of the state's share of gross terminal income not paid over to the commission.

(b)(1) No penalty may be imposed under subsection (a) unless the director notifies the person in writing, delivered in person or by mail sent to the last known address of the operator or limited video lottery retailer, that he or she is subject to an assessment of this penalty.

(2) The mailing of the notice described in subdivision (1) (or, in the case of notice delivered in person, the delivery) shall precede any notice and demand for payment of any penalty under subsection (a)of this section, by at least sixty days.

(3) If a notice described in subdivision (1) of this subsection (b) with respect to any penalty is mailed or delivered in person before the expiration of the three-year period for the assessment of the penalty (determined without regard to this subdivision), the three-year period provided for the assessment of a penalty shall not expire before the later of:

(A) The date ninety days after the date on which such notice was mailed, or delivered in person, or

(B) If there is a timely protest of the proposed assessment, the date thirty days after the director makes a final administrative determination with respect to the protest.

(4) The requirement that preliminary notice be given shall not apply if the director finds that the collection of the penalty is in jeopardy.

(c) This penalty may be collected by civil action instituted within three years after the date the state's share of gross terminal income not paid over to the commission should have been paid over to the commission, except as provided in subsection (b) of this section.

(d) If more than one person is liable for the penalty under subsection (a) with respect to any payment of the state's share of gross terminal income, each person who paid the penalty shall be entitled to recover from other persons who are liable for the penalty an amount equal to the excess of the amount paid by the person over that person's proportionate share of the penalty. Any claim for such a recovery may be made only in a proceeding which is separate from, and is not joined or consolidated with, an action for collection of such penalty brought by the State of West Virginia.

(e) No penalty shall be imposed by subsection (a) on any unpaid, volunteer member of any board of trustees or directors of an organization exempt from tax under section 501 of the Internal Revenue Code of 1986, as amended, if such member:

(1) Is solely serving in an honorary capacity;

(2) Does not participate in the day-to-day or financial operations of the organization; and

(3) Does not have actual knowledge of the failure on which the penalty is imposed.

This subsection (e) shall not apply if it results in no person being liable for the penalty imposed by subsection (a) of this section.

§29-22B-1408. Distribution of state’s share of gross terminal income.

(a) The state’s share of gross terminal income is calculated as follows:

(1) The commission shall deposit two percent of gross terminal income into the State Lottery Fund for the commission’s costs and expenses incurred in administering this article. From this amount, not less than $150,000 nor more than $1 million per fiscal year, as determined by the commission each year, shall be transferred to the Compulsive Gambling Treatment Fund created in §29-22A-19 of this code. In the event that the percentage allotted under this subsection for the commission’s costs and expenses incurred in administering this article generates a surplus, the surplus shall be allowed to accumulate to an amount not to exceed $250,000. On a monthly basis, the director shall report to the Joint Committee on Government and Finance of the Legislature any surplus in excess of $250,000 and remit to the State Treasurer the entire amount of those surplus funds in excess of $250,000 to be deposited in the fund established in §29-22-18a of this code: Provided, That at the close of each of the fiscal years ending June 30, 2006, 2007, 2008, 2009, 2010 and 2011, the portion of the two percent allowance for administrative expenses provided in this subdivision (1) that remains unspent for costs and expenses incurred in administering this article, not to exceed $20 million in any fiscal year, shall be transferred to the Revenue Center Construction Fund created by §29-22-18(l) of this code for the purpose of constructing a state office building.

(2) Gross profits are determined by deducting the percentage described in subdivision (1) of this subsection, from gross terminal income.

(3) The commission shall receive 30 percent of gross profits as defined in subdivision (2) of this subsection except as otherwise provided in this subdivision. On June 1, 2002, the commission shall calculate the aggregate average daily gross terminal income for all operating video lottery terminals during the preceding three month period. Thereafter, the commission shall make the calculation on the first day of the month preceding the months of October, January, April, and July of each year. So long as the aggregate average gross terminal income per day for the operating video lottery terminals does not exceed $60, the commission’s share of gross profits shall continue to be 30 percent for the succeeding quarter of the year beginning July 1. Beginning on July 1, 2002 and the first days of October, January, April, and July in 2002 and thereafter, if the commission’s calculation of aggregate average daily gross terminal income per video lottery terminal yields an amount greater than $60, one of the following schedules apply: If the amount is greater than $60 per day but not greater than $80 per day, the commission’s share of gross profits for the ensuing quarter beginning the first day of the quarter of the year described in this subdivision shall be 34 percent; if the amount is greater than $80 per day but not greater than $100 per day, the commission’s share of gross profits for the ensuing quarter beginning the first day of the quarter of the year described in this subdivision shall be 38 percent; if the amount is greater than $100 per day but not greater than $120 per day, the commission’s share of gross profits for the ensuing quarter beginning the first day of the quarter of the year described in this subdivision shall be 42 percent; if the amount is greater than $120 per day but not greater than $140 per day, the commission’s share of gross profits for the ensuing quarter beginning the first day of the quarter of the year described in this subdivision shall be 46 percent; if the amount is greater than $140 per day, the commission’s share of gross profits for the ensuing quarter beginning the first day of the quarter of the year described in this subdivision shall be 50 percent: Provided, That effective July 1, 2019, the commission’s share of gross profits shall be 50 percent. This amount shall be known as net terminal income.

(b) Net terminal income shall be distributed by the commission as follows:

(1)(A) Beginning July 1, 2002, a county and the incorporated municipalities within that county shall receive two percent of the net terminal income generated by limited video lottery terminals located within the county;

(B) From this two percent of net terminal income, each municipality shall receive a share that bears the same proportion to the total two percent of net terminal income as the population of the municipality bears to the total population of the county as determined by the most recent decennial United States census of population, and the county shall receive the remaining portion of the two percent of net terminal income; and

(2) Any remaining funds shall be deposited into the state excess lottery revenue fund established in §29-22-18a of this code.

(c) The licensed operators and limited video lottery retailers shall receive the balance of gross terminal income remaining after deduction of the state’s share as calculated pursuant to this section.

PART 15. APPEAL OF ORDER OF THE COMMISSION.

§29-22B-1501. Appeal of order.

(a) Any applicant or license holder adversely affected by an order issued under this article has the right to a hearing on the order before the commission or a person designated as hearing examiner, if a petition in writing requesting a hearing is served upon the commission within ten days following the receipt of the order by the applicant, or license holder.

(b) A petition for hearing shall be served on the commission by delivery in person at the primary office of the commission or by certified mail. By procedural rule, the commission may allow other methods of service.

(c) The service of a petition for hearing upon the commission shall not operate to suspend the execution of any suspension or revocation of a video lottery license or any other order of the commission with respect to which a hearing is being demanded.

(d) The commission shall set a date for any hearing demanded and notify the person demanding the hearing not later than ten days before the hearing date of the date, time and place of the hearing. The hearing shall be held within thirty days after receipt of the petition.

§29-22B-1502. Contents of petition for hearing; security.

(a) A petition for a hearing shall be in writing and shall include an original and one copy. The petition shall contain the following:

(1) A clear and concise statement of each error which the petitioner alleges to have been committed by the commission in refusing to issue a license, or suspending or revoking a license, with each assignment of error being shown in separately numbered paragraphs;

(2) A clear and concise statement of fact upon which the petitioner relies as sustaining each assignment of error;

(3) A prayer setting forth the relief sought;

(4) The signature of the petitioner; and

(5) Verification by the petitioner.

(b) The person demanding a hearing shall give security for the cost of the hearing in the amount of $300 in the form of a certified check, cashier's check or money order, which shall accompany the petition demanding a hearing.

§29-22B-1503. Hearing procedures.

(a) Hearings held under this article shall be subject to the provisions of article 29A-5-1, et seq., of this code except to the extent otherwise provided in this article. In case of any conflict, the provisions of this article shall control.

(b) In all hearings held under this article, oral and documentary evidence may be required through the use of subpoenas and subpoenas duces tecum. The subpoenas or subpoenas duces tecum may be issued by either the commission or its duly appointed hearing examiner, and the following provisions shall govern and control:

(1) Every subpoena or subpoena duces tecum shall be served at least five days before the return date thereof, either by personal service made by any person eighteen years of age or older, or by registered or certified mail, but a return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed is required to prove service by registered or certified mail;

(2) All subpoenas and subpoenas duces tecum shall be issued in the name of the commission. Service of subpoenas and subpoenas duces tecum issued at the insistence of the commission is the responsibility of the commission, but any party requesting issuance is responsible for service. Any person who serves any subpoena or subpoena duces tecum is entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state, and fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of this state;

(3) All fees shall be paid by the commission if the subpoena or subpoena duces tecum is issued, without the request of an interested party, at the insistence of the commission;

(4) All fees related to any subpoenas or subpoena duces tecum issued at the insistence of an interested party shall be paid by the interested party;

(5) All requests by an interested party for a subpoena and subpoena duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay the fees; and

(6) Any person receiving a subpoena or subpoena duces tecum issued under this section shall honor the subpoena or subpoena duces tecum as though it were issued by a circuit court of this state, and shall appear as a witness or produce such books, records or papers in response to the subpoena or subpoena duces tecum. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the judge thereof in vacation, shall, upon application by the commission, compel obedience by contempt proceedings as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from the circuit court or a refusal to testify in the circuit court.

(c) Hearings may not be delayed by a motion for continuance made less than seven days before the date set for the hearing.

(d) The commission may designate a hearing examiner to conduct the hearing.

(e) The petitioner may appear individually, or by legal counsel.

(f) The petitioner, or his or her duly authorized representative, may, with the approval of the commission, waive the right to a hearing and agree to submit the case for decision upon the petition and record, with or without a written brief. The waivers and agreements shall be in writing or upon the record.

(g) The petitioner shall be given an opportunity for argument within the time limits fixed by the commission following submission of evidence. The commission, upon request of the petitioner, shall accept briefs in addition to or in lieu of argument. Briefs shall be filed within ten days after the hearing date.

(h) The commission may admit any relevant evidence, except that it shall observe the rules of privilege recognized by law. A finding is to be supported by the kind of evidence commonly relied upon by reasonably prudent men in the conduct of their affairs, whether or not the evidence would be admissible before a jury. The commission may exclude any evidence which is irrelevant, unduly repetitious, or lacking in substantial probative effect.

(i) A record shall be made of all hearings held pursuant to this article. Testimony may be recorded electronically or by a court reporter.

(j) After the conclusion of the hearing and within ten days of receipt of the transcript of the hearing, and receipt of any briefs, the person designated by the commission as hearing examiner shall prepare a recommended decision, supported by findings of fact and conclusions of law, affirming, modifying or vacating the earlier order of the commission. Thereafter, the commission, within ten days of receipt of the recommended decision, shall either accept or reject the recommended decision, and if it accepts the decision, it shall cause the director to sign and acknowledge the decision as its own, after having reviewed the transcript and all exhibits attached and affixed to the decision; if the commission rejects the decision, it shall within ten days of receipt of the recommended decision prepare a decision setting forth its own findings of fact and conclusions of law. In either event, the decision is final unless vacated or modified upon judicial review of the decision. A copy of the decision shall be served upon each party to the hearing and their attorney of record, if any, in person or by registered or certified mail.

§29-22B-1504. Judicial review.

The applicant or license holder who filed the petition for administrative review may appeal the decision of the commission issued under section 22B-1503 to the circuit court of Kanawha County, West Virginia, if the petition for appeal is filed no later than thirty days after the date upon which the petitioner receives written notice of the final decision of the commission.

PART 16. CIVIL PENALTIES.

§29-22B-1601. Imposition of civil penalties by the commission.

The commission may impose the civil penalties provided for in this part 16. These civil penalties may be imposed in conjunction with one or more other civil penalties provided in this part 16 and in conjunction with a license suspension or revocation or other administrative action taken against a licensee, or as a result of an action or inaction by a licensee for which the commission is also seeking criminal prosecution.

§29-22B-1602. Civil penalties applicable to limited video lottery retailers.

(a) For allowing persons under age twenty-one years to play video lottery games, the limited video lottery retailer shall be fined:

(1) Two hundred dollars for a first violation;

(2) One thousand dollars for a second violation; and

(3) Five thousand dollars for a third violation.

For each subsequent violation, the fine imposed by the commission shall increase by $5,000.

(b) For allowing persons under age twenty-one years to be present at a video lottery terminal or in the immediate area where video lottery terminals are present, the limited video lottery retailer may be fined:

(1) One hundred dollars for a first violation;

(2) Two hundred dollars for a second violation; and

(3) Three hundred dollars for a third violation.

For each subsequent violation, the fine imposed by the commission shall increase by $100.

(c) For allowing a person or persons to tamper in any way with, or disconnect, any data line or feature that allows the state's central control computer to communicate with each video lottery terminal in the premises, the limited video lottery retailer may be fined:

(1) One thousand dollars for a first violation;

(2) Five thousand dollars for a second violation; and

(3) Ten thousand dollars for a third violation.

For each subsequent violation, the fine imposed by the commission shall increase by $10,000.

(d) For entering the logic area of a video lottery terminal or allowing an unauthorized person or persons to enter the logic area of a video lottery terminal, or tampering in any way with the lottery security seal, any EPROM or other chip or memory device installed in the logic area, whether or not any tampering would alter any characteristic of the video lottery terminal, the limited video lottery retailer may be fined:

(1) One thousand dollars for a first violation;

(2) Five thousand dollars for a second violation; and

(3) Ten thousand dollars for a third violation.

For each subsequent violation, the fine imposed by the commission shall increase by $10,000.

(e) For failure to aim or focus a closed circuit television camera on all video lottery terminals in the premises or for failure to record all video lottery terminals during the hours of operation of the limited access adults-only facility, the limited video lottery retailer shall be fined:

(1) One hundred dollars for a first violation;

(2) One thousand dollars for a second violation; and

(3) Five thousand dollars for a third violation.

For each subsequent violation, the fine imposed by the commission shall increase by $5,000.

(f) For violating the provisions of subdivision (10), subdivision (13) or subdivision (14) of section 29-22B-702 of this article, the limited video lottery retailer shall be fined:

(1) One hundred dollars for a first violation;

(2) One thousand dollars for a second violation;

(3) Five thousand dollars for a third violation.

For each subsequent violation the fine imposed by the commission shall increase by an additional $5,000.

§29-22B-1603. Civil penalties applicable to service technicians.

(a) For entering the logic area of any video lottery terminal at any time when a representative of the West Virginia Lottery Commission is not present and observing the process, the service technician shall be fined:

(1) One hundred dollars for a first violation;

(2) One thousand dollars for a second violation; and

(3) Three thousand dollars for a third violation.

(b) For each subsequent violation, the fine imposed by the commission shall increase by $1,000. If two or more service technicians participate in violation of this section, each service technician shall be fined according to this schedule.

§29-22B-1604. Civil penalties applicable to permittees.

(a) For employing or contracting with persons, other than service technicians licensed by the commission, to repair video lottery terminals, the permittee shall be fined:

(1) One thousand dollars for a first violation;

(2) Five thousand dollars for a second violation; and

(3) Ten thousand dollars for a third violation.

For each subsequent violation, the fine imposed by the commission shall increase by $10,000.

(b) For acquiring, or installing in licensed premises, any video lottery terminal that has not been manufactured and supplied by a licensed manufacturer, that has not also been tested and approved by the commission's independent testing laboratory, and that has not been approved for use in this state by the commission, the permittee shall be fined:

(1) Five thousand dollars for a first violation;

(2) Ten thousand dollars for a second violation.

(c) For each subsequent violation, the fine imposed by the commission shall increase by $10,000.

§29-22B-1605. Civil penalties applicable to manufacturers.

(a) For shipping a video lottery terminal into this state to a person who does not have a permit issued by the commission under this article, the manufacturer shall be fined:

(1) One thousand dollars for a first violation;

(2) Five thousand dollars for a second violation; and

(3) Ten thousand dollars for a third violation.

(b) For each subsequent violation, the fine imposed by the commission shall increase by $10,000.

(c) For shipping a video lottery terminal into this state that is not identical to a video lottery terminal make and model approved by the commission, including the electronic computer components, the random number generator, the coin acceptor, the bill acceptor, and the cabinet in which the video lottery terminal is housed, the manufacturer shall be fined:

(1) One thousand dollars for a first violation;

(2) Five thousand dollars for a second violation; and

(3) Ten thousand dollars for a third violation.

(d) For each subsequent violation, the fine imposed by the commission shall increase by $10,000.

§29-22B-1606. Civil penalties for failure of licensees to perform duties.

A person who fails to perform any of the duties or obligations created and imposed upon them by the provisions of this article or legislative rule of the commission is subject to a civil penalty as may be determined by the commission in an amount not to exceed $10,000.

§29-22B-1607. Civil action to collect penalty.

(a) The commission may collect any money penalty imposed pursuant to this article by instituting civil action in any court of this state having jurisdiction over the named defendant.

(b) Collection shall be barred unless the civil action is commenced within six years after the later of (1) the date on which the prohibited conduct establishing the cause of action occurred, or (2) the date on which the commission first knew or should reasonably have known the prohibited conduct had occurred.

PART 17. CRIMINAL OFFENSES.

§29-22B-1701. Financial interest of director, etc.; receiving reward from interested party; criminal penalty; application of bribery statute.

(a) Neither the director of the commission, nor any member or employee of the commission, may be financially interested, or have any beneficial personal interest, direct or indirect, in any person furnishing video lottery terminals or video lottery games, or in any person who is a bidder for video lottery terminals, or who is a holder of a license issued under this article.

(b) Neither the director of the commission, nor any member or employee of the commission, may accept or receive, directly or indirectly, from any person known by the director, commission member or employee of the commission to be interested in any bid, contract or licensee under this article, by rebate, gift or otherwise, any money or other thing of value whatsoever, or any promise, obligation or contract for future reward, or compensation.

(c) A person who violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than three months nor more than one year, or fined not less than $50 nor more than $1,000, or both, in the discretion of the court: Provided, That any person who violates any of the provisions of subsection (b) of this section under circumstances constituting the crime of bribery under the provisions of section 61-5A-3 of this code, shall, upon conviction of bribery, be punished as provided in article 61-5A-1, et seq., of this code.

§29-22B-1702. Criminal penalties for unlawful inducement.

(a) Any person who gives another person any thing of value to induce the other to refrain from bidding for a video lottery permit is guilty of a misdemeanor and, upon conviction, shall be fined not more than $10,000 and, in addition, shall be subject to a civil penalty payable to the commission of $500,000.

(b) Any person who gives a person any thing of value to induce the other to refrain from placing a video lottery terminal at a restricted access adult-only facility is guilty of a misdemeanor and, upon conviction, shall be fined not more than $10,000 and, in addition, shall be subject to a civil penalty payable to the commission of $500,000.

§29-22B-1703. Criminal penalty for unauthorized game on authorized video lottery terminal.

(a) A licensee who places a video lottery game on a video lottery terminal that is allowed under this article without authority of the commission to do so is guilty of a misdemeanor and, upon conviction thereof, shall for a first conviction be confined in a county or regional jail for a term of not more than one year, and fined not more than $5,000, except that, in the case of a person other than an individual, the amount of the fine imposed may be not more than $25,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years and fined not less than $5,000 nor more than $10,000, except that in the case of a person other than an individual, the fine may not be less than $25,000 nor more than $50,000.

§29-22B-1704. Criminal penalty for unauthorized video lottery terminal.

(a) A licensee who places a video gambling machine into play is guilty of a misdemeanor and, upon conviction thereof, shall for a first conviction be confined in a county or regional jail for a term of not more than one year, and fined not less than $5,000 nor more than $10,000, except that, in the case of a person other than an individual, the fine may not be less than $20,000 nor more than $30,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years and fined not less than $10,000 nor more than $20,000, except that in the case of a person other than an individual, the fine may not be less than $25,000 nor more than $50,000.

§29-22B-1705. Criminal penalty for possession of video gambling machine.

(a) After December 31, 2001, any person who has a video gambling machine in their actual or constructive possession in this state is guilty of a felony and, upon conviction thereof, shall for a first conviction be confined in a state correctional facility for a term of not less than one year nor more than three years, and fined not less than $50,000 nor more than $100,000, for each video gambling machine in the person's actual or constructive possession in this state, except that, in the case of a person other than an individual, the fine may not be less than $100,000 nor more than $500,000 for each video gambling machine in the person's actual or constructive possession in this state.

(b) For any second or subsequent conviction under this section the person shall be confined in a state correctional facility for a term of not less than two years nor more than five years, and fined not less than $100,000 nor more than $500,000, for each video gambling machine in their actual or constructive possession in this state, except that, in the case of a person other than an individual, the fine may not be less than $500,000 nor more than $1 million for each video gambling machine in the person's actual or constructive possession in this state.

§29-22B-1706. Criminal penalty for expired operator or limited video lottery retailer's license.

(a) A person who operates, carries on or exposes for play a video lottery game or video lottery terminal after the person's license has expired and prior to the actual renewal of the license is guilty of a misdemeanor and, upon conviction thereof, shall for a first conviction be confined in a county or regional jail for not more than one year or fined not less than $1,000 nor more than $5,000, except that, in the case of a person other than an individual, the amount of the fine imposed may not be less than $10,000 nor more than $25,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years and fined not less than $10,000 nor more than $20,000, except that in the case of a person other than an individual, the fine may not be less than $25,000 nor more than $50,000.

§29-22B-1707. Criminal penalty for possession of altered or nonconforming video lottery terminal, device or related material.

(a) A person who possesses any video lottery terminal that is not a video gambling machine or possesses any other device, equipment or material which the person knows has been manufactured, distributed, sold, tampered with or serviced in violation of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall for a first conviction be confined in a county or regional jail not more than one year and fined not less than $1,000 nor more than $5,000, except that, in the case of a person other than an individual, the amount of the fine imposed may be not less than $5,000 nor more than $25,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years and fined not less than $5,000 nor more than $25,000, except that in the case of a person other than an individual, the fine may not be less than $50,000 nor more than $100,000.

§29-22B-1708. Criminal penalty for tampered game, terminal, device or other equipment.

(a) A person who knowingly conducts, carries on, operates or exposes for play, or allows to be conducted, carried on, operated or exposed for play, any video lottery game, video lottery terminal or other device, equipment or material which has in any manner been tampered with or placed in a condition or operated in a manner the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal chance of the video lottery game which could determine or alter the result of the game is guilty of a misdemeanor and, upon conviction thereof, shall for a first conviction be confined in a county or regional jail not more than one year and fined not less than $1,000 nor more than $5,000, except that, in the case of a person other than an individual, the amount of the fine imposed may be not less than $25,000 nor more than $50,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years and fined not less than $5,000 nor more than $25,000, except that in the case of a person other than an individual, the fine may be not less than $50,000 nor more than $100,000.

§29-22B-1709. Criminal penalty for deceptive practices.

(a) A person who knowingly conducts, carries on, operates or exposes for play, or allows to be conducted, carried on, operated or exposed for play, any video lottery game, video lottery terminal, data line connection with the central control computer, or other device, equipment or material which has in any manner been tampered with or placed in a condition or operated in a manner the result of which tends to deceive the state Lottery Commission or tends to alter the accurate recording of credits played and credits won by the commission's central control computer, or the central control computer's ability to disable and cause not to operate any or all video lottery terminals of a licensed limited video lottery retailer, for the first offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail not more than one year and fined not more than $5,000, except that, in the case of a person other than an individual, the amount of the fine imposed may be not more than $50,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for at least one year but not more than five years, and fined not less than $1,000 nor more than $5,000, except that when the person is not an individual, the amount of the fine imposed may be not less than $5,000 nor more than $50,000.

§29-22B-1710. Employment of unlicensed person who is required to be licensed.

(a) A person who employs or continues to employ an individual not issued a license under the provisions of this article in a position with duties which would require a license under the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall for a first offense be confined in a county or regional jail for not more than one year and fined not more than $5,000, except that, in the case of a person other than an individual, the amount of the fine imposed may be not more than $25,000.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years, and fined not less than $5,000 nor more than $25,000, except that, in the case of a person other than an individual, the fine may not be less than $50,000 nor more than $100,000.

§29-22B-1711. Criminal penalty for unlicensed person to work in a position for which license is required.

(a) An individual who is required by this article to obtain a license from the commission to work as a limited video lottery retailer or service technician but who works as a limited video lottery retailer or service technician without obtaining the requisite license, as provided for in this article, or is employed in a position with duties which would require a license under the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail not more than one year and fined not more than $10,000.

(b) A second and each subsequent offense under this section shall be a misdemeanor and, upon conviction thereof, the person shall be confined in a county or regional jail for a term not to exceed one year and fined not less than $5,000 nor more than $20,000.

§29-22B-1712. Criminal penalty for use of device that gives player an unauthorized advantage.

(a) A person who, while a video lottery game is being played, uses, or assists another person in the use of, an electronic, electrical or mechanical device which is designed, constructed or programmed specifically for use in obtaining an advantage at playing any video lottery game is guilty of a felony and, upon conviction thereof, shall for a first offense be confined in a state correctional facility for at least one year but not more than five years, or shall be fined not less than $1,000 nor more than $5,000, or both.

(b) A second and each subsequent offense under this section shall be a felony and, upon conviction thereof, the person shall be confined in a state correctional facility for a term of not less than one year nor more than three years, and fined not less than $5,000 nor more than $25,000, except that, in the case of a person other than an individual, the fine may be not less than $50,000 nor more than $100,000.

§29-22B-1713. Criminal penalty for violation of rules of play.

A person who knowingly violates a provision of this article or the rules of play or game rules of a video lottery game, and who profits thereby in an amount equal to $1,000 or more, is guilty of a felony and, upon conviction thereof, shall be imprisoned in the state correctional facility not less than one nor more than ten years or, in the discretion of the court, be confined in jail for not more than one year and be fined not less than $2,000 nor more than $5,000. If the person profits thereby in an amount less than $1,000, that person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a term not to exceed one year or fined an amount not less than $1,000 nor more than $2,500, or both.

§29-22B-1714. Criminal penalty for corrupt combinations, collusions or conspiracies prohibited.

It shall be unlawful for any person to corruptly combine, collude or conspire with one or more other persons with respect to the purchasing or leasing of video lottery terminals or associated equipment, or the provisions of services, or the bidding of authorizations to own or lease video lottery terminals. Any person who violates any provision of this section shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for a term of not less than one year nor more than five years, and be fined not less than $10,000 nor more than $25,000.

PART 18. SEIZURE AND DESTRUCTION

OF CONTRABAND; FORFEITURES.

§29-22B-1801. Video gambling machines declared contraband.

Effective January 1, 2002, and thereafter, video gambling machines are per se illegal gambling devices which may be seized and destroyed as illegal contraband by any law-enforcement agency having jurisdiction over the political subdivision in which the device is found, and the owner or owners of the device have no right to compensation for the seizure and destruction of any video gambling machine.

§29-22B-1802. Legislative findings regarding seizure and sale of video gambling machines and other property.

The Legislature hereby finds and declares that the seizure and sale of items under the provisions of this part 18 is not contemplated to be a forfeiture as the same is used in article 12, section 5 of the West Virginia Constitution and, to the extent that a seizure and sale may be found to be such a forfeiture, the Legislature hereby finds and declares that the proceeds from a seizure and sale under this article is not part of net proceeds as the same is contemplated by such article 12, section 5 of the West Virginia Constitution.

§29-22B-1803. Items subject to forfeiture.

(a) The following items are subject to forfeiture:

(1) Any video gambling machine present in this state after January 1, 2002;

(2) All property found with the video gambling machine that in any way facilitates its operation for any purpose;

(3) Any video lottery terminal registered under this article that is found on the premises where a video gambling machine is found;

(4) All conveyances, including aircraft, vehicles or vessels, which are used, have been used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of a video gambling machine, except as follows:

(A) No conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under this section unless it appears that the person owning such conveyance is a consenting party or privy to a violation of this article;

(B) No conveyance shall be forfeited under the provisions of this article if the person owning the conveyance establishes that he or she neither knew, nor had reason to know, that the conveyance was being employed or was likely to be employed in a violation of this article; and

(C) No bona fide security interest or other valid lien in any conveyance shall be forfeited under the provisions of this article, unless the state proves by a preponderance of the evidence that the holder of such security interest or lien either knew, or had reason to know, that such conveyance was being used or was likely to be used in a violation of this article.

(5) All books, records and materials, including microfilm, tapes and data which are used, or have been used, or are intended for use with a gray gambling device;

(6) All moneys, negotiable instruments, securities or other things of value furnished or intended to be furnished in violation of this article by any person in exchange for a gray gambling device or in exchange for playing or operating a gray gambling device, all proceeds traceable to such an exchange, and all moneys, negotiable instruments and securities used, or which have been used, or which are intended to be used to facilitate any violation of this article: Provided, That no property may be forfeited under this subdivision, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without his or her knowledge or consent; and

(7) All real property, including any right, title and interest in any lot or tract of land, and any appurtenances or improvements, which are used, or have been used, or are intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of this article punishable by more than one year imprisonment: Provided, That no property may be forfeited under this subdivision, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without his or her knowledge or consent.

(b) The requirements of this section pertaining to the removal of seized property are not mandatory in the case of real property and the appurtenances thereto.

(c) Property subject to forfeiture under this section may be seized by any person granted law-enforcement powers (hereinafter referred to as the "appropriate person" in section 22B-1804).

§29-22B-1804. Procedure for seizure of forfeitable property.

(a) Seizure of property made subject to forfeiture by the provisions of sections 22B-1802 and 22B-1803 may be made upon process issued by any court of record having jurisdiction over the property.

(b) Notwithstanding the provisions of subsection (a) of this section, seizure of property subject to forfeiture by the provisions of this article may be made without process if:

(1) The seizure is incident to a lawful arrest or pursuant to a search under a search warrant or an inspection warrant;

(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section; or

(3) The appropriate person has probable cause to believe that the property was used or intended for use in violation of this article.

(c) In the event of seizure pursuant to subsection (b) of this section, forfeiture proceedings shall be instituted within ninety days of the seizure thereof.

(d) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the appropriate person, subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this article, the appropriate person may:

(1) Place the property under seal;

(2) Remove the property to a place designated by him or her;

(3) Require the appropriate law-enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law; or

(4) In the case of seized moneys, securities or other negotiable instruments, place the assets in any interest-bearing depository insured by an agency of the federal government.

The requirements of this subsection (d), pertaining to the removal of seized property, are not mandatory in the case of real property and appurtenances thereto.

§29-22B-1805. Procedures for forfeiture.

(a) The following procedures for forfeiture shall be followed:

(1) Any proceeding wherein the state seeks forfeiture of property subject to forfeiture under this section shall be a civil proceeding. A petition for forfeiture may be filed on behalf of the state and any law-enforcement agency making a seizure under this article by the prosecuting attorney of a county, or duly appointed special prosecutor;

(2) A petition for forfeiture may be filed and proceedings held thereon in the circuit court of the county wherein the seizure was made or the circuit court of the county wherein any owner of the property subject to forfeiture may reside;

(3) Any civil trial stemming from a petition for forfeiture brought under this part 18 at the demand of either party shall be by jury;

(4) A petition for forfeiture of the seized property shall be filed within ninety days after the seizure of the property in question. The petition shall be verified by oath or affirmation of a law-enforcement officer representing the law-enforcement agency responsible for the seizure or the prosecuting attorney and shall contain the following:

(A) A description of the property seized;

(B) A statement as to who is responsible for the seizure;

(C) A statement of the time and place of seizure;

(D) The identity of the owner or owners of the property, if known;

(E) The identity of the person or persons in possession of the property at the time seized, if known;

(F) A statement of facts upon which probable cause for belief that the seized property is subject to forfeiture pursuant to the provisions of this article is based;

(G) The identity of all persons or corporations having a perfected security interest or lien in the subject property, as well as the identity of all persons or corporations known to the affiant who may be holding a possessory or statutory lien against such property; and

(H) A prayer for an order directing forfeiture of the seized property to the state, and vesting ownership of such property in the state.

(b) At the time of filing or as soon as practicable thereafter, a copy of the petition for forfeiture shall be served upon the owner or owners of the seized property, as well as all holders of a perfected security interest or lien or of a possessory or statutory lien in the same class, if known. Should diligent efforts fail to disclose the lawful owner or owners of the seized property, a copy of the petition for forfeiture shall be served upon any person who was in possession or alleged to be in possession of the property at the time of seizure, where such person's identity is known. The above service shall be made pursuant to the provisions of the West Virginia Rules of Civil Procedure. Any copy of the petition for forfeiture so served shall include a notice substantially as follows:

"To any claimant to the within described property: You have the right to file an answer to this petition setting forth your title in, and right to possession of, the property within thirty days from the service hereof. If you fail to file an answer, a final order forfeiting the property to the state will be entered, and such order is not subject to appeal."

If no owner or possessors, lienholders or holders of a security interest be found, then such service may be made by Class II legal publication in accordance with the provisions of article 59-3-1, et seq., of this code, and the publication area shall be the county wherein such property was located at the time of seizure and the county wherein the petition for forfeiture is filed.

(c) In addition to the requirements of subsection (b) of this section, the prosecuting attorney or law-enforcement officer upon whose oath or affirmation the petition for forfeiture is based, shall be responsible for the publication of a further notice. Such further notice that a petition for forfeiture has been filed shall be published by Class II legal advertisement in accordance with article 59-3-1, et seq., of this code. The publication area shall be the county wherein the property was seized and the county wherein the petition for forfeiture is filed. The notice shall advise any claimant to the property of their right to file a claim on or before the date set forth in the notice, which date shall not be less than thirty days from the date of the first publication. The notice shall specify that any claim must clearly state the identity of the claimant and an address where legal process can be served upon that person. In addition, such notice shall contain the following information:

(1) A description of the property seized;

(2) A statement as to who is responsible for the seizure;

(3) A statement of the time and place of seizure;

(4) The identity of the owner or owners of the property, if known;

(5) The identity of the person or persons in possession of the property at the time of seizure, if known; and

(6) A statement that prayer for an order directing forfeiture of the seized property to the state, and vesting ownership of such property in the state, shall be requested of the court.

(d) If no answer or claim is filed within thirty days of the date of service of the petition pursuant to subsection (b) of this section, or within thirty days of the first publication pursuant to subsection (b) of this section, the court shall enter an order forfeiting the seized property to the state. If any claim to the seized property is timely filed, a time and place shall be set for a hearing upon such claim. The claimant or claimants shall be given notice of such hearing not less than ten days prior to the date set for the hearing.

(e) At the hearing upon the claim or claims, the state shall have the burden of proving by a preponderance of the evidence that the seized property is subject to forfeiture pursuant to the provisions of this part 18.

(f) Any order forfeiting property to the state and entered pursuant to this section perfects the state's right, title and interest in the forfeited property and relates back to the date of seizure: Provided, That in any proceeding under this article the circuit court shall in its final order make specific findings with respect to whether or not probable cause to seize such property existed at the time of such seizure.

(g) During the pendency of a forfeiture proceeding, it is unlawful for any property owner or holder of a bona fide security interest or other valid lien-holder to transfer or attempt to transfer any ownership interest or security interest in seized property with the intent to defeat the purpose of this article, and the court wherein the petition for forfeiture is filed may enjoin a property owner or holder of a security interest or other lien-holder from making such a transfer should one come to its attention. Any such transfer, that is made in violation of the provisions of this subsection, shall have no effect upon an order of the court forfeiting seized property to the state if a notice of lis pendens is filed prior to the recording of the instrument of transfer.

(h) The court may void any transfer of property made before or after a forfeiture proceeding has been commenced, which is subject to forfeiture, if the transfer was not to a bona fide purchaser without notice for value.

(i) An appeal of a decision of the circuit court concerning a forfeiture proceeding brought pursuant to this part 18 must be filed within one hundred twenty days of the date of entry of the final appealable order. The appellant shall be required to give notice of intent to appeal within thirty days of the entry of such appealable order.

§29-22B-1806. Disposition of forfeited moneys, securities or other negotiable instruments.

(a) Whenever moneys, securities or other negotiable instruments are forfeited under the provisions of this part 18, such proceeds shall be distributed as follows:

(1) Ten percent of the proceeds shall be tendered to the office of the prosecuting attorney which initiated the forfeiture proceeding; and

(2) The balance shall be deposited in a special law-enforcement investigation fund. The fund may be placed in any interest-bearing depository insured by an agency of the federal government. The fund shall be administered by the chief of the law-enforcement agency that seized the forfeited property.

(b) No funds shall be expended from the special law-enforcement investigation fund except as follows:

(1) In the case of the funds belonging to the West Virginia state police, the funds shall only be expended at the direction of the superintendent and in accordance with the provisions of section 5A-2-15 and subsection 12-2-2(j) of this code;

(2) In the case of funds belonging to the office of either the sheriff or prosecuting attorney of any county in which the special fund has been created, the funds therein may only be expended in the manner provided in sections 7-5-4 and 5 of this code; and

(3) In the case of funds belonging to the police department of any municipality in which the special fund has been created, the funds therein may only be expended in the manner provided in section 8-13-22 of this code.

§29-22B-1807. Disposition of other forfeited property; distribution of proceeds.

(a) When property other than that referred to in section 22B-1806 of this part is forfeited under this section, the circuit court ordering the forfeiture, upon application by the prosecuting attorney or the chief of the law-enforcement agency that seized said forfeited property, may direct that:

(1) Title to the forfeited property be vested in the law-enforcement agency so petitioning; or

(2) The law-enforcement agency responsible for the seizure retain the property for official use; or

(3) The forfeited property shall be offered at public auction to the highest bidder for cash. Notice of such public auction shall be published as a Class III legal advertisement in accordance with article 59-3-1, et seq., of this code. The publication area shall be the county where the public auction will be held.

(b) When a law-enforcement agency receives property pursuant to this section, the court may, upon request of the prosecuting attorney initiating the forfeiture proceeding, require the law-enforcement agency to pay unto the office of said prosecuting attorney a sum not to exceed ten percent of the value of the property received to compensate said office for actual costs and expenses incurred.

(c) The proceeds of every public sale conducted pursuant to this section shall be paid and applied as follows: First, to the balance due on any security interest preserved by the court; second, to the costs incurred in the storage, maintenance and security of the property; third, to the costs incurred in selling the property.

(d) Any proceeds of a public sale remaining after distribution pursuant to this section shall be distributed as follows:

(1) Ten percent of such proceeds shall be tendered to the office of the prosecuting attorney who initiated the forfeiture proceeding; and

(2) The balance shall be deposited in a special law-enforcement investigation fund. Such fund shall be administered by the chief of the law-enforcement agency that seized the forfeited property sold and shall take the form of an interest-bearing account with any interest earned to be compounded to the fund. Any funds deposited in the special law-enforcement investigative fund pursuant to this article shall be expended only to defray the costs of protracted or complex investigations, to provide additional technical equipment or expertise, to provide matching funds to obtain federal grants or for such other law-enforcement purposes as the chief of the law-enforcement agency may deem appropriate; however, these funds may not be utilized for regular operating needs.

(e) If more than one law-enforcement agency was substantially involved in effecting the seizure and forfeiture of property, the court wherein the petition for forfeiture was filed shall equitably distribute the forfeited property among the law-enforcement agencies. In the event of a public sale of such property pursuant to subsection (a) of this section, the court shall equitably distribute any proceeds remaining after distribution pursuant to subsection (c) and subdivision (1), subsection (d) of this section, among such law-enforcement agencies for deposit into their individual special law-enforcement investigative fund. Equitable distribution shall be based upon the overall contribution of the individual law-enforcement agency to the investigation which led to the seizure.

(f) Upon the sale of any forfeited property for which title or registration is required by law, the state shall issue a title or registration certificate to any bona fide purchaser at a public sale of the property conducted pursuant to this section. Upon the request of the law-enforcement agency receiving, pursuant to the order of the court, or electing to retain, pursuant to this section, any forfeited property for which title or registration is required by law, the state shall issue a title or registration certificate to the appropriate governmental body.

(g) Any funds expended pursuant to the provisions of this section, shall only be expended in the manner provided in subsection 60A-7-705(b), of this code.

(h) Every prosecuting attorney or law-enforcement agency receiving forfeited property or proceeds from the sale of forfeited property pursuant to this part 18 shall submit an annual report to the body which has budgetary authority over such agency. Such report shall specify the type and approximate value of all forfeited property and the amount of proceeds from the sale of forfeited property received in the preceding year. No county or municipality may use anticipated receipts of forfeited property in their budgetary process.

(i) In lieu of the sale of any forfeited property subject to a bona fide security interest preserved by an order of the court, the law-enforcement agency receiving the forfeited property may pay the balance due on any security interest preserved by the court from funds budgeted to the office or department or from the special fund and retain possession of the forfeited property for official use pursuant to this section.

(j) In every case where property is forfeited, disposition of the forfeited property, in accordance with this part 18, shall be made within six months of the date upon which the court of jurisdiction orders forfeiture. Should the office or agency receiving the property fail either to place the property in official use or dispose of the property in accordance with law, the court of jurisdiction shall cause disposition of the property to be made with any proceeds therefrom to be awarded to the state.

(k) No disposition shall occur until all applicable periods for filing a notice of intent to appeal has expired and no party in interest shall have filed such notice. The filing of the notice of intent to appeal shall stay any such disposition until the appeal has been finally adjudicated or until the appeal period of one hundred eighty days has expired without an appeal having actually been taken or filed, unless a valid extension of the appeal has been granted by the circuit court under the provisions of section 58-4-7 of this code.

(l) The special law-enforcement investigative funds of each law-enforcement agency may be placed in an interest-bearing depository insured by the federal government.

PART XIX. MISCELLANEOUS PROVISIONS.

§29-22B-1901. Effect of this article on certain taxes.

(a) Notwithstanding any provision of this code to the contrary, persons who hold a current operator's license or a current limited video lottery retailer's license issued under this article shall be exempt from paying the taxes imposed by articles 11-15-1, et seq., and 11-15A-1, et seq., of this code on their purchases of video lottery terminals and video lottery games.

(b) Notwithstanding any provision of this code to the contrary, the consideration paid by a patron of a restricted access adult-only facility to play video lottery games shall be exempt from the tax imposed by article 11-15-1, et seq., of this code.

(c) Notwithstanding the provisions of section 8-13-4 of this code to the contrary, municipalities may not impose the license fees imposed by this article on manufacturers, operators, limited video lottery retailers and service technicians. Municipalities may continue to impose any other license fees they are allowed to impose under this code.

(d) Notwithstanding any provision of this code to the contrary, municipalities may not impose the municipal business and occupation taxes imposed pursuant to section 8-13-5 of this code or an amusement tax imposed pursuant to section 8-13-6 of this code on the income of a permittee of video lottery terminals from income derived directly from activities conducted pursuant to the provisions of this article.

(e) Notwithstanding any provision of this code to the contrary, municipalities may not impose the municipal business and occupation taxes imposed pursuant to section 8-13-5 of this code on payments a limited video lottery retailer receives from an operator of video lottery terminals for activities conducted pursuant to the provisions of this article.

§29-22B-1902. Preemption of state laws or local regulation.

(a) No state or local law or regulation providing any penalty, disability, restriction, regulation or prohibition for the manufacture, transportation, storage, distribution, advertising, possession or sale of any lottery video lottery terminal, games or materials or for the operation of any lottery shall apply to operations by the Lottery Commission or persons licensed pursuant to this article or operations or activities that are authorized in this article.

(b) The provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict herewith: Provided, That nothing herein shall invalidate any zoning law, or Sunday closing law under article 61-10-1, et seq., of this code.

(c) Nothing in this article shall be deemed to permit the operation of any lottery otherwise prohibited by the laws of this state, not owned and operated by this state and permitted by this article.

§29-22B-1903. Timing of implementation.

The Legislature finds and declares that the success of this state's implementation of video lottery operations under this article requires that the operations be phased in over a manageable transition period designed to allow careful regulation and control of the implementation of operations under this article and also to allow persons possessing devices that are declared by this article to be contraband gambling devices a reasonable opportunity to remove any existing devices from this state.

§29-22C-1. Short title.

This article shall be known and may be cited as the West Virginia Lottery Racetrack Table Games Act.

§29-22C-2. State authorization of table games at licensed racetrack facilities; legislative findings and declarations.

(a) Operation of West Virginia lottery table games. -- Notwithstanding any provision of law to the contrary, the operation of West Virginia lottery racetrack table games and ancillary activities at a licensed racetrack and the playing of those West Virginia lottery table games at a licensed racetrack are only lawful when conducted in accordance with the provisions of this article and rules of the commission.

(b) Legislative findings: --

(1) The Legislature finds that horse racing and dog racing and breeding play a critical role in the economy of this state, enhance the revenue collected at the racetracks, contribute vital revenues to the counties and municipalities in which the activities are conducted, provide for significant employment and protect and preserve greenspace and; that a substantial state interest exists in protecting these industries. Furthermore, it finds that the breeding and racing of thoroughbred horses is an integral part of West Virginia's agriculture, and that agriculture is a critical ingredient in West Virginia's economy. It further finds that the operation of table games pursuant to this article, at racetracks in this state that hold racetrack video lottery licenses and licenses to conduct horse or dog racing, will protect and preserve the horse racing and dog racing industries and horse and dog breeding industries, will protect and enhance the tourism industry in this state and indirectly benefit other segments of the economy of this state.

(2) The Legislature finds that, pursuant to section thirty-six, article VI of the Constitution of the State of West Virginia grants exclusively to the state the right to lawfully own and operate a lottery in this state.

(3) The Legislature finds that recognized principals of ownership allow an owner to maintain ownership while operating an enterprise through agents and licensees.

(4) The Legislature finds that it is in the best interest of the State of West Virginia for the state to operate a lottery in the form of table games.

(5) The Legislature finds that the table games authorized under the provisions of this article are lotteries as each game involves consideration, the possibility of a prize and their outcome is determined predominantly by chance, which the common law of West Virginia has long held are the three essential elements of a lottery.

(6) The Legislature finds that the lottery authorized by the provisions of this article is the exclusive intangible intellectual property of the State of West Virginia as are the other versions of lottery authorized under this chapter.

(7) The Legislature finds that the most effective manner in which the state can operate and regulate the forms of lottery authorized by the provisions of this article is to do so through licensees and further that effective operation and regulation requires limiting the number of locations at which the lottery and lottery games so authorized are allowed.

(8) The Legislature finds that limiting such table games as authorized under this article to facilities authorized by the provisions of article twenty-three, chapter nineteen of this code which are licensed pursuant to the provisions of article twenty-two-a of this chapter to operate video lottery terminals is the most efficient and effective manner in which to regulate licensees.

(9) The Legislature finds that the granting of licenses pursuant to the provisions of this article while maintaining all ownership rights and exercising control through strict regulation of all West Virginia lottery table games authorized by the provisions of this article constitutes an appropriate exercise by the Legislature of the power granted it by the Constitution pursuant to the provisions of section thirty-six, article VI of the Constitution of West Virginia.

(10) The Legislature finds that the operation of West Virginia lottery table games at racetracks licensed pursuant to the provision of article twenty-two-a of this chapter and by the provisions of article twenty-three, chapter nineteen of this code serves to protect, preserve and promote the horse and dog racing and breeding industries of this state and will serve to protect, promote and enhance the tourism industry of the state as well as the general fiscal well-being of the state and its subdivisions.

§29-22C-3. Definitions.

(a) Applicability of definitions. -- For the purposes of this article, the words or terms defined in this section, and any variation of those words or terms required by the context, have the meanings ascribed to them in this section. These definitions are applicable unless a different meaning clearly appears from the context in which the word or term is used.

(b) Terms defined. --

(1) "Adjusted gross receipts" means gross receipts from West Virginia Lottery table games less winnings paid to patrons wagering on the racetrack's table games.

(2) "Applicant" means any person who on his or her own behalf, or on behalf of another, has applied for permission to engage in any act or activity that is regulated under the provision of this article for which a license is required by this article or rule of the commission.

(3) "Application" means any written request for permission to engage in any act or activity that is regulated under the provisions of this article submitted in the form prescribed by the commission.

(4) "Background investigation" means a security, criminal and credit investigation of an applicant who has applied for the issuance or renewal of a license pursuant to this article, or a licensee who holds a current license.

(5) "Commission" or "State Lottery Commission" means the West Virginia Lottery Commission created by article twenty-two of this chapter.

(6) "Complimentary" means a service or item provided at no cost or at a reduced price.

(7) "Compensation" means any money, thing of value, or financial benefit conferred or received by a person in return for services rendered, or to be rendered, whether by that person or another.

(8) "Contested case" means a proceeding before the commission, or a hearing examiner designated by the commission to hear the contested case, in which the legal rights, duties, interests or privileges of specific persons are required by law or Constitutional right to be determined after a commission hearing, but does not include cases in which the commission issues a license, permit or certificate after an examination to test the knowledge or ability of the applicant where the controversy concerns whether the examination was fair or whether the applicant passed the examination and does not include rule making.

(9) "Control" means the authority directly or indirectly to direct the management and policies of an applicant for a license issued under this article or the holder of a license issued under this article.

(10) "Designated gaming area" means one or more specific floor areas of a licensed racetrack within which the commission has authorized operation of racetrack video lottery terminals or table games, or the operation of both racetrack video lottery terminals and West Virginia Lottery table games.

(11) "Director" means the Director of the West Virginia State Lottery Commission appointed pursuant to section six, article twenty-two of this chapter.

(12) "Disciplinary action" is an action by the commission suspending or revoking a license, fining, excluding, reprimanding or otherwise penalizing a person for violating this article or rules promulgated by the commission.

(13) "Financial interest" or "financially interested" means any interest in investments, awarding of contracts, grants, loans, purchases, leases, sales or similar matters under consideration for consummation by the commission. A member, employee or agent of the commission will be considered to have a financial interest in a matter under consideration if any of the following circumstances exist:

(A) He or she owns one percent or more of any class of outstanding securities that are issued by a party to the matter under consideration by the commission; or

(B) He or she is employed by an independent contractor for a party to the matter under consideration or consummated by the commission.

(14) "Gaming equipment" means gaming tables, cards, dice, chips, shufflers, drop boxes or any other mechanical, electronic or other device, mechanism or equipment or related supplies used or consumed in the operation of any West Virginia Lottery table game at a licensed racetrack.

(15) "Gross receipts" means the total of all sums including valid or invalid checks, currency, tokens, coupons (excluding match play coupons), vouchers or instruments of monetary value whether collected or uncollected, received by a racetrack with table games from table gaming operations at a race track, including all entry fees assessed for tournaments or other contests.

(16) "Indirect ownership" means an interest a person owns in an entity or in property solely as a result of application of constructive ownership rules without regard to any direct ownership interest (or other beneficial interest) in the entity or property. "Indirect ownership" shall be determined under the same rules applicable to determining whether a gain or loss between related parties is recognized for federal income tax purposes.

(17) "Licensed racetrack" means a thoroughbred horse or greyhound dog racing facility licensed under both article twenty-two-a of this chapter and article twenty-three, chapter nineteen of this code.

(18) "License" means any license applied for or issued by the commission under this article, including, but not limited to:

(A) A license to act as agent of the commission in operating West Virginia Lottery table games at a licensed racetrack;

(B) A license to supply a racetrack licensed under this article to operate table games with table gaming equipment or services necessary for the operation of table games;

(C) A license to be employed at a racetrack licensed under this article to operate West Virginia Lottery table games when the employee works in a designated gaming area that has table games or performs duties in furtherance of or associated with the operation of table games at the licensed racetrack; or

(D) A license to provide management services under a contract to a racetrack licensed under this article to operate table games.

(19) "Licensee" means any person who is licensed under any provision of this article.

(20) "Lottery" means the public gaming systems or games regulated, controlled, owned and operated by the state Lottery Commission in the manner provided by general law, as provided in this article and in articles twenty-two, twenty-two-a, twenty-two-b and twenty-five of this chapter.

(21) "Member" means a commission member appointed to the West Virginia Lottery Commission under article twenty-two of this chapter.

(22) "National criminal history background check system" means the criminal history record system maintained by the Federal Bureau of Investigation based on fingerprint identification or any other method of positive identification.

(23) "Own" means any beneficial or proprietary interest in any real or personal property, including intellectual property, and also includes, but is not limited to, any direct or indirect beneficial or proprietary interest in any business of an applicant or licensee.

(24) "Person" means any natural person, and any corporation, association, partnership, limited liability company, limited liability partnership, trust or other entity, regardless of its form, structure or nature other than a government agency or instrumentality.

(25) "Player" or "Patron" means a person who plays a racetrack video lottery game or a West Virginia Lottery table game at a racetrack licensed under this article to have table games.

(26) "Player's account" means a financial record established by a licensed racetrack for an individual racetrack patron to which the racetrack may credit winnings and other amounts due to the racetrack patron and from which the patron may withdraw moneys due to the patron for purchase of tokens, chips or electronic media or other purposes.

(27) "Racetrack table games license" means authorization granted under this article by the commission to a racetrack that is already licensed under article twenty-two-a of this chapter to operate racetrack video lottery terminals and holds a valid racing license granted by the West Virginia Racing Commission pursuant to the provision of article twenty-three, chapter nineteen of this code, which permits the racetrack as an agent of the commission for the limited purpose of operation of West Virginia Lottery table games in one or more designated gaming areas in one or more buildings owned by the licensed racetrack on the grounds where live pari-mutuel racing is conducted by the licensee.

(28) "Racetrack Table Games Fund" means the special fund in the state Treasury created in section twenty-seven of this article.

(29) "Significant influence" means the capacity of a person to affect substantially (but not control) either, or both, of the financial and operating policies of another person.

(30) "Supplier" means a person who the commission has identified under legislative rules of the commission as requiring a license to provide a racetrack table games licensee with goods or services to be used in connection with operation of table games.

(31) "Wager" means a sum of money or thing of value risked on an uncertain occurrence.

(32) "West Virginia Lottery table game" means any game played with cards, dice or any mechanical, electromechanical or electronic device or machine for money, credit or any representative of value, including, but not limited to, baccarat, blackjack, poker, craps, roulette, wheel of fortune or any variation of these games similar in design or operation and expressly authorized by rule of the commission, including multiplayer electronic table games, machines and devices, but excluding video lottery, punchboards, faro, numbers tickets, push cards, jar tickets, pull tabs or similar games.

(33) "Winnings" means the total cash value of all property or sums including currency, tokens, or instruments of monetary value paid to players as a direct result of wagers placed on West Virginia Lottery table games.

§29-22C-4. Commission duties and powers.

(a) Duties. -- In addition to the duties set forth elsewhere in this article or in articles twenty-two, twenty-two-a, twenty-two-b and twenty-five of this chapter, the commission shall:

(1) Establish minimum standards for gaming equipment, including, but not limited to, electronic and mechanical gaming equipment;

(2) Enter into licensing agreements with facilities eligible to operate West Virginia Lottery table games for the state, providing criteria and guidelines for preservation of the state's ownership, operation and control interests as provided by general law herein;

(3) Approve, modify or reject game rules of play proposed by the licensee for West Virginia Lottery table games proposed to be operated at a licensed racetrack;

(4) Approve, modify or reject minimum internal control standards proposed by the licensee governing racetrack table game operations, including the maintenance of financial records;

(5) Approve staff considered necessary by the director to oversee, inspect and monitor the operation of table games at any racetrack licensed under this article and article twenty-two-a of this chapter, including, but not limited to, inspection of designated gaming areas, gaming equipment and security equipment used in the operation of table games to assure continuous compliance with the provisions of this article, required license conditions and terms, and applicable rules of the commission;

(6) Determine eligibility of a person to hold or continue to hold a license issued under this article;

(7) Issue all licenses;

(8) Maintain a record of all licenses issued;

(9) Levy and collect the taxes imposed by this article and the fees, surcharges and civil penalties authorized, required or specified in this article or the legislative rules of the commission, and receive, accept and pay all taxes, fees, surcharges and civil penalties collected under this article into the Racetrack Table Games Fund, except as otherwise provided under this article; and

(10) Keep a public record of all commission actions and proceedings with respect to West Virginia Lottery table games.

(b) Powers. -- In addition to the powers set forth elsewhere in this article or in articles twenty-two, twenty-two-a, twenty-two-b and twenty-five of this chapter, the commission may:

(1) Sue to enforce any provision of this article or any rule of the commission, whether by civil action or petition for injunctive relief;

(2) Hold hearings, administer oaths and issue subpoenas for attendance of witnesses to testify or subpoenas duces tecum for the production of documents or other evidence;

(3) Enter a licensed racetrack with West Virginia Lottery table games at any time and without notice to ensure strict compliance with this article and with the rules of the commission;

(4) Bar, for cause, any person from:

(A) Entering a designated gaming area of a licensed racetrack with table games, or the grounds of a racetrack licensed under this article; or

(B) Participating in any capacity in the play of any West Virginia Lottery table game, or in the operation of West Virginia Lottery table games;

(5) Promulgate, or propose for promulgation, in accordance with the provision of article three, chapter twenty-nine-a of this code, any legislative, interpretive and procedural rules the commission considers necessary for the successful implementation, administration and enforcement of this article, and to amend or revoke any promulgated rule, in accordance with provisions of article three, chapter twenty-nine-a of this code, at the discretion of the commission. Any rule proposed by the commission before September 1, 2007 may be promulgated as an emergency rule;

(6) Upon the effective date of this article and prior to promulgation of emergency rules, the commission may accept applications, evaluate qualifications of applicants, and undertake initial review of licenses for: racetracks under section eight of this article; suppliers under section eleven of this article; racetrack employees under section twelve of this article; and providers of management services under section thirteen of this article; and

(7) Exercise any other powers necessary to effectuate the provisions of this article and the rules of the commission.

§29-22C-5. Appointment of commission staff; conditions of employment.

(a) The director, with the approval of the commission, may appoint any professional, clerical, technical and administrative personnel, who shall be state employees hired in accordance with article six, chapter twenty-nine of this code, which the director considers necessary to carry out the provisions of this article. Prior to his or her appointment, each applicant for a position shall provide his or her fingerprints and shall undergo a thorough background investigation.

(b) No commission employee may directly or indirectly hold an ownership or a financial interest in any racetrack table game license, or a supplier license, or a management services license, or in a holding company that owns the license, or in a business related to the license for federal income tax purposes, or be an applicant for any of these licenses.

(c) No commission employee may knowingly wager or be paid any prize from any wager at any licensed racetrack with West Virginia Lottery table games within this state or at any facility outside this state or this country that is directly or indirectly owned or operated:

(1) By a racetrack table games licensee that is licensed pursuant to this article; or

(2) By any person who directly or indirectly owns the racetrack table games license.

§29-22C-6. Licenses required.

(a) No person may engage in any activity in connection with a racetrack with West Virginia Lottery table games in this state for which a license is required by this article or rules of the commission unless all necessary licenses have been obtained in accordance with this article and rules of the commission.

(b) Licenses are required for the following purposes:

(1) For any person operating a racetrack West Virginia Lottery table game in the state;

(2) For any person supplying a racetrack table games licensee with gaming equipment or gaming equipment services;

(3) For any individual employed by a racetrack table games licensee in connection with the operation of West Virginia Lottery table games in the state; and

(4) For any person providing management services under a contract to a racetrack table games licensee.

(c) The commission may not grant a license to an applicant until the commission determines that each person who has control of the applicant also meets all of the qualifications the applicant must meet to hold the license for which application is made. The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation;

(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant; and

(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant's business operation.

(d) Any license required by this article or rules of the commission is in addition to all other licenses or permits required by applicable federal, state or local law.

§29-22C-7. Local option election.

(a) No racetrack may be licensed under this article to operate West Virginia Lottery table games until a local option election is held in the county in which pari-mutuel wagers are received at a racetrack licensed under article twenty-three, chapter nineteen of this code and the voters of that county voting on the question approve having West Virginia Lottery table games at the racetrack.

(b) The county commission shall place the question on the ballot upon the receipt of a written notice from a licensed racetrack located within that county requesting that the question be placed on the ballot.

(c) The county commission of the county in which table games would be located shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication shall be the county in which the election is to be held. The date of the last publication of the notice shall fall on a date at least thirty days preceding the day of the election. A local option election shall be effective even though the date of the order of the county commission setting the election or the date of publication of notice of the election is prior to the effective date of this article if the election is otherwise held in accordance with the provisions of this section.

(d) On the local option election ballot shall be printed the following:

Shall West Virginia Lottery table games be permitted at the [name of licensed racetrack]?

[ ] Yes[ ] No

(Place a cross mark in the square next to your choice.)

(e) The local option election shall be held in conjunction with the next primary or general election scheduled more than ninety days following receipt by the county commission of the notice required by this section or at a special election: Provided, That upon written request by the licensed racetrack that a special election be called, the county commission shall order a special election to be held on the question within ninety days after the receipt by the county commission of that request. The county commission may require the licensed racetrack to pay the entire cost incurred by the county to hold the special election. Approval shall be by a majority of the voters casting votes at the election on the question of approval or disapproval of West Virginia Lottery table games at a licensed racetrack.

(f) If the majority votes against allowing table games at a licensed racetrack, no election on the issue shall be held for a period of one hundred four weeks. A local option election may thereafter be held in the manner provided in this section. The process to hold another election on the question shall start anew, as if no prior request for an election on the question had been filed with county commission and as if there had been no prior election on the question.

(g) If the majority votes for allowing West Virginia Lottery table games at a licensed racetrack facility in a county, another local option election on the issue shall 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 horse or dog racetrack is located. The petition may be in any number of counterparts. The petition shall be in the following form:

Petition For Local Option Election

We, the undersigned legally qualified voters, resident within the County of __________________, do hereby petition that a special election be held within the County of _________________ upon the following question: Shall West Virginia Lottery table games be permitted at the [name of racetrack]?

Name Address Date

(Post office or street address)

§29-22C-8. License to operate a racetrack with West Virginia Lottery table games.

(a) Racetrack table games licenses. — The commission may issue up to four racetrack table games licenses to operate West Virginia Lottery table games in accordance with the provisions of this article. The Legislature intends that no more than four licenses to operate a racetrack with West Virginia Lottery table games in this state shall be permitted in any event.

(b) Grant of license. — Upon the passage of a local option election in a county in accordance with the provisions of §29-22C-7 of this code, the commission shall immediately grant a West Virginia Lottery table games license, and a license for the right to conduct West Virginia Lottery table games as assignee to the intellectual property rights of the state, to allow the licensee to conduct West Virginia Lottery table games at the licensed pari-mutuel racetrack identified on the local option election ballot, provided that racetrack holds a valid racetrack video lottery license issued by the commission pursuant to §29-22A-1 et seq. of this code and a valid racing license granted by the West Virginia Racing Commission pursuant to the provisions of §19-23-1 et seq. of this code and has otherwise met the requirements for licensure under the provisions of this article and the rules of the commission.

(c) Location. — A racetrack table games license authorizes the operation of West Virginia Lottery table games on the grounds of the particular licensed facility identified in the racetrack video lottery license issued pursuant to §29-22A-1 et seq. of this code and the license to conduct horse or dog racing issued pursuant to §19-23-1 et seq. of this code.

(d) Floor plan submission requirement. — Prior to commencing the operation of any table games in a designated gaming area, a racetrack table games licensee shall submit to the commission for its approval a detailed floor plan depicting the location of the designated gaming area in which table games gaming equipment will be located and its proposed arrangement of the table games gaming equipment. Any floor plan submission that satisfies the requirements of the rules promulgated by the commission shall be considered approved by the commission unless the racetrack table games licensee is notified in writing to the contrary within one month of filing a detailed floor plan.

(e) Management service contracts. —

(1) Approval. — A racetrack table games licensee may not enter into any management service contract that would permit any person other than the licensee to act as the commission’s agent in operating West Virginia Lottery table games unless the management service contract is: (A) With a person licensed under this article to provide management services; (B) is in writing; and (C) the contract has been approved by the commission.

(2) Material change. — The licensed racetrack table games licensee shall submit any material change in a management service contract previously approved by the commission to the commission for its approval or rejection before the material change may take effect.

(3) Prohibition on assignment or transfer. — A management services contract may not be assigned or transferred to a third party.

(4) Other commission approvals and licenses. — The duties and responsibilities of a management services provider under a management services contract may not be assigned, delegated, subcontracted, or transferred to a third party to perform without the prior approval of the commission. Third parties must be licensed under this article before providing service. The commission may by rule clarify application of this subdivision and provide exceptions to its application. The commission shall license and require the display of West Virginia Lottery game logos on appropriate game surfaces and other gaming items and locations as the commission considers appropriate.

(f) Coordination of licensed activities. — In order to coordinate various licensed activities within racetrack facilities, the following provisions apply to licensed racetrack facilities:

(1) The provisions of this article and of §29-22A-1 et seq. of this code shall be interpreted to allow West Virginia Lottery table games and racetrack video lottery operations under those articles to be harmoniously conducted in the same designated gaming area.

(2) On the effective date of this article, the provisions of §29-22C-23 of this code apply to all video lottery games conducted within a racetrack facility, notwithstanding any inconsistent provisions contained in §29-22A-1 et seq. of this code to the contrary.

(3) On and after the effective date of this article, vacation of the premises after service of beverages ceases is not required, notwithstanding to the contrary any inconsistent provisions of this code or inconsistent rules promulgated by the Alcohol Beverage Control Commissioner with respect to hours of sale of those beverages, or required vacation of the premises.

(g) Fees, expiration date, and renewal. —

(1) An initial racetrack table games license fee of $1,500,000 shall be paid to the commission at the time of issuance of the racetrack table games license, regardless of the number of months remaining in the license year for which it is issued. All licenses expire at the end of the day on September 30 each year.

(2) The commission shall annually renew a racetrack table games license as of October 1 of each year, provided the licensee:

(A) Successfully renews its racetrack video lottery license under §29-22A-1 et seq. of this code before October 1;

(B) Pays to the commission the annual license renewal fee of $2,500,000 required by this section at the time it files its application for renewal of its license under §29-22A-1 et seq. of this code; and

(C) During the current license year, the licensee complied with all provisions of this article, all rules adopted by the commission, and all final orders of the commission applicable to the licensee.

(3) Annual license surcharge for failure to construct hotel on premises. — It is the intent of the Legislature that each racetrack for which a racetrack table games license has been issued be or become a destination tourism resort facility. To that end, it is important that each racetrack for which a racetrack table games license has been issued operate a hotel with significant amenities. Therefore, in addition to all other taxes and fees required by the provisions of this article, there is hereby imposed, upon each racetrack for which a racetrack table games license has been issued an annual license surcharge, payable to the commission in the amount of $2,500,000 if that racetrack does not operate a hotel on its racing property that contains at least 150 guest rooms with significant amenities within three years of the passage of the local option election in its county authorizing table games at the racetrack, provided the time for completion of the hotel shall be extended by the same number of days as the completion of the hotel is delayed by force majeure events or conditions beyond the reasonable control of the racetrack licensee. The surcharge shall be paid upon each renewal of its racetrack table games license made after the expiration of the three year period, and may be extended by the above force majeure events or conditions, until the racetrack opens a qualifying hotel.

(4) If the licensee fails to apply to renew its license under §19-23-1 et seq. and §29-22A-1 et seq. of this code until after the license expires, the commission shall renew its license under this article at the time it renews its license under §29-22A-1 et seq. of this code, provided the licensee has paid the annual license fee required by this section and during the preceding license year the licensee complied with all provisions of this article, all rules adopted by the commission and all final orders of the commission applicable to the licensee.

(h) Facility qualifications. — A racetrack table games licensee shall demonstrate that the racetrack with West Virginia Lottery table games will: (1) Be accessible to disabled individuals in accordance with applicable federal and state laws; (2) be licensed in accordance with this article, and all other applicable federal, state, and local laws; and (3) meet any other qualifications specified in rules adopted by the commission.

(i) Surety bond. — A racetrack table games licensee shall execute a surety bond to be given to the state to guarantee the licensee faithfully makes all payments in accordance with the provisions of this article and rules promulgated by the commission. The surety bond shall be:

(1) In the amount determined by the commission to be adequate to protect the state against nonpayment by the licensee of amounts due the state under this article;

(2) In a form approved by the commission; and

(3) With a surety approved by the commission who is licensed to write surety insurance in this state. The bond shall remain in effect during the term of the license and may not be canceled by a surety on less than 30 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.

(j) Authorization. — A racetrack table games license authorizes the licensee act as an agent of the commission in operating an unlimited amount of West Virginia Lottery table games while the license is active, subject to subsection (d) of this section. A racetrack table games license is not transferable or assignable and cannot be sold or pledged as collateral.

(k) Audits. — When applying for a license and annually thereafter prior to license renewal, a racetrack table games licensee shall submit to the commission an annual audit, by a certified public accountant, of the financial transactions and condition of the licensee’s total operations. The audit shall be made in accordance with generally accepted accounting principles and applicable federal and state laws.

(l) Commission office space. — A racetrack table games licensee shall provide to the commission, at no cost to the commission, suitable office space at the racetrack facility for the commission to perform the duties required of it by this article and the rules of the commission.

§29-22C-9. State ownership of table games.

All table games authorized by this article shall be West Virginia lottery games owned by the State of West Virginia. A racetrack table games license granted to a pari-mutuel racetrack by the commission pursuant to this article shall include the transfer by the commission to the racetrack limited license rights in and to the commission's intellectual property ownership of the West Virginia lottery games which includes granting licensees limited lawful authority relating to the conduct of lottery table games for consideration, within the terms and conditions established pursuant to this article and any rules promulgated under this article.

§29-22C-10. Duties of racetrack table games licensee.

(a) General. -- All racetrack table games licensees shall:

(1) Promptly report to the commission any facts or circumstances related to the operation of a racetrack with West Virginia Lottery table games which constitute a violation of state or federal law;

(2) Conduct all table games activities and functions in a manner which does not pose a threat to the public health, safety or welfare of the citizens of this state and which does not adversely affect the security or integrity of the operation of West Virginia Lottery table games;

(3) Hold the commission and this state harmless from and defend and pay for the defense of any and all claims which may be asserted against a racetrack licensee, the commission, the state or employees thereof, arising from the licensee's actions or omission while acting as an agent of the commission by operation of West Virginia Lottery table games pursuant to this article;

(4) Assist the commission in maximizing table games revenues;

(5) Give preference in hiring to existing employees who have expressed an interest in transferring to an entry level West Virginia Lottery Table games job and who have demonstrated the potential to succeed in that job. To enable these employees to develop the skills necessary to fill an entry level West Virginia Lottery table games position, a licensee shall provide customary industry training for entry level West Virginia Lottery table games jobs. The dates, times, place and manner of providing such training, the appropriate qualifications and certifications, the number of existing employees to be trained, the determination of standards for evaluating successful performance in live auditions for such positions and the determination of who shall be given West Virginia Lottery table game jobs shall be within the sole business discretion of the licensee's management, provided that among equally qualified applicants, as determined by the licensee, length of service shall be the determining factor;

(6) Maintain all records required by the commission;

(7) Upon request by the commission, provide the commission access to all records and the physical premises where the licensee's table games activities and related activities occur, for the purpose of monitoring or inspecting the licensee's activities and the table games, gaming equipment and security equipment;

(8) Keep current in all payments and obligations to the commission; and

(9) Conduct no less than two hundred twenty live racing dates for each horse or dog race meeting or such other number of live racing dates as may be approved by the Racing Commission in accordance with the provisions of section twelve-b, article twenty-three, chapter nineteen of this code, and otherwise keep in good standing, all licenses and permits granted by the Racing Commission pursuant to section six, article twenty-three, chapter nineteen of this code, and any rules promulgated thereunder.

(b) Specific. -- All racetrack table games licensees shall:

(1) Acquire West Virginia Lottery table games and gaming equipment by purchase, lease or other assignment and provide a secure location for the placement, operation and play of the table games and gaming equipment;

(2) Permit no person to tamper with or interfere with the operation of any West Virginia Lottery table game;

(3) Ensure that West Virginia Lottery table games are within the sight and control of designated employees of the licensed racetrack with West Virginia Lottery table games and under continuous observation by security equipment in conformity with specifications and requirements of the commission;

(4) Ensure that West Virginia Lottery table games are placed and remain placed in the specific locations within designated gaming areas at the licensed racetrack which have been approved by the commission. West Virginia Lottery table games at a licensed racetrack shall only be relocated in accordance with the rules of the commission;

(5) Maintain at all times sufficient cash and gaming tokens, chips and electronic cards or other electronic media;

(6) Install, post and display conspicuously at locations within or about the licensed racetrack with West Virginia Lottery table games, signs, redemption information and other promotional material as required by the commission; and

(7) Assume liability for stolen money from any table game.

§29-22C-11. Reports by a racetrack table games licensee.

A racetrack table games licensee shall maintain daily records showing the gross receipts and adjusted gross receipts of the racetrack from West Virginia Lottery table games and shall timely file with the commission any additional reports required by rule promulgated by the commission or required by other provisions of this code.

§29-22C-12. License to supply a racetrack with gaming equipment or services.

(a) License. -- The commission may issue a license to a person to supply a racetrack licensed under this article with gaming equipment or services when the commission determines that the person meets the requirements of this section and any applicable rules of the commission.

(b) License qualifications. -- Each applicant who is an individual and each individual who controls an applicant, as provided in subsection (c) section six of this article, shall be of good moral character, honesty and integrity and shall have the necessary experience and financial ability to successfully carry out the functions of a West Virginia Lottery table games supplier. The commission may adopt rules establishing additional requirements for a West Virginia Lottery table games supplier. The commission may accept licensing by another jurisdiction, specifically determined by the commission to have similar licensing requirements, as evidence the applicant meets West Virginia Lottery table games supplier licensing requirements.

(c) Supplier specifications. -- An applicant for a license to supply gaming equipment or services to a racetrack table games licensee shall demonstrate that the gaming equipment or services that the applicant plans to offer to the racetrack table games licensee conform or will conform to standards established by rules of the commission and applicable state law. The commission may accept gaming equipment or services approval by another jurisdiction, specifically determined by the commission to have similar equipment standards, as evidence the applicant meets the standards established by the commission and applicable state law.

(d) License application requirements. -- An applicant for a license to supply a racetrack table games licensee shall:

(1) Submit an application to the commission in the form the commission requires including adequate information to serve as a basis for a thorough background check;

(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and

(3) Pay to the commission a nonrefundable application and license fee for deposit into the Racetrack Table Games Fund in the amount of $100, which shall be in lieu of the first year's license fee provided in subsection (g) of this section.

(e) Authorization. -- A license to supply a racetrack table games licensee authorizes the licensee to sell or lease gaming equipment or offer services to a racetrack with West Virginia Lottery table games while the license is active. The commission may by rule establish the conditions which constitute an emergency under which the commission may issue provisional licenses pending completion of final action on an application.

(f) Inventory. -- A licensed table games supplier shall submit to the commission a list of all gaming equipment and services sold, delivered to or offered to a racetrack with West Virginia Lottery table games in this state when required by the commission.

(g) Fees, expiration date and renewal. -- A licensed table games supplier shall pay to the commission an annual license fee of $100 for an initial term beginning prior to the date of the supplier's first sale to a racetrack table games licensee and continuing through the end of the twelfth month thereafter whenever the licensee has paid the renewal fee and has continued to comply with all applicable statutory and rule requirements. The commission shall renew a license to supply a racetrack with West Virginia Lottery table games annually thereafter. A racetrack table games licensee may continue to use supplies acquired from a licensed table games supplier while that supplier was licensed, notwithstanding the expiration of the supplier's license, unless the commission finds a defect in those gaming supplies.

§29-22C-13. License to be employed in a racetrack with West Virginia Lottery table games.

(a) Licenses. -- The commission shall issue a license to be employed in the operation of racetrack table games to a person who meets the requirements of this section.

(b) License qualifications. -- To qualify for a license to be employed in the operation of West Virginia Lottery table games, the applicant shall be an individual of good moral character, honesty and integrity, and have been offered employment by the racetrack table games licensee contingent upon licensure pursuant to the provisions of this section. The commission by rule may establish different specific requirements for each job classification that may be created by the commission to recognize the extent to which a particular job classification has the ability to impact the proper operation of West Virginia Lottery table games.

(c) License application requirements. -- An applicant for a license to be employed by a racetrack with West Virginia Lottery table games in a position or to perform duties for which a license is required under this article or rules of the commission shall:

(1) Submit an application to the commission in the form required by the commission for each job classification including adequate information to serve as a basis for a thorough background check;

(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and

(3) Pay to the commission a nonrefundable application fee for deposit into the Racetrack Table Games Fund in the amount of $100. The fee may be paid on behalf of an applicant by the employer.

(d) Authorization. -- A license to be employed by a racetrack with West Virginia Lottery table games permits the licensee to be employed in the capacity designated by the commission with respect to the license while the license is still active.

(e) Renewal fee and form. -- Each licensed employee shall pay to the commission an annual license fee set by the commission by rule by June 30 of each year. The fee may vary based on the job classification of the applicant, but in no event shall it exceed $100. The fee may be paid on behalf of the licensed employee by the employer. In addition to a renewal fee, each licensed employee shall submit a renewal application on the form required by the commission.

§29-22C-14. License to be a provider of management services.

(a) License. -- The commission may issue a license to a person providing management services under a management services contract to a racetrack table games licensee when the commission determines that the person meets the requirements of this section and any applicable rules of the commission.

(b) License qualifications. -- Each applicant who is an individual and each individual who controls an applicant, as provided in subsection (c), section six of this article, shall be of good moral character, honesty and integrity and shall have the necessary experience and financial ability to successfully carry out the functions of a management services provider. The commission may adopt rules establishing additional requirements for an authorized management services provider. The commission may accept licensing by another jurisdiction, specifically determined by the commission to have similar licensing requirements, as evidence the applicant meets authorized management services provider licensing requirements.

(c) Management service provider specifications. -- An applicant for a license to provide management services to a racetrack table games licensee shall demonstrate that the management services that the applicant plans to offer to the racetrack table games licensee conform or will conform to standards established by rules of the commission and applicable state law. The commission may accept management services provider approval by another jurisdiction, specifically determined by the commission to have management services, as evidence the applicant meets the standards established by the commission and applicable state law.

(d) License application requirements. -- An applicant for a license to provide management services to a racetrack table games licensee shall:

(1) Submit an application to the commission in the form required by the commission including adequate information to serve as a basis for a thorough background check;

(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and

(3) Pay to the commission a nonrefundable application and license fee for deposit into the Racetrack Table Games Fund in the amount of $100, which shall be in lieu of the first year's license fee provided in subsection (f) of this section.

(e) Authorization. -- A license to provide management services to a racetrack table games licensee authorizes the licensee to provide management services to a racetrack with West Virginia Lottery table games while the license is active. The commission may by rule establish the conditions which constitute an emergency under which the commission may issue provisional licenses pending completion of final action on an application.

(f) Fees, expiration date and renewal. -- A licensed provider of management services shall pay to the commission an annual license fee of $100 for an initial term beginning prior to the date of the provider's first contract with a racetrack table games licensee and continuing through the end of the twelfth month thereafter whenever the licensee has paid the renewal fee and has continued to comply with all applicable statutory and rule requirements. The commission shall renew a license to provide management services to a racetrack with West Virginia Lottery table games annually thereafter. A racetrack table games licensee may continue to use the management services provided by the management services provider while that provider was licensed, notwithstanding the expiration of the provider's license, unless the commission finds the services provided are not conforming to standards established by rule of the commission and applicable state law.

§29-22C-15. License or registration prohibitions.

(a) The commission may not grant any license or registration pursuant to the provisions of this article if evidence satisfactory to the commission exists that the applicant:

(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 gaming operation, or had a license or registration revoked by any governmental authority of a state of the United States having responsibility for the regulation of gambling or gaming activities; or

(3) Has been convicted of a crime, a gambling-related offense, a theft or fraud offense, or has otherwise demonstrated, either by a police record or other satisfactory evidence, a lack of respect for law and order: Provided, That the Lottery Commission shall apply §29-22C-15(d) and §29-22C-15(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license being sought.

(b) In the case of an applicant for a license to supply a racetrack with West Virginia Lottery table games, the commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license:

(1) If the applicant or licensee has not demonstrated to the satisfaction of the commission financial responsibility sufficient to adequately meet the requirements of the proposed enterprise;

(2) If the applicant or licensee is not the true owner of the business or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in the business; or

(3) If the applicant or licensee is a corporation which sells more than five percent of a licensee’s voting stock, or more than five percent of the voting stock of a corporation which controls the licensee, or sells a licensee’s assets, other than those bought and sold in the ordinary course of business, or any interest in the assets, to any person not already determined by the commission to have met the qualifications of a licensee under this article.

(c) In the case of an applicant for a racetrack table games license, the commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license:

(1) If the applicant or licensee knowingly employs an individual in a job classification which includes West Virginia Lottery table games management duties who has been convicted of a gambling-related offense, or a theft, or fraud offense under the laws of this state, another state, the United States or a territory of the United States or knowingly employs any individual in a job classification which includes West Virginia Lottery table games management duties who has had a license relating to the operation of a gaming activity revoked by this state or any other state: Provided, That the Lottery Commission shall apply §29-22C-15(d) and §29-22C-15(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the licensed profession.

(2) If the applicant or licensee is not the true owner of the business or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in the business; or

(3) If the applicant or licensee is a corporation, which sells more than five percent of a licensee’s voting stock, or more than five percent of the voting stock of a corporation which controls the licensee or sells a licensee’s assets, other than those bought and sold in the ordinary course of business, or any interest in the assets, to any person not already determined by the commission to have met the qualifications of a licensee under this article, unless the sale has been approved in advance by the commission.

(d) The Lottery Commission may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the Lottery Commission shall consider at a minimum:

(1) The nature and seriousness of the crime for which the individual was convicted;

(2) The passage of time since the commission of the crime;

(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(4) Any evidence of rehabilitation or treatment undertaken by the individual.

(e) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the Lottery Commission shall permit the applicant to apply for initial licensure if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the Lottery Commission.

(f) An individual with a criminal record who has not previously applied for licensure may petition the Lottery Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the Lottery Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Lottery Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Lottery Commission may charge a fee to recoup its costs for each petition.

§29-22C-16. License or registration denial, revocation, suspension, and reprimand.

(a) Notwithstanding any provision of §29-22C-13(b) of this code to the contrary, the commission may deny a license or registration to any applicant, reprimand any licensee or registrant, or suspend or revoke a license or registration if the applicant, licensee, registrant, or any person having control of the applicant, licensee, or registrant:

(1) Fraudulently or deceptively obtains or attempts to obtain a license or registration for the applicant, licensee, registrant, or another person;

(2) Fraudulently or deceptively uses a license or registration;

(3) Is or has been convicted of a felony under the laws of this state, another state, the United States, or a territory of the United States: Provided, That in the event an applicant is seeking initial licensure, the Lottery Commission shall apply §29-22C-15(d) and §29-22C-15(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the licensed profession; or

 4) Is or has been convicted of a misdemeanor under the laws of this state, another state, the United States or a territory of the United States for gambling or a gambling related activity: Provided, That in the event an applicant is seeking initial licensure, the Lottery Commission shall apply §29-22C-15(d) and §29-22C-15(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the licensed profession.

(b) Instead of or in addition to reprimanding a licensee or registrant or suspending or revoking a license or registration, the commission may impose a civil penalty under §29-22C-31 of this code.

§29-22C-17. Hearing procedures.

(a) Right to a hearing. -- Except as otherwise provided by law, before the commission takes any adverse action involving a licensee under the provisions of this article, it shall give the persons against whom the action is contemplated an opportunity for a hearing before the commission or a hearing examiner designated by the commission.

(b) Notice of hearing and right to counsel. -- The commission shall give notice and hold the hearing in accordance with article five, chapter twenty-nine-a of this code. The notice shall be sent to the person by certified mail addressed to the last known address of the person at least thirty days before the hearing. The person may be represented at the hearing by legal counsel.

(c) Failure to comply with subpoena. -- If a person fails to comply with a subpoena issued for purposes of 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 or provide the item or items for which a subpoena duces tecum was issued, the commission or the commission's designated hearing examiner may hear and determine the matter.

(d) Appeal. -- Any person aggrieved by a final order or decision of the commission in a contested case may file a petition for appeal in the circuit court of Kanawha County within thirty days after the person received notice of the final order or decision, as provided in section four, article five, chapter twenty-nine-a of this code.

§29-22C-18. Notice of license expiration and renewal.

(a) At least two months before any license issued under this article expires, the commission shall send to the licensee, by mail addressed to the last known address of the licensee, 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.

§29-22C-19. Miscellaneous license provisions.

(a) The commission shall include on each license that it issues:

(1) The type of license;

(2) The identity and address of the licensee;

(3) The effective date of the license;

(4) For employee licenses, the picture of the licensee; and

(5) Any other information the commission considers appropriate.

(b) Each racetrack table games licensee, licensed supplier of a racetrack with West Virginia Lottery table games or a licensed management services provider 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 a state, local or municipal law-enforcement agency.

(c) Each holder of a license to be employed by a racetrack with West Virginia Lottery table games shall carry the license on his or her person at all times when present in a racetrack with West Virginia Lottery table games 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 in accordance with the rules of the commission.

(d) Each person licensed under this article shall give the commission written notice of any change of address or any change of any other information provided in the licensee's application for a license or for renewal of a license, as soon as the effective date of the change is known to the licensee but not later than thirty days after the change occurs.

§29-22C-20. Game rules of play; disputes.

(a) Each racetrack licensed as an agent of the commission authorized to operate West Virginia Lottery table games shall have written rules of play for each table game it operates that are approved by the commission before the table game is offered to the public. Rules of play proposed by a racetrack table games licensee may be approved, amended or rejected by the commission.

(b) All West Virginia Lottery table games shall be conducted according to the specific rules of play approved by the commission. All wagers and pay-offs of winning wagers shall be made according to those rules of play, which shall establish any limitations necessary to assure the vitality of table games operations.

(c) Each racetrack table game licensee shall make available in printed form to any patron, upon request of the patron, the complete text of the rules of play of any West Virginia Lottery table game in operation at its racetrack facility, pay-offs of winning wagers and any other advice to the player required by the commission.

(d) Patrons are considered to have agreed that the determination of whether the patron is a valid winner is subject to the game play rules and, in the case of any dispute, will be determined by the commission. The determination by the commission shall be final and binding upon all patrons and shall not be subject to further review or appeal.

§29-22C-21. Betting limits; operations and services.

(a) Notwithstanding anything to the contrary contained elsewhere in this article, a racetrack licensee may, as agent of the commission, in the exercise of its business judgment, determine and establish with the approval of the commission, with respect to West Virginia lottery table games, the following:

(1) Minimum and maximum wagers;

(2) Advertising and promotional activities, and the offering of any complimentary to a player, subject to the standards provided in section twenty-three of this article and rules of the commission;

(3) Hours of operation;

(4) The days during which games may be played; and

(5) Currency denominations accepted by any mechanical or electronic bill acceptors.

(b) Notwithstanding anything to the contrary contained elsewhere in this chapter, the commission may establish the following parameters for any commission regulated lottery game of any kind which is played at a licensed racetrack:

(1) Minimum and maximum payout percentages;

(2) Any probability limits of obtaining the maximum payout for a particular play; and

(3) Limitations on the types and amounts of financial transactions, including extension of credit to a patron, which a racetrack can enter into with its patrons.

§29-22C-22. Posting of betting limits.

A racetrack table game licensee shall conspicuously post a sign at each West Virginia Lottery table game indicating the permissible minimum and maximum wagers pertaining at that table. A racetrack table games licensee may not require any wager to be greater than the stated minimum or less than the stated maximum. However, any wager actually made by a patron and not rejected by a racetrack table games licensee prior to the commencement of play shall be treated as a valid wager.

§29-22C-23. Complimentary service, gift, cash or other item.

(a) No racetrack table games licensee may offer or provide any complimentary service, gift, cash or other item of value to any person unless:

(1) The complimentary consists of room, food, beverage or entertainment expenses provided directly to the patron and his or her guests by the racetrack table games licensee or indirectly to the patron and his or her guests on behalf of the licensee by a third party;

(2) The complimentary consists of documented transportation expenses provided directly to the patron and his or her guests on behalf of a racetrack table games licensee by a third party, provided that the licensee complies with the rules promulgated by the commission to ensure that a patron's and his or her guests' documented transportation expenses are paid for or reimbursed only once; or

(3) The complimentary consists of coins, tokens, cash or other complimentary items or services provided through any complimentary distribution program, the terms of which shall be filed with the commission upon implementation of the program or maintained pursuant to commission rule. Any change in the terms of a complimentary program shall be filed with the commission upon implementation of the change.

(b) Notwithstanding any provision of subsection (a) of this section to the contrary, a racetrack table games licensee may offer and provide complimentary cash or noncash gifts that are not otherwise included in that subsection to any person: Provided, That any complimentary cash or noncash gifts in excess of an amount per trip to be set by interpretive rule of the commission, are supported by documentation regarding the reason the gift was provided to the patron and his or her guests, including where applicable a patron's player rating. The documentation shall be maintained by a racetrack table games licensee in accordance with commission rules. For purposes of this subsection, all gifts presented to a patron and a patron's guests directly by the racetrack table games licensee or indirectly on behalf of the licensee by a third party within any five-day period shall be considered to have been made during a single trip.

§29-22C-24. Law enforcement.

(a) Generally. – Notwithstanding any provision of this code to the contrary, the commission shall, by contract or cooperative agreement with the West Virginia State Police, arrange for those law-enforcement services uniquely related to gaming as such occurs at facilities of the type authorized by this article that are necessary to enforce the provisions of this article.

(b) Costs. – The cost of services provided by the West Virginia State Police pursuant to a contract or cooperative agreement entered into pursuant to the provisions of subsection (a) of this section, including, but not limited to necessary training costs, shall be paid by the commission as an administrative expense.

(c) Notwithstanding any provision of this code to the contrary, the West Virginia State Police shall have exclusive jurisdiction over felony offenses committed on the grounds of any racetrack licensed under the provisions of this article.

§29-22C-25. Inspection and seizure.

As a condition of licensure, to inspect or investigate for criminal violations of this article or violations of the rules promulgated by the commission, the commission's agents and the West Virginia State Police may each, without notice and without warrant:

(1) Inspect and examine all premises of the racetrack with West Virginia Lottery table games, gaming devices, the premises where gaming equipment is manufactured, sold, distributed or serviced or any premises in which any records of the activities are prepared or maintained;

(2) Inspect any gaming equipment in, about, upon or around the premises of a racetrack with West Virginia Lottery table games;

(3) Seize summarily and remove from the premises and impound any gaming equipment for the purposes of examination, inspection or testing;

(4) Inspect, examine and audit all books, records, and documents pertaining to a racetrack table games licensee's operation;

(5) Summarily seize, impound or assume physical control of any book, record, ledger, table game, gaming equipment or device, cash box and its contents, counting room or its equipment or West Virginia Lottery table games operations; and

(6) Inspect the person, and the person's personal effects present on the grounds of a licensed racetrack with West Virginia Lottery table games, of any holder of a license issued pursuant to this article, while that person is present on the grounds of a licensed racetrack with West Virginia Lottery table games.

§29-22C-26. Tax on the privilege of holding a license to operate West Virginia Lottery table games.

(a) Imposition and rate of tax. -- For the privilege of holding a license under this article to operate table games, there is levied and shall be collected from the racetrack table games licensee the annual privilege tax imposed by this section. The tax shall be thirty-five percent of the licensee's adjusted gross receipts from the operation of West Virginia Lottery table games. For purposes of calculating the amount of tax due under this section, the licensee shall use the accrual method of accounting.

(b) Tax returns and payment of tax. --

(1) The annual tax levied by subsection (a) of this section is due and payable to the commission in weekly installments on or before the Wednesday of the calendar week following the week in which the adjusted gross receipts were received and the tax accrued.

(2) The racetrack table games licensee shall, on or before Wednesday of each week, make out and submit by electronic communication to the commission, a return for the preceding week, in the form prescribed by the commission, showing:

(A) The total gross receipts and adjusted gross receipts from operation of West Virginia Lottery table games during that week;

(B) The amount of tax for which the racetrack table games licensee is liable; and

(C) Any additional information necessary in the computation and collection of the tax required by the commission.

(3) The amount of tax shown to be due on the return shall be remitted by electronic funds transfer simultaneously with the filing of the return. All payments received pursuant to this section shall be deposited in the Racetrack Table Games Fund in accordance with the provisions of section twenty-seven of this article.

(4) When adjusted gross receipts for a week is a negative number because the winnings paid to patrons wagering on the racetrack's West Virginia Lottery table games exceeds the racetrack's gross receipts from the purchase of table game tokens, chips or electronic media by patrons, the commission shall allow the licensee to, pursuant to rules of the commission, carry over the negative amount of adjusted gross receipts to returns filed for subsequent weeks. The negative amount of adjusted gross receipts may not be carried back to an earlier week and the commission is not required to refund any tax received by the commission, except when the licensee surrenders its license to act as agent of the commission in operating West Virginia lottery table games under this article and the licensee's last return filed under this section shows negative adjusted gross receipts. In that case, the commission shall multiply the amount of negative adjusted gross receipts by the applicable rate of tax and pay the amount to the licensee, in accordance with rules of the commission.

(c) Tax imposed by this section is in lieu of other taxes. -–

(1) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all other state taxes and fees imposed on the operation of, or the proceeds from operation of West Virginia Lottery table games, except as otherwise provided in this section.

The Consumers Sales and Services Tax imposed pursuant to article fifteen, chapter eleven of this code, shall not apply to the licensee's gross receipts from any wagering on West Virginia Lottery table games authorized pursuant to this article or to the licensee's purchase of gaming equipment, supplies or services directly used in operation of the table games authorized by this article. These purchases are also exempt from the Use Tax imposed by article fifteen-a, chapter eleven of this code.

(2) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all local taxes and fees levied on or imposed with respect to the privilege of offering West Virginia Lottery table games to the public, including, but not limited to, the municipal business and occupation taxes and amusement taxes authorized by article thirteen, chapter eight of this code, and the municipal sales and service tax and use taxes authorized by article thirteen-c, chapter eight of this code.

(d) Prohibition on credits. -- Notwithstanding any other provision of this code to the contrary, no credit may be allowed against the tax imposed by this section or against any other tax imposed by any other provision of this code for any investment in gaming equipment, or for any investment in real property, or in improvements to the real property, that is used in the operation of West Virginia Lottery table games.

§29-22C-27. West Virginia Lottery Racetrack Table Games Fund; Community-Based Service Fund; State Debt Reduction Fund; distribution of funds.

(a) (1) The special fund in the State Treasury known as the West Virginia Lottery Racetrack Table Games Fund is continued and all tax collected under this article shall be deposited with the State Treasurer and placed in the West Virginia Lottery Racetrack Table Games Fund. The fund shall be an interest-bearing account with all interest or other return earned on the money of the fund credited to and deposited in the fund.

(2) Notwithstanding any provision of this article to the contrary, all racetrack table games license fees received by the commission pursuant to section eight of this article shall be deposited into the Community-Based Service Fund which is continued in the State Treasury. Moneys of the fund shall be expended by the Bureau of Senior Services upon appropriation of the Legislature solely for the purpose of enabling the aged and disabled citizens of this state to maintain their residency in the community-based setting through the provision of home and community-based services.

(b) From the gross amounts deposited into the Racetrack Table Games Fund pursuant to subsection (a) of this section, the commission shall:

(1) Retain an amount for the administrative expenses of the commission as determined by the commission in accordance with subsection (e) of this section;

(2) Transfer two and one-half percent of adjusted gross receipts from all thoroughbred racetracks with West Virginia Lottery table games to the special funds established by each thoroughbred racetrack table games licensees for the payment of regular racetrack purses, the amount being divided on a pro rata basis between the special funds of each thoroughbred racetrack table games licensee and transfer two and one-half percent of adjusted gross receipts from all greyhound racetracks with West Virginia Lottery table games to the special funds established by each greyhound racetrack table games licensees for the payment of regular racetrack purses, the amount being divided equally between the special funds of each greyhound racetrack table games licensee;

(3) Transfer two percent of the adjusted gross receipts from all licensed racetracks to the West Virginia Thoroughbred Development Fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund created under section ten, article twenty-three, chapter nineteen of this code. The total amount transferred under this subdivision shall be divided pro rata among the development funds for each racetrack table games licensee based on relative adjusted receipts from each racetrack. The amounts transferred to these funds may not be used for the benefit of any person or activity other than at or associated with a racetrack table games licensee;

(4) Transfer one percent of the adjusted gross receipts from each licensed racetrack to the county commissions of the counties where racetracks with West Virginia Lottery table games are located. County commissions may pledge this money to make payments on lottery revenue bonds issued pursuant to article two-h, chapter thirteen of this code. The one percent transferred under this subdivision shall be divided pro rata among the counties with a racetrack with West Virginia Lottery table games based on relative adjusted gross receipts from each county's racetrack: Provided, That the county board of education of a growth county, as that term is defined in section three, article twenty, chapter seven of this code, which has enacted the Local Powers Act, and in which county a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1991, shall receive the one percent of adjusted gross receipts as provided in this subdivision for the purpose of public projects, as defined in section two, article two-h, chapter thirteen of this code or to make payments on lottery revenue bonds issued to finance public projects;

(5) Transfer two percent of the adjusted gross receipts from each licensed racetrack to the governing bodies of municipalities within counties where racetracks with West Virginia Lottery table games are located. Municipalities may pledge the money to make payments on lottery revenue bonds issued pursuant to article two-h, chapter thirteen of this code. This money shall be allocated as follows:

(A) One half of the amounts transferred under this subdivision shall be allocated to the municipalities within each county having a racetrack table games licensee, based on relative adjusted gross receipts from West Virginia Lottery table games from those racetracks and the total amount allocated to the municipalities within a county shall be divided pro rata among the municipalities based on each municipality's population determined at the most recent United States decennial census of population: Provided, That: (i) For each allocation, when a municipality is physically located in two or more counties, only that portion of its population residing in the county where the authorized table games are located shall be considered; (ii) a single municipality in a county where West Virginia Lottery racetrack table games are played may not receive a total share under this paragraph that is in excess of seventy-five percent of the total distribution under this paragraph for the county in which the municipality is located; and (iii) a municipality receiving moneys under this paragraph may not receive an amount which is less than that received by a municipality under provisions of subdivision (4), subsection (d) of this section; and

(B) One half of the amounts transferred under this subdivision shall be allocated pro rata to the municipalities within all the counties, having a racetrack table games licensee based on each municipality's population determined at the most recent United States decennial census of population: Provided, That: (i) A municipality which received funds above its pro rata share pursuant to subpart (iii), paragraph (A) of this subdivision may not receive an allocation under this paragraph; (ii) for each allocation, when a municipality is physically located in two or more counties, only that portion of its population residing in the county where the authorized table games are located shall be considered; and (iii) a single municipality in a county where West Virginia Lottery racetrack games are played may not receive a total share under this paragraph that is in excess of twenty-five percent of the total transfers under this paragraph: Provided, however, That the county board of education of a growth county, as that term is defined in section three, article twenty, chapter seven of this code, which has enacted the Local Powers Act, and in which county a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1991, shall receive the two percent of adjusted gross receipts as provided in this subdivision for the purpose of public projects, as defined in section two, article two-h, chapter thirteen of this code, or to make payments on lottery revenue bonds issued to finance the public projects;

(6) Transfer one half of one percent of the adjusted gross receipts to the governing bodies of municipalities in which a racetrack table games licensee is located. The municipalities shall each receive an equal share of the total amount allocated under this subdivision: Provided, That distribution under this subdivision may not be made to any municipality which did not have a licensed racetrack within its municipal boundaries as they existed on January 1, 2007: Provided, however, That if no racetrack table games licensee is located within a municipality, a transfer may not be made under this subdivision. The municipality may pledge this money to make payments on lottery revenue bonds issued pursuant to article two-h, chapter thirteen of this code; and

(7) Distribute the remaining amounts, hereinafter referred to as the net amounts in the Racetrack Table Games Funds, in accordance with the provisions of subsection (d) of this section.

(c) Beginning with the fiscal year following the licensing of every licensed racetrack to offer West Virginia Lottery racetrack table games under this article, subsection (b) of this section shall be superseded and replaced by this subsection for distribution of the balances in the fund established by subsection (a) of this section. From the gross amounts deposited into the fund, the commission shall:

(1) Retain an amount for the administrative expenses of the commission as determined by the commission in accordance with subsection(e) of this section;

(2) Transfer two and one-half percent of adjusted gross receipts from all thoroughbred racetracks with West Virginia Lottery table games to the special funds established by each thoroughbred racetrack table games licensee for the payment of regular racetrack purses, the amount being divided on a pro rata basis between the special funds of each thoroughbred racetrack table games licensee and transfer two and one-half percent of adjusted gross receipts from all greyhound racetracks with West Virginia Lottery table games to the special funds established by each greyhound racetrack table games licensee for the payment of regular racetrack purses, the amount being divided equally between the special funds of each greyhound racetrack table games licensee;

(3) Transfer two percent of the adjusted gross receipts from all licensed racetracks to the West Virginia Thoroughbred Development Fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund created under section ten, article twenty-three, chapter nineteen of this code. The total amount transferred under this subdivision shall be divided pro rata among the development funds for each racetrack table games licensee based on relative adjusted receipts from each racetrack. The amounts transferred to these funds may not be used for the benefit of any person or activity other than at or associated with a racetrack table games licensee;

(4) Transfer two percent of the adjusted gross receipts from each licensed racetrack to the county commissions of the counties where racetracks with West Virginia Lottery table games are located. The money transferred under this subdivision shall be divided pro rata among the counties with a racetrack with West Virginia Lottery table games based on relative adjusted gross receipts from each county's racetrack: Provided, That the county board of education of a growth county, as that term is defined in section three, article twenty, chapter seven of this code, which has enacted the Local Powers Act, and in which a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1991, shall receive one half of that county's share of adjusted gross receipts as provided in this subdivision for the purpose of capital improvements;

(5) Transfer three percent of the adjusted gross receipts from each licensed racetrack to the governing bodies of municipalities within counties where racetracks with West Virginia Lottery table games are located, which shall be allocated as follows:

(A) One half of the money transferred by this subdivision shall be allocated to the municipalities within each county, other than a county described in paragraph (C) of this subdivision, having a racetrack table games licensee based on relative adjusted gross receipts from West Virginia Lottery table games from those racetracks and the total amount allocated to the municipalities within a county shall be divided pro rata among the municipalities based on each municipality's population determined at the most recent United States decennial census of population: Provided, That: (i) For each allocation, when a municipality is physically located in two or more counties, only that portion of its population residing in the county where the authorized table games are located shall be considered; (ii) a single municipality in a county where West Virginia Lottery racetrack table games are played may not receive a total share under this paragraph that is in excess of seventy-five percent of the total distribution under this paragraph for the county in which the municipality is located; and (iii) a municipality receiving moneys under this paragraph may not receive an amount which is less than that received by a municipality under provisions of subdivision (4), subsection (d) of this section.

(B) One half of the money transferred under this subdivision shall be allocated pro rata to the municipalities within all the counties, other than a county described in paragraph (C) of this subdivision, having a racetrack table games licensee based on each municipality's population determined at the most recent United States decennial census of population: Provided, That: (i) A municipality which received funds above its pro rata share pursuant to subparagraph (iii), paragraph (A) of this subdivision shall not receive an allocation under this paragraph; (ii) for each allocation, when a municipality is physically located in two or more counties, only that portion of its population residing in the county where the authorized table games are located shall be considered; and (iii) a single municipality in a county where West Virginia Lottery racetrack games are played may not receive a total share under this paragraph that is in excess of twenty-five percent of the total transfers under this paragraph.

(C) Notwithstanding the provisions of paragraphs (A) and (B) of this subdivision, when a racetrack is located in a growth county, as that term is defined in section three, article twenty, chapter seven of this code, which has enacted the Local Powers Act, and in which county a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1991, the county board of education shall receive two thirds of the share of adjusted gross receipts from West Virginia Lottery table games from the racetrack in the county as provided in this subdivision and the municipalities within the county shall share the remaining one third of the total amount allocated as provided in this paragraph. The municipal one-third share shall be divided pro rata among the municipalities based on each municipality's population determined at the most recent United States decennial census of population. All money transferred under this paragraph shall be used by the county board of education and by the municipalities for the purpose of capital improvements;

(6) Transfer one half of one percent of the adjusted gross receipts to the governing bodies of municipalities in which a racetrack table games licensee is located. The municipalities shall each receive an equal share of the total amount allocated under this subdivision: Provided, That distribution under this subdivision may not be made to any municipality that did not have a licensed racetrack within its municipal boundaries as they existed on January 1, 2007: Provided, however, That if no racetrack table games licensee is located within a municipality, a transfer may not be made under this subdivision; and

(7) Distribute the remaining amounts, hereinafter referred to as the net amounts in the Racetrack Table Games Funds, in accordance with the provisions of subsection (d) of this section.

(d) From the net amounts in the Racetrack Table Games Fund, the commission shall:

(1) Transfer seventy-six percent to the State Debt Reduction Fund which is hereby continued in the State Treasury. Moneys of the fund shall be expended solely for the purpose of accelerating the reduction of existing unfunded liabilities and existing bond indebtedness of the state and shall be expended or transferred only upon appropriation of the Legislature;

(2) Transfer four percent, divided pro rata based on relative adjusted gross receipts from the individual licensed racetracks for and on behalf of all employees of each licensed racing association, into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of each licensed racing association;

(3) Transfer ten percent, to be divided and paid in equal shares, to each county commission in the state that is not eligible to receive a distribution under subdivision (4), subsection (b) of this section: Provided, That funds transferred to county commissions under this subdivision shall be used only to pay regional jail expenses and the costs of infrastructure improvements and other capital improvements: Provided, however, That up to fifty percent of these funds may be pledged to make payments on lottery revenue bonds issued pursuant to article two-h, chapter thirteen of this code; and

 (4) Transfer ten percent, to be divided and paid in equal shares, to the governing bodies of each municipality in the state that is not eligible to receive a distribution under subdivisions (5) and (6), subsection (b) of this section: Provided, That funds transferred to municipalities under this subdivision shall be used only to pay for debt reduction in municipal police and fire pension funds and the costs of infrastructure improvements and other capital improvements: Provided, however, That up to fifty percent of these funds may be pledged to make payments on lottery revenue bonds issued pursuant to article two-h, chapter thirteen of this code.

(e) All expenses of the commission incurred in the administration and enforcement of this article shall be paid from the Racetrack Table Games Fund, including reimbursement of state law-enforcement agencies for services performed at the request of the commission pursuant to this article. The commission's expenses associated with a particular racetrack with authorized table games under this article may not exceed three percent of the total annual adjusted gross receipts received from that licensee's operation of table games under this article, including, but not limited to, all license fees or other amounts attributable to the licensee's operation of table games under this article, except as provided in subdivision (2), subsection (a) of this section. However, for the fiscal year following the licensing of every licensed racetrack to offer West Virginia lottery racetrack table games under this article and for the fiscal year thereafter, the commission's expenses associated with a particular racetrack with authorized table games under this article may not exceed four percent of the total annual adjusted gross receipts received from that licensee's operation of table games under this article, including, but not limited to, all license fees or other amounts attributable to the licensee's operation of table games under this article, except as provided in subdivision (2), subsection (a) of this section. These expenses shall either be allocated to the racetrack with West Virginia Lottery table games for which the expense is incurred, if practicable, or be treated as general expenses related to all racetrack table games facilities and be allocated pro rata among the racetrack table games facilities based on the ratio that annual adjusted gross receipts from operation of table games at each racetrack with West Virginia Lottery table games bears to total annual adjusted gross receipts from operation of table games at all racetracks with West Virginia Lottery table games during the fiscal year of the state. From this allowance, the commission shall transfer at least $100,000 but not more than $500,000 into the Compulsive Gambling Treatment Fund created in section nineteen, article twenty-two-a of this chapter.

§29-22C-27a. Changes in distribution of adjusted gross receipts; distributions from excess lottery fund.

(a) Notwithstanding any provision of section twenty-seven of this article to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, the distribution directed pursuant to subdivision (1), subsection (d) of that section shall be reduced by one hundred percent.

(b) The total amount of reductions resulting from subsection (a) of this section shall be paid into the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter. For the fiscal year beginning July 1, 2014, and each fiscal year thereafter, distributions to be made pursuant to subdivisions (2) and (3), subsection (c), section twenty-seven of this article shall be reduced by ten percent, and the amounts resulting from the reduction shall be paid into the State Excess Lottery Revenue Fund.

(c) Notwithstanding any other provision of this code to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, moneys deposited to the State Excess Lottery Revenue Fund pursuant to this section shall be expended by the Lottery in accordance with appropriations.

(d) Prior to payment of any appropriation made pursuant to this section, debt service payments payable from the State Excess Lottery Fund shall first be paid in accordance with the provisions of sections eighteen-a, eighteen-d and eighteen-e, article twenty-two of this chapter and in the priority as defined by subsection (c), section eighteen-f, article twenty-two of this chapter.

(e) Notwithstanding any other provision of this code to the contrary, after payment of debt service from the State Excess Lottery Revenue Fund, all other distributions required by section eighteen-a, article twenty-two of this chapter and the distributions appropriated pursuant to this section shall be paid on a pro rata basis.

§29-22C-28. Prohibition on unauthorized wagering.

(a) A racetrack table games licensee may receive wagers only from an individual physically present in a designated gaming area at a licensed racetrack with West Virginia Lottery table games.

(b) All racetracks with West Virginia Lottery table games shall use a method of wagering whereby the table game player's money for wagering on table games is, at the request of the player, converted to tokens, electronic cards or other electronic media, or chips at the table or elsewhere at the licensed racetrack.

(1) The tokens, electronic cards or other electronic media, or chips issued by a licensee racetrack with West Virginia Lottery table games can only be used for wagering at that racetrack.

(2) Wagering on West Virginia Lottery table games may not be conducted with money or other negotiable currency or with tokens, electronic cards or other electronic media or chips not issued by the racetrack where the table games will be played.

(3) At the request of the player, the licensee shall convert a player's tokens, electronic cards or other electronic media or chips back to money.

(4) The licensee may not charge a fee for converting a player's money to an acceptable media for play at a gaming table or charge a fee for converting the acceptable media for wagering at a gaming table back to money.

(c) No licensed racetrack employee may place a wager on any table game at the employer's racetrack.

§29-22C-29. Offenses and penalties.

(a) A racetrack table games licensee is guilty of unlawful operation when:

(1) The licensee operates a West Virginia Lottery table game without authority of the commission to do so;

(2) The licensee operates a West Virginia Lottery table game in any location that is not a designated gaming area approved by the commission;

(3) The licensee knowingly conducts, carries on, operates or exposes for play or allows to be conducted, carried on, operated or exposed for play any table game or other device, equipment or material that has in any manner been tampered with or placed in a condition or operated in a manner, the result of which is designed to deceive the public;

(4) The licensee employs an individual in a position or to perform duties, for which a license is required by this article or rules of the commission and the employee does not have a license issued under the provisions of this article or the licensee continues to employ the individual in a position or to perform duties, for which a license is required by this article or rules of the commission, after the employee's license expired, was revoked by the commission or not renewed by the commission;

(5) The licensee acts or employs another person to act as if he or she is not an agent or employee of the licensee in order to encourage participation in a West Virginia Lottery table game at the licensed racetrack;

(6) The licensee knowingly permits an individual under the age of twenty-one years of age to enter or remain in a designated gaming area or to play racetrack video lottery terminals or West Virginia Lottery table games at a licensed racetrack authorized under this article to act as the commission's agent in operating the West Virginia Lottery table games; or

(7) The licensee exchanges tokens, chips, electronic media or other forms of credit to be used for wagering at a licensed racetrack authorized under this article to operate West Virginia Lottery table games, for anything of value except in exchange for money or credits to a player's account.

(b) A person is guilty of a misdemeanor when:

(1) The person knowingly makes a false statement on any application for a license under this article or on an application for renewal of a license issued under this article;

(2) The person operates, carries on or exposes for play a West Virginia Lottery table game prior to obtaining a license or after the person's license has expired and prior to actual renewal of the license or before the West Virginia Lottery table game and the licensee's rules for play of the game are approved or modified and approved by the commission; or

(3) The person works or is employed in a position requiring a license under the provisions of this article without having the license required by this article.

(c) A person is guilty of a felony when:

(1) The person offers, promises or gives anything of value or benefit to a person who has an ownership or financial interest in, is employed by or has a service contract with, a racetrack with West Virginia Lottery table games or to that person's spouse or any dependent child or dependent parent, pursuant to an agreement or arrangement, in fact or implied from the circumstances, with intent that the promise or thing of value or benefit will influence the actions of the person in order to affect or attempt to affect the outcome of a West Virginia Lottery table game, or to influence official action of the commission. For the purposes of this subdivision and subdivision (2) of this subsection, the term "person who is connected with a table games facility" includes, but is not limited to, a person licensed under this article as well as 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 racetrack with West Virginia Lottery table games, pursuant to an understanding or arrangement in fact or implied from the circumstances, 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 a West Virginia Lottery table game or to influence official action of the commission; or

(3) The person uses or possesses on property owned by the licensed racetrack or on property contiguous to the licensed racetrack, with the intent to use, an electronic, electrical or mechanical device that is designed, constructed or programmed to assist the user or another person:

(A) In projecting the outcome of a West Virginia Lottery table game;

(B) In keeping track of the cards dealt or in play;

(C) In analyzing the probability of the occurrence of an event relating to a West Virginia Lottery table game;

(D) In analyzing the strategy for playing or betting to be used in a West Virginia Lottery table game, except as permitted in writing by the commission; or

(E) In obtaining an advantage at playing any West Virginia Lottery table game at a licensed racetrack authorized under this article to operate West Virginia Lottery table games;

(4) The person manufactures, sells or distributes any card, chip, die, game or device, by whatever name called, that is intended by that person to be used to violate any provision of this article or the table gaming laws of any other state;

(5) The person places a bet after unlawfully acquiring knowledge of the outcome of the West Virginia Lottery table game that is the subject of the bet or aids a person in acquiring that knowledge for the purpose of placing a bet contingent on the outcome of a West Virginia Lottery table game authorized under this article;

(6) The person claims, collects, takes or attempts to claim, collect or take anything of value into or from a racetrack with West Virginia Lottery table games, with intent to defraud, without having made a wager contingent on winning a West Virginia Lottery table game or knowingly claims, collects or takes an amount of money or thing of value of greater value than the amount won;

(7) The person knowingly uses chips, electronic media or tokens that are counterfeit to place a wager at a racetrack with West Virginia Lottery table games;

(8) The person knowingly uses any medium to place a wager at a racetrack licensed under this article other than tokens, chips, electronic cards or other electronic media, or other method of credit approved by the commission and issued by the racetrack licensed under this article at which the wager is placed on a West Virginia Lottery table game;

(9) The person, not a licensed racetrack under this article or an employee or agent of a racetrack licensed under this article acting in furtherance of the licensee's interest, has in his or her possession on grounds owned by the racetrack licensed under this article or on grounds contiguous to the licensed racetrack, any device, by whatever name called, intended to be used to violate a provision of this article or a rule of the commission implementing or explaining a provision of this article; or

(10) The person, not a licensee or employee or agent of a licensee acting in furtherance of the racetrack table games 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 a West Virginia Lottery table game, drop box or an electronic or mechanical device connected with or used in connection with a West Virginia Lottery table game in a licensed racetrack or for removing bills, tokens, chips or other contents therefrom.

(d) Any person who violates any provision of subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 and committed to a state correctional facility for not more than six months, except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.

(e) Any person who violates any provision of subsection (c) of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000 and committed to a state correctional facility for a term of imprisonment not less than one year nor more than five years.

(f) With regard to subdivision (3), subsection (c) of this section, each racetrack table games licensee shall post notice of this prohibition and the penalties of this section in a manner determined by the commission.

§29-22C-30. 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 is used for any of the following:

(1) As a bribe intended to affect the outcome of a West Virginia Lottery table game in a licensed racetrack; or

(2) In exchange for, or to facilitate, a violation of this article.

(b) The Legislature finds and declares that the seizure and sale of items under the provisions of this section is not contemplated to be a forfeiture as that term is used in section 5, article XII of the Constitution of West Virginia and, to the extent that a seizure and sale may be found to be such a forfeiture, the Legislature hereby finds and declares that the proceeds from a seizure and sale under this article are not part of net proceeds as it is contemplated by section five, article XII of the Constitution of West Virginia.

(c) If the forfeited property includes the racetrack real property and all of its improvements and related personal property, the commission may take control of and operate the racetrack and all related functions until the forfeited property is sold or is returned to the licensee as a result of due process proceedings.

(d) Subsection (a) of this section does not apply if the act or omission that gives rise to the forfeiture is committed or omitted without the actual or reasonably implied knowledge or consent of the owner of the property to be forfeited.

§29-22C-31. Civil penalties.

(a) The commission may impose on any person who violates the provisions of this article a civil penalty not to exceed $50,000 for each violation, whether or not the person is licensed under this article.

(b) The provisions of article five, chapter twenty-nine-a of this code apply to any civil penalty imposed pursuant to the provisions of this section.

§29-22C-32. Preemption.

No local law or rule providing any penalty, disability, restriction, regulation or prohibition for operating a racetrack with West Virginia Lottery table games or supplying a licensed racetrack may be enacted, and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict with this article.

§29-22C-33. Exemption from federal law.

Pursuant to section 2 of chapter 1194, 64 Stat. 1134, 15 U.S.C. 1172, approved January 2, 1951, the State of West Virginia, acting by and through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from chapter 1194, 64 Stat. 1134, 15 U.S.C. 1171 to 1178.

§29-22C-34. Shipment of gambling devices.

All shipments of gambling devices, including video lottery machines, to licensed racetracks in this state, the registering, recording, and labeling of which have been completed by the manufacturer or dealer thereof in accordance with Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178, are legal shipments of gambling devices into the State of West Virginia.

§29-23-1. Definitions.

As used in this article:

(a) The term "boundary line dispute" means any property line of the state, county or a municipality that is in question as to its specific physical location.

(b) The term "West Virginia Geological and Economic Survey" means that entity established by article two, chapter twenty-nine of this code.

§29-23-2. West Virginia boundary commission created; appointment; terms in office; expenses; powers and duties.

(a) There is hereby created a boundary commission which shall consist of three members, who shall be residents and citizens of the state, all of whom shall have experience involving map reading or surveying. The commission members shall investigate state, county and municipal boundary disputes when requested to do so by the Governor or Legislature. The commission members shall be appointed by the Governor, by and with the advice and consent of the Senate, no later than July 1, 1987. No more than two members may belong to the same political party. The commission members shall serve a term concurrent with that of the Governor's term in office. Commission members may be reappointed to additional terms.

(b) Members shall be reimbursed for reasonable and necessary expenses incurred in fulfilling the duties and responsibilities of the commission.

(c) The commission shall have the authority to:

(1) Establish a boundary line which shall be presumed correct unless proven otherwise in a court of law;

(2) Employ a surveyor or professional engineer licensed in this state to survey such boundary;

(3) Contract for the placement of monuments to identify any boundary line in dispute, such monuments to be handset by a licensed surveyor;

(4) Seek the assistance of the West Virginia geological and economic survey to identify the location of any boundary line in dispute and the recommended placement of marker locations;

(5) Meet with similar commissions or bodies of any of the several states contiguous with this state, whose purpose in their respective states is to establish state boundary lines coterminous with the boundary of the State of West Virginia and submit findings and recommendations to the Legislature, applicable to the location of any particular boundary segment in question;

(6) Recommend to the Legislature that appropriate legislation be enacted, establishing the true boundary line at those portions of the state boundary that are in dispute with another state or whose location is uncertain: Provided, That the contiguous state agrees with the recommendation;

(7) Recommend to the Legislature, where no agreement can be attained with another state as to the actual location of any portion of this state's boundary line, proper legislation to direct that the Attorney General proceed under the Constitution of the United States with litigation to adjudicate the exact and true location of any boundary line in dispute or whose precise location is unascertainable; and

(8) Prepare an annual report to the Legislature and Governor, by the first day of the legislative session, concerning commission activities, recommendations and other necessary information.

§29-23-3. Establishing and marking boundary line between Jefferson County, West Virginia, and Loudoun County, Virginia; effect of certain rights and prosecutions; transmission to members of Congress; effective date.

(a) The boundary line between Jefferson County, West Virginia, and Loudoun County, Virginia, is hereby, on the part of this state, established and declared to be the watershed line of the top of the ridge of the Blue Ridge mountains, as established by the survey approved by the commission on the twenty-ninth day of April, one thousand nine hundred ninety-seven, and to be recorded in the land books in the courthouses of Jefferson County, West Virginia, and Loudoun County, Virginia.

(b) No vested right of any individual, partnership or corporation within the territory affected by this section may in any way be impaired, restricted or affected by this section. This section is not retrospective in its operation and it does not in any way affect the rights of any individual, partnership or corporation in any suit now pending in any of the courts of this state or of the United States wherein the cause of action arose over, or is in any way based upon, the territory affected. This section in no way precludes the State of West Virginia from prosecuting any individual, partnership or corporation for violation of any of the criminal laws of this state within the territory until this section goes into effect.

(c) The Secretary of State shall furnish a certified copy of this section to the Governor of the commonwealth of Virginia and shall also furnish certified copies to the United States senators from the State of West Virginia and to the representative from the second congressional district of West Virginia in the House of Representatives, who are requested to have the section presented to the Congress of the United States.

(d) The commission created by section two of this article is continued and is directed, in cooperation with the like commission created by the commonwealth of Virginia, or other agency designated by the commonwealth of Virginia for the purpose, to complete its work, including: (i) The recordation of the survey in the Jefferson County courthouse not later than April 1, one thousand nine hundred ninety-eight, which survey shall take into account KD Map 25A Parcel 0002 through which the watershed line runs and which includes such residence on the Virginia side of the boundary line; and (ii) the erection of permanent markers designating the boundary line set forth in this section. The markers shall be of the nature and kind the commission considers appropriate.

(e) This section shall take effect upon the adoption and approval by the General Assembly of the commonwealth of Virginia of appropriate legislation ratifying the boundary line set forth herein.

§29-24-1. Legislative findings and declarations.

Individuals with disabilities comprise a significant and increasing percentage of West Virginia's population. The Legislature finds and declares that action is necessary to assist these individuals in their homes, schools, employment and communities to become more independent citizens of the state. Many of these individuals require technology-related devices and technology-related services in order to perform functions, such as caring for themselves, performing manual tasks, mobility, seeing, hearing, speaking, breathing and learning in order to have the ability to more independently participate in society and the work force. In order to meet the present and increasing needs of West Virginians for technology-related devices and technology-related services, it is necessary for the state to provide funds for the technology-related revolving loan fund for individuals with disabilities that neither supplant nor replace existing state, federal or private sector funds.

§29-24-2. Terms defined.

As used in this article, the term:

(a) "Board" means the technology-related assistance revolving loan fund for individuals with disabilities board.

(b) "Individual with disability" means any individual, of any age who, for the purposes of state or federal law, is considered to have a disability or handicap, injuries and chronic health conditions, whether congenital or acquired; and who is or would be enabled by technology-related devices or technology-related services to maintain or improve his or her ability to function in society and the workplace.

(c) "Qualifying borrower" means any individual with disabilities and their family members, guardians, authorized representatives or nonprofit entity who demonstrates that such a loan will improve their independence or become more productive members of the community. The individual must demonstrate credit worthiness and repayment abilities to the satisfaction of the board. No more than twenty percent of all loan funds are to be provided to nonprofit entities in a single year.

(d) "Technology-related assistance" means either the provision of technology-related devices or technology-related services to improve the independence, quality of life or productive involvement in the community of individuals with disabilities.

(e) "Technology-related device" means any item, piece of equipment or product system, whether acquired commercially off-the-shelf, modified or customized, that is used to increase, maintain or improve functional capabilities of individuals with disabilities.

(f) "Technology-related service" means any service that directly assists an individual with a disability in the selection, acquisition or use of a technology-related device, including:

(1) The evaluation of the needs of an individual with a disability, including a functional evaluation in the individual's customary environment;

(2) Purchasing, leasing or otherwise providing for the acquisition of technology-related devices by individuals with disabilities;

(3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing or replacing technology-related devices;

(4) Coordinating and using other therapies, interventions or services with technology-related devices, such as those associated with existing education and rehabilitation plans and programs; and

(5) Training or technical assistance for individuals or the family of an individual with disabilities.

(g) "Revolving loan fund" means the technology-related assistance revolving loan fund for individuals with disabilities established in this article.

(h) "Consumer" means individuals with disabilities and, when appropriate, their family members, guardians, advocates or authorized representatives.

§29-24-3. Board created, membership, terms, officers and staff.

(a) The technology-related assistance revolving loan fund for individuals with disabilities board created by chapter 247 Acts of the Legislature, regular session, 1996, is hereby continued.

(b) The board shall consist of seven members as follows, of whom at least three must be individuals with disabilities:

(1) Director of the Division of Rehabilitation Services, ex officio, who shall be entitled to vote, or his or her designee;

(2) A representative of the banking industry;

(3) A representative of the medical profession;

(4) A certified public accountant; and

(5) Three members from the public at large who are users or providers of technology-related assistance devices or services for individuals with disabilities. Members shall be appointed by the Governor, by and with the advice and consent of the Senate, for terms of three years. Members appointed by the Governor with the advice and consent of the Senate prior to the effective date of this section shall continue to serve for the terms for which they were appointed. State officers or employees may be appointed to the board unless otherwise prohibited by law.

(c) In the event a board member fails to attend more than twenty-five percent of the scheduled meetings in a twelve-month period, the board may, after written notification to that member and the Secretary of Commerce, request in writing that the Governor remove the member and appoint a new member to serve his or her unexpired term.

(d) If there is a death, resignation, disqualification, or removal for any reason of any member of the board, the vacancy shall be filled in the same manner as the original appointment and the successor shall serve for the unexpired term.

(e) The board shall elect from its membership a chairperson, treasurer, and secretary as well as any other officer as appropriate. The term of the “chairperson” is for two years in duration and he or she cannot serve more than two consecutive terms.

§29-24-4. Compensation and expenses of board.

Members of the board who are not employees of the state are entitled to receive a compensation in an amount not to exceed $50 for each day the member of the board is in attendance at a meeting of the board, plus reimbursement for reasonable and necessary expenses actually incurred in the performance of their duties as a member of the board in accordance with state travel regulations. Members with disabilities are also entitled to reimbursement for costs associated with personal assistance, interpreters and disability-related accommodations for the purpose of conducting the business of the board. Compensation, reimbursement and other costs authorized in this section shall be paid from moneys in the revolving loan fund.

§29-24-5. Power, duties and responsibilities of the board; loans.

(a) The board has the following powers, duties, and responsibilities:

(1) Meet at such times (minimum of four times each fiscal year) and at places as it determines necessary or convenient to perform its duties. The board shall also meet on the call of the chairperson or Secretary of Commerce;

(2) Maintain written minutes of its meetings;

(3) Propose rules for legislative promulgation in accordance with §29A-3-1 et seq. of this code for the transaction of its business and to carry out the purposes of this article. The rules shall include: (A) Guidelines, procedures, reporting requirements, accountability measures and such other criteria as the board deems appropriate and necessary to fulfill its governance responsibility under this article if it elects to contract with a nonprofit, consumer-driven organization to carry out the purposes of this article; (B) an appeals process with regard to the administration of the fund; and (C) rules governing the operation of the fund, including, but not limited to, eligibility of receipt of funds and all other matters consistent with and necessary to accomplishing the purpose of this fund;

(4) Employ personnel on a full-time, part-time or contracted basis. Board personnel may be members of the state civil service system. Participating agencies shall make staff support and resources available to the board whenever practicable at the discretion of the agencies. The compensation of personnel shall be paid from moneys in the revolving loan fund;

(5) Receive, administer and disburse funds to support purposes established by this article and contract with nonprofit, consumer-based groups dealing with individuals with disabilities to assist in administering programs established by this article;

(6) Maintain detailed records of all expenditures of the board, funds received as gifts and donations and disbursements made from the revolving loan fund;

(7) Submit to the Secretary of the Department of Commerce and the Legislature annually a summary report concerning programmatic and financial status of the revolving loan fund;

(8) Develop and implement a comprehensive set of financial standards to ensure the integrity and accountability of all funds received as well as loan funds disbursed; and

(9) Conform to the standards and requirements prescribed by the State Auditor.

(b) Subject to available funds, the board shall enter into loan agreements with any qualifying borrower, who demonstrates that:

(1) The loan will assist one or more individuals with disabilities in improving their independence, productivity and full participation in the community; and

(2) The applicant has the ability to repay the loan. Any necessary loan limitation shall be determined by the board. All loans must be repaid within such terms and at such interest rates as the board may determine to be appropriate. However, no loan may extend beyond sixty months from date of award and may be paid off anytime without prepayment penalty. The board shall determine the interest rate to be charged on loans made pursuant to this article, but in no event may the interest rate on any such loans be less than four or more than twenty-one percent per annum.

(c) The board may authorize loans up to ninety percent of the cost of an item or items.

(d) The board may award loans to qualifying borrowers for purposes, including, but not limited to, the following:

(1) To assist one or more individuals with disabilities to improve their independence through the purchase of technology-related devices; and

(2) To assist one or more individuals with disabilities to become more independent members of the community and improve such individuals quality of life within the community through the purchase of technology-related devices.

(e) If there is a failure of the borrower to repay the loan balance due and owing, the board shall seek to recover the loan balance by such legal or administrative action available to it. Persons or representatives of persons who default on a loan are not eligible for a new loan. The board shall retain ownership of all property, equipment, or devices until the borrower’s loan is paid in full.

(f) A new loan may not be issued to, or on behalf of, a disabled person if a previous loan made to, or on behalf of, such person remains unpaid.

(g) The board may charge a fee for loan applications and processing. All funds generated by fee charges shall be directly placed into the revolving loan fund to off-set the costs of application processing.

The board may accept federal funds granted by Congress or executive order for the purposes of this chapter as well as gifts and donations from individuals, private organizations, or foundations. The acceptance and use of federal funds does not commit state funds and does not place an obligation upon the Legislature to continue the purposes for which the federal funds are made available. All funds received in the manner described in this article shall be deposited in the revolving loan fund to be disbursed as other moneys in the revolving loan fund.

§29-24-6. Disbursements.

Loans may be made for amounts ranging from a minimum of $500 to a maximum of $5,000. The loan must be used to purchase technology-related devices or directly related services that will assist the person with a disability to overcome barriers in daily living.

§29-24-7. Fund created.

The technology-related assistance revolving loan fund for individuals with disabilities is hereby created in the State Treasury to be expended by the board in accordance with the provisions of and for the purposes of this article. Upon the effective date of this section, any funds remaining in the technology-related assistance revolving loan fund for individuals with disabilities created by chapter two hundred forty-seven, acts of the Legislature, regular session, one thousand nine hundred ninety-six, which is hereby abolished, shall be deposited into the fund created by this section. Nothing contained herein may be construed to require any level of funding by the Legislature.

§29-24-8. Deposits created by the board.

The board shall deposit all amounts paid, appropriated, granted or donated to it, including interest accrued on loan balances, fees charged and funds received in repayment of loans, in the revolving loan fund.

§29-24-9. Fund use.

The moneys in the revolving loan fund shall be used only for the following purposes:

(a) Implementing revolving loan program for technology-related devices;

(b) Providing technology-related devices to individuals with severe disabilities who meet economic criteria established by the board;

(c) Providing support for technology-related assistance;

(d) Providing technology-related and disability prevention education and research;

(e) Disseminating public information;

(f) Conducting program evaluation and needs assessment;

(g) Operating the board and other administrative and personnel costs;

(h) Conducting research and demonstration projects, including new and future uses of technology-related services; and

(i) Developing a strategic plan.

Administrative costs are not to exceed ten percent of the revolving loan fund's yearly budget.

All unexpended moneys contained in this fund at the end of the fiscal year shall be carried forward from year to year.

§29-25-1. Authorization of limited gaming facility; findings; intent.

(a) Operation of West Virginia Lottery table games. -- Notwithstanding any provision of law to the contrary, the operation of West Virginia Lottery games permitted 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 and article twenty-two-c of this chapter.

(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. It further finds and declares that the authorization of the operation of a gaming facility at no more than one well-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 video lottery operations pursuant to section twenty-eight of this article and the operation of the other West Virginia Lottery table games permitted by this article constitute the operation of lotteries within the purview of section thirty-six, article VI of the Constitution of West Virginia.

(c) Legislative intent. -- It is the intent of the Legislature in the enactment of this article to promote tourism and year-round employment in this state. It is expressly not the intent of the Legislature to promote gaming. As a consequence, it is the intent of the Legislature to allow limited gaming as authorized by this article and article twenty-two-c of this chapter with all moneys gained from the operation of the gaming facility, other than those necessary to reimburse reasonable costs of operation, to inure to the benefit of the state. Further, it is the intent of the Legislature that amendments made to this article during the 2009 regular session will establish appropriate conformity between the operations of video lottery and West Virginia Lottery table games at the licensed gaming facility under this article and the operations of video lottery and table games at the pari-mutuel racetracks licensed under articles twenty-two-a and twenty-two-c of this chapter.

§29-25-2. Definitions.

As used in this article, unless the context otherwise requires, the following words and phrases have meanings indicated:

(a) "Applicant" means any person or entity applying for a license.

(b) "Adjusted gross receipts" means the gross receipts of a gaming facility from West Virginia Lottery table games less winnings paid to wagerers in such games.

(c) "Annual average gross receipts of the pari-mutuel racetracks with table games licenses" means the amount obtained by adding the adjusted gross receipts of all West Virginia pari-mutuel racetracks with table games licenses and then dividing that calculation by the number of West Virginia pari-mutuel racetracks with table games licenses.

(d) "Background investigation" means a security, criminal and credit investigation of an applicant who has applied for the issuance or renewal or a license pursuant to this article or a licensee who holds a current license.

(e) "Controlling interest" means:

(1) For a partnership, an interest as a general or limited partner holding more than five percent interest in the entity;

(2) For a corporation, an interest of more than five percent of the stock in the corporation; and

(3) For any other entity, an ownership interest of more than five percent in the entity.

(f) "Controlling person" means, with respect to another person, any person directly or indirectly owning or holding a controlling interest in that other person.

(g) "Commission" means the State Lottery Commission created in section four, article twenty-two of this chapter.

(h) "Designated gaming area" means one or more specific floor areas of a licensed gaming facility within which the commission has authorized operation of video lottery terminals or West Virginia Lottery table games, or the operation of both video lottery terminals and West Virginia Lottery table games.

(i) "Director" means the Director of the State Lottery Commission.

(j) "Erasable programmable read-only memory chips" or "EPROM" means the electronic storage medium on which the operation software for all games playable on a video lottery terminal resides and can also be in the form of CD ROM, flash ROM or other new technology medium that the commission may from time to time approve for use in video lottery terminals. All electronic storage media are considered to be property of the State of West Virginia.

(k) "Fringe benefits" means sickness and accident benefits and benefits relating to medical and pension coverage.

(l) "Gaming devices and supplies" mean gaming tables for all West Virginia Lottery table games, roulette wheels, wheels of fortune, video lottery terminals, cards, dice, chips, tokens, markers or any other mechanical, electronic or other device, mechanism or equipment or related supplies utilized in the operation of a West Virginia Lottery table game.

(m) "Gaming facility" means a designated area on the premises of an existing historic resort hotel in which West Virginia Lottery table games are conducted by a gaming licensee.

(n) "Gaming licensee" means the licensed operator of a gaming facility.

(o) "Gross receipts" means the total amount of money exchanged for the purchase of chips, tokens or electronic cards by patrons of a gaming facility reduced by gross terminal income to the extent gross terminal income is included in the amount of money exchanged.

(p) "Gross terminal income", as used in this article and as used in article twenty-two-a of this chapter, means the total amount of cash, vouchers or tokens inserted into the video lottery terminals operated by a licensee, minus promotional credits played, and minus the total value of coins and tokens won by a player and game credits which are cleared from the video lottery terminals in exchange for winning redemption tickets.

(q) "Historic resort hotel" means a resort hotel registered with 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.

(r) "Historic Resort Hotel Fund" means the special fund in the State Treasury created in section twenty-two of this article.

(s) "Human Resource Benefit Fund" means the special fund in the State Treasury created in section twenty-two-a of this article.

(t) "Human Resource Benefit Advisory Board" or "board" means the advisory board created in section twenty-two-a of this article.

(u) "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;

(3) A license to be employed in connection with the operation of a gaming facility; or

(4) A license to provide management services under a contract to a gaming facility under this article.

(v) "Licensed gaming facility employee" means any individual licensed to be employed by a gaming licensee in connection with the operation of a gaming facility.

(w) "Licensed gaming facility supplier" means a person who is licensed by the commission to engage in the business of supplying gaming devices and gaming supplies to a gaming facility.

(x) "Licensee" means a gaming licensee, a licensed gaming facility supplier or a licensed gaming facility employee.

(y) "Manufacturer" means any person holding a license granted by the commission to engage in the business of designing, building, constructing, assembling or manufacturing video lottery terminals, the electronic computer components of the video lottery terminals, the random number generator of the video lottery terminals, or the cabinet in which it is housed, and whose product is intended for sale, lease or other assignment to a licensed gaming facility in West Virginia and who contracts directly with the licensee for the sale, lease or other assignment to a licensed gaming facility in West Virginia.

(z) "Net terminal income" means gross terminal income minus an amount deducted by the commission to reimburse the commission for its actual cost of administering video lottery at the licensed gaming facility. No deduction for any or all costs and expenses of a licensee related to the operation of video lottery games shall be deducted from gross terminal income.

(aa) "Person" means any natural person, corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.

(bb)"Premises of an existing historic resort hotel" means the historic resort hotel, attachments of the historic resort hotel, and the traditional, immediate grounds of the historic resort hotel.

(cc) "Promotional credits" means credits given by the licensed gaming facility or licensed racetrack to players allowing limited free play of video lottery terminals in total amounts and under conditions approved in advance by the commission.

(dd) "Video lottery game", as used in this article and as used in article twenty-two-a of this chapter, means a commission-approved, -owned and -controlled electronically simulated game of chance which is displayed on a video lottery terminal and which:

(1) Is connected to the commission's central control computer by an online or dial-up communication system;

(2) Is initiated by a player's insertion of cash, vouchers or tokens into a video lottery terminal, which causes game play credits to be displayed on the video lottery terminal and, with respect to which, each game play credits entitles a player to choose one or more symbols or numbers or to cause the video lottery terminal to randomly select symbols or numbers;

(3) Allows the player to win additional game play credits, coins or tokens based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and the number of free play credits, coins or tokens to be awarded for each winning combination of symbols or numbers or both;

(4) Is based upon a computer-generated random selection of winning combinations based totally or predominantly on chance;

(5) Allows a player at any time to simultaneously clear all game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the video lottery terminal; and

(ee) "Wager" means a sum of money or thing of value risked on an uncertain occurrence.

(ff) "West Virginia Lottery table game" means any game played with cards, dice or any mechanical, electromechanical or electronic device or machine for money, credit or any representative of value, including, but not limited to, baccarat, blackjack, poker, craps, roulette, wheel of fortune or any variation of these games similar in design or operation and expressly authorized by rule of the commission, including multiplayer electronic table games, machines and devices, but excluding video lottery, punchboards, faro, numbers tickets, push cards, jar tickets, pull tabs or similar games.

§29-25-3. Commission duties and powers.

(a) Duties. -- In addition to the duties set forth elsewhere in this article, the commission shall:

(1) Establish minimum standards for gaming devices and supplies, including electronic or mechanical gaming devices;

(2) Approve, modify or reject game rules of play for all West Virginia Lottery table games proposed to be operated by a gaming licensee;

(3) Approve, modify or reject minimum internal control standards proposed by the licensee gaming facility for a West Virginia Lottery table game, 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 the classifications;

(8) Issue all licenses;

(9) Charge and collect the taxes and fees authorized, required or specified in this article:

(i) Receive, accept and pay the specified percentage of taxes collected under sections twenty and twenty-one of this article into the Historic Resort Hotel Fund; and

(ii) Receive, accept and pay the specified percentage of taxes collected under sections twenty and twenty-one of this article into the Human Resource Benefit 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 January 30 of each year and any additional reports as the Governor or Legislature may request.

(b) Powers. -- In addition to the powers set forth elsewhere in this article, the commission has the following powers:

(1) To sue to enforce any provision of this article by injunction;

(2) To hold hearings, administer oaths and issue subpoenas for the attendance of a witness to testify and to produce evidence;

(3) To enter a gaming facility at any time and without notice to ensure strict compliance with the rules of the commission;

(4) To bar, for cause, any person from entering or participating in any capacity in the operation of a gaming facility; and

(5) To exercise such other powers as may be necessary to effectuate the provisions of this article.

§29-25-4. Appointment of commission staff; conditions of employment.

The director, pursuant to the provisions of section six, article twenty-two of this chapter, with the approval of the commission, may appoint any professional, clerical, technical and administrative personnel, who shall be state employees hired in accordance with article six of this chapter, that 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 directly or indirectly hold any financial interest in any entity licensed under this article.

§29-25-5. Rules.

The commission shall propose for promulgation legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as are necessary to provide for implementation and enforcement of the provisions of this article. Any legislative rules proposed by the commission before September 1, 2009, may be by emergency rule.

§29-25-6. Law enforcement.

(a) Generally. -- Notwithstanding any provision of this code to the contrary, the commission shall, by contract or cooperative agreement with the West Virginia State Police, arrange for those law-enforcement services uniquely related to gaming as such occurs at the gaming facility that are necessary to enforce the provisions of this article.

(b) Costs. –– The actual cost of services provided by the West Virginia State Police pursuant to a contract or cooperative agreement entered into pursuant to the provisions of subsection (a) of this section, including, but not limited to, necessary training costs, shall be paid by the commission as an administrative expense.

(c) Notwithstanding any provision of this code to the contrary, the West Virginia State Police shall have exclusive jurisdiction over felony offenses committed on the grounds of the gaming facility.

§29-25-7. Local option.

(a) No gaming facility may be licensed to operate in a county until the county commission of the county holds an election on the question of whether a gaming facility may be operated within the county and the voters approve the operation of a gaming facility in 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.

The county commission of the county in which the proposed facility is located shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.

On the local option election ballot shall be printed the following:

Shall West Virginia Lottery Commission video lottery games and authorized games of chance be permitted within an area at the [name of qualified historic resort hotel]?

[ ] Yes [ ] No

(Place a cross mark in the square opposite your choice.)

Any local option election to approve or disapprove of the proposed authorization of a gaming facility within a county shall be in accordance with procedures 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 votes against allowing a gaming facility, no election on the issue shall be held for a period of one hundred four weeks. If a majority votes "yes" no election reconsidering the action may 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 election shall take place at the next primary or general election scheduled more than ninety days following receipt by the county commission of the petition required by this subsection: Provided, That the issue may not be placed on the ballot until all statutory notice requirements have been met: Provided, however, That no subsequent disapproval may 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 with this article.

(c) Except as specifically provided in this article, no other fees or taxes may be imposed by a local governing body.

§29-25-8. Licenses required.

(a) No person may 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 that 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 with gaming devices, gaming supplies or gaming services;

(3) For any individual employed by a gaming licensee in connection with the operation of a gaming facility in the state; and

(4) For any person providing management services under a contract to a gaming facility.

(c) Any license required under this article is in addition to all other licenses or permits otherwise required by law.

§29-25-9. License to operate a gaming facility.

(a) Single license. -- The commission may issue only one license to operate a gaming facility. If the one license limitation in the preceding sentence is found to be unconstitutional in a final, nonappealable 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 and any license issued under the provisions of this article prior thereto shall be void. 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. -- The applicant shall be the actual operator of the gaming facility to be located on the premises of an existing historic resort hotel. The applicant may be the owner of the existing historic resort hotel or a person that leases well-defined spaces on the premises of the historic resort hotel in order to operate a gaming facility as defined by this article. The resort hotel shall be located within the jurisdiction of a county approving the operation of a gaming facility in accordance with section seven of this article. The applicant shall meet the qualifications and requirements set forth in this article and 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 create at least one hundred full-time equivalent jobs with a salary and benefit package commensurate with existing employees at the historic resort hotel.

(c) Floor plan submission requirement. -- Prior to commencing the operation of any West Virginia Lottery table game in a designated gaming area, the gaming facility licensee shall submit to the commission for its approval a detailed floor plan depicting the location of the designated gaming area in which West Virginia Lottery table game gaming equipment will be located and its proposed arrangement of the West Virginia Lottery table game gaming equipment. If the floor plans for the designated gaming area preserve the historic integrity of the historic resort hotel where the licensed gaming facility is located, then any floor plan submission that satisfies the requirements of the rules promulgated by the commission shall be considered approved by the commission unless a gaming facility is notified in writing to the contrary within one month of filing a detailed floor plan.

(d) Management service contracts. -–

(1) Approval. -- A gaming facility may not enter into any management service contract that would permit any person other than the licensee to act as the commission's agent in operating West Virginia Lottery table game unless the management service contract: (A) Is with a person licensed under this article to provide management services; (B) is in writing; and (C) the contract has been approved by the commission.

(2) Material change. -- A licensed gaming facility shall submit any material change in a management service contract previously approved by the commission to the commission for its approval or rejection before the material change may take effect.

(3) Prohibition on assignment or transfer. -- A management services contract may not be assigned or transferred to a third party.

(4) Other commission approvals and licenses. -- The duties and responsibility of a management services provider under a management services contract may not be assigned, delegated, subcontracted or transferred to a third party to perform without the prior approval of the commission. Third parties shall be licensed under this article before providing service. The commission shall license and require the display of West Virginia Lottery game logos on appropriate game surfaces and other gaming items and locations as the commission considers appropriate.

(e) 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 (g) 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 nonrefundable application fee for deposit into the Community-Based Service Fund created in section twenty-seven, article twenty-two-c of this chapter in the amount of $65,000.

(f) Privately held corporations. -- In the event that an applicant or any controlling person of an applicant is a privately held corporation, then the commission may not grant a license until the commission determines that each person who has control of the applicant also meets all of the qualifications the applicant must meet to hold the license for which application is made. The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation;

(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant; and

(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant's business operation.

(g) 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 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 said act.

(h) Gaming facility qualifications. -- An applicant for a license to operate a gaming facility shall demonstrate that the gaming facility will: (1) Be accessible to disabled individuals; (2) not be located at 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.

(i) Surety bond requirement. -- The licensed gaming facility shall execute a surety bond to be given to the state to guarantee the licensee faithfully makes all payments in accordance with the provisions of this article and rules promulgated by the commission. The surety bond shall be:

(1) In an amount determined by the commission to be adequate to protect the state against nonpayment by the licensee of amounts due the state under this article;

(2) In a form approved by the commission; and

(3) With a surety approved by the commission who is licensed to write surety insurance in this state. The bond shall 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.

(j) 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. A license to operate a gaming facility is not transferable or assignable and cannot be sold or pledged as collateral.

(k) Audits. -– A licensed gaming facility operator shall submit to the commission an annual audit, by a certified public accountant who is, or whose firm is, licensed in the State of West Virginia, or by a nationally recognized accounting firm, of the financial transactions and condition of the licensee's total operations. The audit shall be in accordance with generally accepted auditing principles.

(l) Annual license renewal fee. –- For the second year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee of $250,000. For the third year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee of $500,000. For every year after the third year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee that is calculated by determining the annual average gross receipts of the West Virginia pari-mutuel racetracks with table games licenses for the last full fiscal year of adjusted gross receipts available, and dividing that number into the licensed gaming facility operator's adjusted gross receipts for the same full fiscal year of adjusted gross receipts to obtain a percentage, and by multiplying the resulting percentage by $2,500,000: Provided, That the amount required to be paid by the licensed gaming facility shall be not less than $500,000, nor more than $2,500,000.

(m) The licensed gaming facility shall provide to the commission, at no cost to the commission, suitable office space at the gaming facility to perform the duties required of it by the provisions of this article.

§29-25-10. Reports by licensee.

(a) A gaming licensee shall file with the commission 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 with the commission 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 is 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.

(c) From information provided under this subsection, from the audit described in subsection (j), section nine of this article, and from any other source available to the commission, the commission shall identify the profits made from the operation of the gaming facility and compare the profits to profits made from the operation of facilities of a similar nature in other states. Annually, the commission shall submit a report to the Joint Committee on Government and Finance setting forth the profits made in the operation of the gaming facility in this state and the results of the comparison to profits made in other states. The commission shall include in the report its recommendations for any adjustments in the taxes imposed upon the operation of a gaming facility under the provisions of this article that would be commensurate with the legislative intent to maximize taxes received from the operation of a gaming facility and minimize profits derived by a licensee from the operation of a gaming facility.

§29-25-11. License to supply gaming facility.

(a) Licenses. -- The commission may issue a license to each applicant for a license to supply a gaming facility with gaming devices, gaming supplies or services 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 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 specification. -- 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 including adequate information to serve as a basis for a thorough background check;

(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and

(3) Pay to the commission a nonrefundable application fee in the amount of $100 to be retained by the commission as reimbursement for the licensing process.

(e) 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.

(f) Inventory. -- A licensed gaming facility supplier shall submit to the commission a list of all equipment, gaming devices and supplies sold or delivered to a gaming facility in this state when required by the commission.

(g) Annual license renewal fee. -- A licensed gaming facility supplier shall pay to the commission an annual license renewal fee of $100.

§29-25-12. 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 shall be an individual of good moral character and reputation and have been offered employment by the gaming facility contingent upon licensure pursuant to the provisions of this section. The commission, by rule, may specify additional requirements to be met by applicants based on the specific job classification 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) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and

(3) Pay to the commission a nonrefundable application fee in the amount of $100 to be retained by the commission as reimbursement for the licensing process. This 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 renewal fee. -- Each licensed employee shall pay to the commission an annual license renewal fee set by the commission, which renewal fee may vary based on the capacity designated with respect to the licensee but in no event to exceed $100. The fee may be paid on behalf of the licensed employee by the employer.

§29-25-13. False statements on applications; other license or registration 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 more than $1,000 and confined in jail for not more than six months except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.

(b) The commission may not grant a license or registration pursuant to the provisions of this article if there is substantial evidence that the applicant:

(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 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, a gambling offense, a theft or fraud offense or has otherwise demonstrated, either by a police record or other satisfactory evidence, a lack of respect for law and order: Provided, That the Lottery Commission shall apply §29-25-13(d) and §29-25-13(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license being sought;

(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 such 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 §29-25-17 of this code, 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, bearing a rational nexus to the license, 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: Provided, That the Lottery Commission shall apply §29-25-13(d) and §29-25-13(e) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license being sought.

(d) The Lottery Commission may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the Lottery Commission shall consider at a minimum:

(1) The nature and seriousness of the crime for which the individual was convicted;

(2) The passage of time since the commission of the crime;

(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(4) Any evidence of rehabilitation or treatment undertaken by the individual.

(e) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the Lottery Commission shall permit the applicant to apply for initial licensure if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the Lottery Commission.

(f) An individual with a criminal record who has not previously applied for licensure may petition the Lottery Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the Lottery Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Lottery Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Lottery Commission may charge a fee to recoup its costs for each petition.

(g) Character references may be required of persons licensed, but the character reference may not be obtained from persons in the same or similar occupations or professions in other states.

§29-25-14. 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 considers 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.

§29-25-15. Expiration date and renewal of gaming license.

(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 $25,000 for a license to operate a gaming facility;

(B) The sum of $5,000 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 $300, 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; and

(4) Submits to the commission evidence satisfactory to the commission of the gaming facility operator's compliance with the plan described in subdivision (4), subsection (b), section nine of this article to create at least one hundred full-time equivalent positions with a salary and benefit package commensurate with existing employees at the historic resort hotel. Notwithstanding any provision of subsection (d) of this section, the failure to substantially comply with the plan, as determined by the commission, may constitute grounds for the denial of the renewal of the license.

(d) The commission shall renew the license of each licensee who meets the requirements of this section.

§29-25-16. 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;

(3) Is convicted of a felony under the laws of this state, another state, a territory of the United States or the United States;

(4) Is convicted of a misdemeanor under the laws of this state, another state, the United States or a territory of the United States for gambling or a gambling-related activity; or

(5) Is not complying with this act, the rules or the minimum internal control standards promulgated by the commission or the gaming facility.

(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-seven of this article.

§29-25-17. Hearing procedures.

(a) Right to a hearing. -- Except as otherwise provided by law, before the commission takes any action involving a licensee under the provisions of this article, it shall give the persons against whom the action is contemplated an opportunity for a hearing before the commission.

(b) Notice of hearing and right to counsel. -- The commission shall give notice and hold the hearing in accordance with article five, chapter twenty-nine-a of this code. The notice shall 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.

(c) Failure to comply with subpoena. -- 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.

(d) Appeal. -- Any person aggrieved by a final decision of the commission in a contested case may file a petition for appeal in the circuit court of Kanawha County within thirty days after the person received notice of the final order or decision, as provided in section four, article five, chapter twenty-nine-a of this code.

§29-25-18. Inspection and seizure.

As a condition of licensure, to inspect or investigate for criminal violations of this article or violations of the rule promulgated by the commission, the commission agents and the West Virginia State Police may each, without notice and without warrant:

(1) Inspect and examine all premises of the gaming facility with West Virginia Lottery table games, gaming devices, the premises where gaming equipment is manufactured, sold, distributed or serviced or any premises in which any records of the activities are prepared or maintained;

(2) Inspect any gaming equipment in, about, upon or around the premises of a gaming facility with West Virginia Lottery table games;

(3) Seize summarily and remove from the premises and impound any gaming equipment for the purposes of examination, inspection or testing;

(4) Inspect, examine and audit all books, records and documents pertaining to a gaming facility licensee's operation;

(5) Summarily seize, impound or assume physical control of any book, record, ledger, West Virginia Lottery table game, gaming equipment or device, cash box and its contents, counting room or its equipment or West Virginia Lottery table game operations; and

(6) Inspect the person, and the person's personal effects present on the grounds of a licensed gaming facility with West Virginia Lottery table games, of any holder of a license issued pursuant to this article while that person is present on the grounds of a licensed gaming facility having West Virginia Lottery table games.

§29-25-19. Consent to presence of law-enforcement officers; wagering limits; operations and services; posting of betting limits.

(a) Consent to presence of law-enforcement officers. -- Any individual entering the 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) Commission discretion in gaming operations. –– Video lottery terminals operated at the gaming facility may allow minimum and maximum wagers on a single game the amounts determined by the license in the exercise of its business judgment subject to the approval of the commission.

(1) Subject to the approval of the commission, the gaming facility licensee shall, with respect to West Virginia Lottery table games, establish the following:

(A) Maximum and minimum wagers;

(B) Advertising and promotional activities;

(C) Hours of operation;

(D) The days during which games may be played; and

(2) The commission may consider multiple factors, including, but not limited to, industry standards, outside competition and any other factors as determined by the commission to be relevant in its decision to approve the gaming facility's determination of those items listed in subdivision (1) of this subsection.

(c) Setting of operations. -– Notwithstanding anything to the contrary contained elsewhere in this chapter, the commission may establish the following parameters for commission regulated lottery games of any kind which is played at a licensed gaming facility:

(1) Minimum and maximum payout percentages;

(2) Any probability limits of obtaining the maximum payout for a particular play; and

(3) Limitations on the types and amounts of financial transactions, including extension of credit to a patron, which a gaming facility can enter into with its patrons.

(d) Posting of betting limits. -- A gaming facility shall conspicuously post a sign at each West Virginia Lottery table game indicating the permissible minimum and maximum wagers pertaining at that table. A gaming facility licensee may not require any wager to be greater than the stated minimum or less than the stated maximum. However, any wager actually made by a patron and not rejected by a gaming facility licensee prior to the commencement of play shall be treated as a valid wager.

§29-25-20. Accounting and reporting of gross terminal income; distribution.

The licensed gaming facility shall submit thirty-six percent of the gross terminal income from video lottery games at the licensed gaming facility to the commission through electronic funds transfer to be deposited into the Historic Resort Hotel Fund created in section twenty-two of this article. The licensed gaming facility shall also submit seventeen percent of the gross terminal income from video lottery games at the licensed gaming facility to the commission through electronic funds transfer to be deposited into the Human Resource Benefit Fund created in section twenty-two-a of this article. Each of these submissions shall be made to the commission weekly. The gaming licensee shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. The gaming licensee shall provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds.

§29-25-21. Taxes on games other than video lottery games.

(a) Imposition and rate of limited gaming profits tax. -- There is hereby levied and shall be collected a privilege tax against a gaming license in an amount to be determined by the application of the rate against adjusted gross receipts of the licensed gaming facility. The rate of tax is thirty-five percent. Of that thirty-five percent, thirty percent shall be directly deposited by the commission into the Historic Resort Hotel Fund created in section twenty-two of this article and the remaining five percent shall be directly deposited by the commission into the Human Resource Benefit Fund created in section twenty-two-a of this article. For purposes of calculating the amount of tax due under this section, the licensee shall use the accrual method of accounting. This tax is 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 may not apply to the proceeds from any wagering with respect to a West Virginia Lottery table game pursuant to this article.

(b) Computation and payment of tax. -- The taxes levied under the provisions of this section are due and payable to the commission in weekly installments on or before the Wednesday of each week. The taxpayer shall, on or before the Wednesday of each week, make out and submit by electronic communication to the commission a return for the preceding week, in the form prescribed by the commission, 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 accordance with sections twenty-two and twenty-two-a of this article. Payments due to the commission under this section and payments due to the commission under section twenty of this article shall be sent simultaneously.

(c) Negative adjusted gross receipts. -- When adjusted gross receipts for a week is a negative number because the winnings paid to patrons wagering on the gaming facility's West Virginia Lottery table games exceeds the gaming facility's gross receipts from the purchase of table game tokens, chips or electronic media by patrons, the commission shall allow the licensee to, pursuant to rules of the commission, carry over the negative amount of adjusted gross receipts to returns filed for subsequent weeks. The negative amount of adjusted gross receipts may not be carried back to an earlier week and the commission is not required to refund any tax received by the commission, except when the licensee surrenders its license to act as agent of the commission in operating West Virginia Lottery table game under this article and the licensee's last return filed under this section shows negative adjusted gross receipts. In that case, the commission shall multiply the amount of negative adjusted gross receipts by the applicable rate of tax and pay the amount to the licensee, in accordance with rules of the commission.

(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. Notwithstanding any other provision of this code to the contrary, the tax imposed by this section may not be added to federal taxable income in determining West Virginia taxable income of a taxpayer for purposes of article twenty-four, chapter eleven of this code.

(e) Tax imposed by this section is in lieu of other taxes. --

(1) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all other state taxes and fees imposed on the operation of, or the proceeds from operation of West Virginia Lottery table games, except as otherwise provided in this section. The consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code shall not apply to the licensee's gross receipts from any wagering on a West Virginia Lottery table game pursuant to this article or to the licensee's purchasing of gaming equipment, supplies or services directly used in operation of a West Virginia Lottery table games authorized by this article. These purchases are also exempt from the use tax imposed by article fifteen-a, chapter eleven of this code.

(2) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all local taxes and fees levied on or imposed with respect to the privilege of offering a West Virginia Lottery table game to the public, including, but not limited to, the municipal business and occupation taxes and amusement taxes authorized by article thirteen, chapter eight of this code and the municipal sales and service tax and use tax authorized by article thirteen-c of said chapter.

§29-25-22. Historic Resort Hotel Fund; allocation of adjusted gross receipts; disposition of license fees.

(a) There is hereby created a special fund in the State Treasury which shall be designated and known as the Historic Resort Hotel Fund. Thirty-six percent of the gross terminal income received by the commission under section twenty of this article and thirty percent of the adjusted gross receipts received by the commission under section twenty-one of this article shall be deposited with the State Treasurer and placed in the Historic Resort Hotel Fund. The fund shall be an interest-bearing account with interest to be credited to and deposited in the Historic Resort Hotel Fund.

(b) All expenses of the commission shall be paid from the Historic Resort Hotel Fund, including reimbursement of the State Police for activities performed at the request of the commission in connection with background investigations or enforcement activities pursuant to this article. At no time may the commission's expenses under this article 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 Historic Resort Hotel Fund.

(c) An Historic Resort Hotel Modernization Fund is hereby created within the Historic Resort Hotel Fund. For all fiscal years beginning on or after July 1, 2011, the commission shall deduct two and one-half percent from gross terminal income received by the commission under section twenty of this article for the fiscal year and deposit these amounts into a separate facility modernization account maintained within the Historic Resort Hotel Modernization Fund for each historic resort hotel. For each dollar expended by a historic resort hotel for video lottery or table gaming facility modernization improvements at the historic resort hotel, having a useful life of three or more years and placed in service after April 1, 2011, the historic resort hotel shall receive $1 in recoupment from its facility modernization account. For purposes of this section, the term "video lottery or table gaming facility modernization improvements" include acquisition of computer hardware and software, communications and Internet access equipment, security and surveillance equipment, video lottery terminals and other electronic equipment or other equipment designed to modernize the facility.

(d) The balance of the Historic Resort Hotel Fund shall become net income and shall be divided as follows:

(1) Sixty-four percent of the Historic Resort Hotel Fund net income shall be paid into the General Revenue Fund to be appropriated by the Legislature;

(2) Nineteen percent of the Historic Resort Hotel Fund net income shall be paid into the State Debt Reduction Fund established in section twenty-seven, article twenty-two-c of this chapter to be appropriated by the Legislature;

(3) The Tourism Promotion Fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the Historic Resort Hotel Fund net income;

(4) The county where the gaming facility is located shall receive four percent of the Historic Resort Hotel Fund net income;

(5) The municipality where the gaming facility is located or the municipality closest to the gaming facility by paved road access as of the effective date of the reenactment of this section by the 2009 regular session of the Legislature shall receive two and one-half percent of the Historic Resort Hotel Fund net income;

(6) The municipalities within the county where the gaming facility is located, except for the municipality receiving funds under subdivision (5) of this subsection, shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income;

(7) Each county commission in the state that is not eligible to receive a distribution under subdivision (4) of this subsection shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income: Provided, That funds transferred to the county commission under this subdivision shall be used only to pay regional jail expenses and the costs of infrastructure improvements and other capital improvements; and

(8) The governing body of each municipality in the state that is not eligible to receive a distribution under subdivisions (5) and (6) of this subsection shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income: Provided, That funds transferred to municipalities under this subdivision shall be used only to pay for debt reduction in municipal police and fire pension funds and the costs of infrastructure improvements and other capital improvements.

(e) Notwithstanding any provision of this article to the contrary, all limited gaming facility license fees and license renewal fees received by the commission pursuant to section nine of this article shall be deposited into the Community-Based Service Fund created in section twenty-seven, article twenty-two-c of this chapter.

(f) With the exception of the license fees and license renewal fees received by the commission pursuant to section nine of this article, all revenues received from licensees and license applicants under this article shall be retained by the commission as reimbursement for the licensing process.

§29-25-22a. Human Resource Benefit Fund.

(a) There is hereby created a special fund in the State Treasury which shall be designated and known as the Human Resource Benefit Fund. Seventeen percent of the gross terminal income received by the commission under section twenty of this article and five percent of the adjusted gross receipts received by the commission under section twenty-one of this article shall be deposited with the State Treasurer and placed in the Human Resource Benefit Fund. The fund shall be an interest-bearing account with interest to be credited to and deposited in the Human Resource Benefit Fund.

(b) For each dollar expended by the historic resort hotel for fringe benefits for the employees of the historic resort hotel, the commission shall transfer to the historic resort hotel $1 of recoupment from the Human Resource Benefit Fund: Provided, That the historic resort hotel is not entitled to recoupment for money spent on fringe benefits beyond the amount of money available to be expended from the Human Resource Benefit Fund at the time the request for recoupment is made by the historic resort hotel.

(c) The commission shall have full rights and powers to audit the spending of money from the Human Resource Benefit Fund to ensure that the money is being used in the manner prescribed under this section. The commission shall have the power and authority to audit as frequently as it sees fit, so long as it conducts at least two audits each fiscal year.

(d) There is hereby created the Human Resource Benefit Advisory Board, which shall meet every six months to verify the commission's audit.

(1) The board shall consist of five members, all residents and citizens of the State of West Virginia:

(A) One member shall be a representative of the collective bargaining unit that represents a majority of the employees of the historic resort hotel;

(B) One member shall be a representative of the historic resort hotel; and

(C) Three members shall be employees of the commission.

(2) The members shall be appointed or elected by the entity or persons that they represent. Establishment of terms for members shall be determined by the entity or persons that they represent, if the entity or persons choose to set terms.

(3) A majority of members constitutes a quorum for the transaction of business.

(4) The board shall meet every six months at the headquarters of the commission. Upon its own motion or upon the request of the commission, it may hold meetings in addition to the required meetings. The commission shall pay the travel expenses of members of the board who are not employed by the commission.

(5) All meetings of the board shall be open to the public.

(6) The board shall operate in an advisory capacity. Its functions shall include, but are not limited to, reviewing and verifying financial audits of the Human Resource Benefit Fund conducted by the commission and its employees and reviewing source documents associated with disbursements from the Human Resource Benefit Fund.

(7) Within thirty days of any board meeting, the board shall report to the commission its findings and any recommendations it may have. The report to the commission shall be made at a commission meeting that is open to the public.

(e) In the event that an audit conducted by the commission, or suggested changes to the audit submitted by the board and adopted by the commission, reveals that the historic resort hotel has acted improperly or negligently in its claim for money from the Human Resource Benefit Fund, the commission may impose a civil penalty against the historic resort hotel of up to one hundred percent of the improperly claimed amount. Any civil penalty imposed on the historic resort hotel by the commission under this subsection shall be deposited by the commission into the Historic Resort Hotel Fund.

§29-25-22b. Changes in distribution of adjusted gross receipts and additional income; distributions from excess lottery fund.

(a) Notwithstanding any provision of section twenty-two of this article to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, after payment of the commission's expenses pursuant to subsection (b), section twenty-two of this article, each distribution made in subsection (c), section twenty-two of this article from gross terminal income, and each distribution of the balance of the Historic Resort Hotel Fund made in subsection (d), section twenty-two of this article, except subdivisions (4), (5) (6), (7) and (8) of that subsection, shall be reduced by one hundred percent. Payments shall not be made pursuant to section twenty-two of this article, other than those excepted by this subsection, and are made in lieu thereof in an amount to be determined by appropriation from the State Excess Lottery Revenue Fund.

(b) The total amount of reductions resulting from subsection (a) of this section shall be paid into the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter.

(c) Notwithstanding any other provision of this code to the contrary, for the fiscal year beginning July 1, 2014, and each fiscal year thereafter, moneys deposited to the State Excess Lottery Revenue Fund pursuant to this section shall be expended by the Lottery in accordance with appropriations.

(d) Prior to payment of any appropriation made pursuant to this section, debt service payments payable from the State Excess Lottery Fund shall first be paid in accordance with the provisions of section eighteen-a, eighteen-d and eighteen-e, article twenty-two of this chapter and in the priority as defined by subsection (c), section eighteen-f, article twenty-two of this chapter.

(e) Notwithstanding any other provision of this code to the contrary, after payment of debt service from the State Excess Lottery Revenue Fund, all other distributions required by section eighteen-a, article twenty-two of this chapter and the distributions appropriated pursuant to this section shall be paid on a pro rata basis.

§29-25-23. Prohibition on unauthorized wagering; complimentary service, gift, cash or other item.

(a) A gaming licensee may not permit any form of wagering except as authorized under this article or article twenty-two, twenty-two-a or twenty-two-c of this chapter.

(b) A gaming licensee may receive wagers only from an individual present in a licensed gaming facility.

(c) All gaming facility operations shall utilize a cashless wagering system whereby all players' money is converted to tokens, paper vouchers, electronic cards or chips at the request of the wagerer which can only be used for wagering in a licensed gaming facility and wagering may not be conducted with money or other negotiable currency:

(1) Wagering on West Virginia Lottery table games may not be conducted with money or other negotiable currency or with tokens, electronic cards or other electronic media or chips not issued by the gaming facility where the West Virginia Lottery table game will be played.

(2) At the request of the player, the licensee shall convert a player's tokens, electronic cards or other electronic media or chips back to money.

(3) The licensee may not charge a fee for converting a player's money to an acceptable media for playing a West Virginia Lottery table game or charge a fee for converting the acceptable media for wagering a West Virginia Lottery table game back to money.

(d) The gaming licensee is prohibited from offering any complimentary service, gift, cash or other item of value to any person unless:

(1) The complimentary consists of room, food, beverage or entertainment expenses provided directly to the patron and his or her guests by the gaming facility licensee or indirectly to the patron and his or her guests on behalf of the licensee by a third party;

(2) The complimentary consists of documented transportation expenses provided directly to the patron and his or her guests on behalf of a gaming facility licensee by a third party: Provided, That the licensee complies with the rules promulgated by the commission to ensure that a patron's and his or her guests' documented transportation expenses are paid for or reimbursed only once; or

(3) The complimentary consists of coins, tokens, cash or other complimentary items or services provided through any complimentary distribution program, the terms of which shall be filed with the commission upon implementation of the program or maintained pursuant to commission rule. Any change in the terms of a complimentary program shall be filed with the commission upon implementation of the change.

(e) Notwithstanding any provision of subsection (d) of this section to the contrary, a gaming facility licensee may offer and provide complimentary cash or noncash gifts that are not otherwise included in that subsection to any person: Provided, That any complimentary cash or noncash gifts in excess of an amount per trip to be set by interpretive rule of the commission are supported by documentation regarding the reason the gift was provided to the patron and his or her guests, including, where applicable, a patron's player rating. The documentation shall be maintained by a gaming facility licensee in accordance with commission rules. For purposes of this subsection, all gifts presented to a patron and a patron's guests directly by the gaming facility licensee or indirectly on behalf of the licensee by a third party within any five-day period shall be considered to have been made during a single trip.

§29-25-24. Individual gaming restrictions.

(a) An individual may enter a designated gaming area or remain in a designated gaming area only if the individual:

(1) Is either;

(A) A registered overnight guest at the historic resort hotel on whose premises the gaming facility is located;

(B) A person who is a not a registered overnight guest, but is a registered participant at a convention or event being held at the historic resort hotel: Provided, That this paragraph does not apply on any calendar day when less than four hundred guest rooms are occupied at the historic resort hotel; or

(C) A member of a homeowner or facility association that entitles members to substantial privileges at the historic resort hotel on whose premises the gaming facility is located or an overnight guest of such a member: Provided, That the association was in existence as of April 1, 2009;

(2) Is at least twenty-one years of age;

(3) Is not visibly intoxicated;

(4) Has not been 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; and

(5) Has not been barred by the commission from entering a gaming facility.

(b) Notwithstanding any provisions of this code to the contrary, no employee of the commission or any member of his or her immediate household may wager at the gaming facility, and no licensed limited gaming facility employee may wager on any table game at the limited gaming facility.

§29-25-25. Offenses and penalties.

(a) A gaming licensee is guilty of unlawful operation of a West Virginia Lottery table game when:

(1) The licensee operates a West Virginia Lottery table game or places a video lottery game or video lottery terminal in any location that is not a designated gaming area approved by the commission;

(2) The licensee acts or employs another person to act as if he or she is not an agent or employee of the licensee in order to encourage participation in a West Virginia Lottery table game 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 designated gaming area or to play video lottery terminals or West Virginia Lottery table game at a licensed gaming facility;

(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 or credits to a player's account;

(5) The licensee operates a West Virginia Lottery table game or places a video lottery game or video lottery terminal into play without authority of the commission to do so;

(6) The licensee knowingly conducts, carries on, operates or exposes for play or allows to be conducted, carried on, operated or exposed for play any West Virginia Lottery table game, video lottery game, video lottery terminal or other device, equipment or material that has in any manner been tampered with or placed in a condition or operated in a manner, the result of which is designed to deceive the public; or

(7) The licensee employs an individual in a position or to perform duties, for which a license is required by this article or rules of the commission and the employee does not have a license issued under the provisions of this article or the licensee continues to employ the individual in a position or to perform duties, for which a license is required by this article or rules of the commission, after the employee's license expired, was revoked by the commission or not renewed by the commission.

(b) A person is guilty of a misdemeanor when:

(1) The person operates, carries on or exposes for play a West Virginia Lottery table game prior to obtaining a license or after the person's license has expired and prior to actual renewal of the license or before the West Virginia Lottery table game and the licensee's rules for play for the game are approved or modified and approved by the commission;

(2) The person works or is employed in a position requiring a license under the provisions of this article without having the license required by this article;

(3) A licensee who possesses any video lottery terminal or other device, equipment or material which the person knows has been manufactured, distributed, sold, tampered with or serviced in violation of the provisions of this article; or

(4) A licensee who knowingly conducts, carries on, operates or exposes for play, or allows to be conducted, carried on, operated or exposed for play any video lottery game, video lottery terminal, or other device, equipment or material which has in any manner been tampered with, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal random selection of characteristics or the normal chance of the video lottery game.

(c) A person is guilty of a felony when:

(1) The person offers, promises or gives anything of value or benefit to a person who has an ownership or financial interest in, is employed by or has a service contract with a gaming facility or to that person's spouse or any dependent child or dependent parent, pursuant to an agreement or arrangement, in fact or implied from the circumstances, with intent that the promise or thing of value or benefit will influence the actions of the person in order to affect or attempt to affect the outcome of a West Virginia Lottery table game or to influence official action of the commission. For the purposes of this subdivision and subdivision (2) of this subsection, the term "person who is connected with a gaming facility" includes, but is not limited to, a person licensed under this article as well as 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 a West Virginia Lottery table game or to influence official action of the commission;

(3) The person uses or possesses on property owned by the licensed gaming facility or on property contiguous to the gaming facility, with the intent to use, an electronic, electrical or mechanical device that is designed, constructed or programmed to assist the user or another person:

(A) In projecting the outcome of a West Virginia Lottery table game;

(B) In keeping track of cards dealt or in play;

(C) In analyzing the probability of the occurrence of an event relating to a West Virginia Lottery table game;

(D) In analyzing the strategy for playing or betting to be used in a West Virginia Lottery table game, except as permitted in writing by the commission; or

(E) In obtaining an advantage at playing any West Virginia Lottery table game at a licensed gaming facility authorized under this article to operate a West Virginia Lottery table game;

(4) The person cheats at a West Virginia Lottery table game in a gaming facility;

(5) The person manufacturers, sells, or distributed any cards, chips, dice, game or device which is intended to be used to violate any provision of this article or the table gaming laws of any other state;

(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 the article;

(7) The person places a bet after acquiring knowledge, not available to all players, of the outcome of the West Virginia Lottery table game which is the 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 West Virginia Lottery table game, or claims, collects or takes an amount of money or thing of value or greater value than the amount won;

(9) The person knowingly uses chips, electronic media or tokens that are counterfeit 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 facility licensed under this article acting in furtherance of the gaming licensee's interests, has in his or her possession on grounds owned by the gaming facility licensed under this article or on grounds contiguous to the gaming facility, any device, by whatever name called, intended to be used to violate a provision of this article or a rule of the commission implementing or explaining 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 a West Virginia Lottery table game, drop box or an electronic or mechanical device connected with or used in connection with a West Virginia Lottery table game in a gaming facility or for removing coins, tokens, chips or other contents therefrom.

(d) Any person who violates the provisions of subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 and confined in jail for not more than six months, except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.

(e) Any person who violates the provisions of subsection (c) of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000 and committed to a state correctional facility for a term of imprisonment of not less than one year nor more than five years.

(f) With regard to subdivision (3), subsection (c) of this section, the gaming facility licensee shall post notice of this prohibition and the penalties of this section in a manner determined by the commission.

§29-25-26. 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 a West Virginia Lottery table game in a gaming facility; or

(2) In exchange for or to facilitate a violation of this article.

(b) The Legislature finds and declares that the seizure and sale of items under the provisions of this section is not contemplated to be a forfeiture as that term is used in section five, article XII of the Constitution of West Virginia and, to the extent that a seizure and sale may be found to be a forfeiture, the Legislature hereby finds and declares that the proceeds from a seizure and sale under this article are not part of net proceeds as it is contemplated by section five, article XII of the Constitution of West Virginia.

(c) 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.

§29-25-27. Civil penalties.

The commission may impose on a person who violates the provisions of this article a civil penalty not to exceed $10,000 for each violation, whether or not the person is licensed under this article.

The provisions of article five, chapter twenty-nine-a of this code shall apply to any civil penalty imposed pursuant to the provisions of this section.

§29-25-28. Specific provision for video lottery games.

The commission is authorized to implement and operate video lottery games at one gaming facility in this state in accordance with the provisions of this article and the applicable provisions of article twenty-two-a of this chapter. The provisions of said article apply to this article, except in the event of conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two-a of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two-a of this chapter.

§29-25-29. Video lottery terminal requirements; application for approval of video lottery terminals; testing of video lottery terminals; report of test results; modifications to previously approved models; conformity to prototype; seizure and destruction of terminals.

(a) Video lottery terminals registered with and approved by the commission for use at the gaming facility may offer video lottery games regulated, controlled, owned and operated by the commission in accordance with the provisions of this section and utilizing specific game rules.

(b) A manufacturer may not sell or lease a video lottery terminal for placement at the gaming facility unless the terminal has been approved by the commission. Only manufacturers with licenses may apply for approval of a video lottery terminal or associated equipment. The manufacturer shall submit two copies of terminal illustrations, schematics, block diagrams, circuit analysis, technical and operation manuals and any other information requested by the commission for the purpose of analyzing and testing the video lottery terminal or associated equipment.

(c) The commission may require that two working models of a video lottery terminal be transported to the location designated by the commission for testing, examination and analysis.

(1) The manufacturer shall pay all costs of testing, examination, analysis and transportation of such video lottery terminal models. The testing, examination and analysis of any video lottery terminal model may require dismantling of the terminal and some tests may result in damage or destruction to one or more electronic components of such terminal model. The commission may require that the manufacturer provide specialized equipment or pay for the services of an independent technical expert to test the terminal.

(2) The manufacturer shall pay the cost of transportation of two video lottery terminals to lottery headquarters. The commission shall conduct an acceptance test to determine terminal functions and central system compatibility. If the video lottery terminal fails the acceptance test conducted by the commission, the manufacturer shall make all modifications required by the commission.

(d) After each test has been completed, the commission shall provide the terminal manufacturer with a report containing findings, conclusions and pass/fail results. The report may contain recommendations for video lottery terminal modification to bring the terminal into compliance with the provisions of this article. Prior to approving a particular terminal model, the commission may require a trial period not to exceed sixty days for a licensed gaming facility to test the terminal. During the trial period, the manufacturer may not make any modifications to the terminal model unless modifications are approved by the commission.

(e) The video lottery terminal manufacturer and licensed gaming facility are jointly responsible for the assembly and installation of all video lottery terminals and associated equipment. The manufacturer and licensed gaming facility shall not change the assembly or operational functions of a terminal licensed for placement in West Virginia unless a request for modification of an existing video terminal prototype is approved by the commission. The request shall contain a detailed description of the type of change, the reasons for the change and technical documentation of the change.

(f) Each video lottery terminal approved for placement at the gaming facility shall conform to the exact specifications of the video lottery terminal prototype tested and approved by the commission. If any video lottery terminal or any video lottery terminal modification, which has not been approved by the commission, is supplied by a manufacturer and operated by the gaming facility, the commission shall seize and destroy all of that licensed gaming facility's and manufacturer's noncomplying video lottery terminals and shall suspend the license and permit of the licensed gaming facility and manufacturer.

§29-25-30. Video lottery terminal hardware and software requirements; hardware specifications; software requirements for randomness testing; software requirements for percentage payout; software requirements for continuation of video lottery game after malfunction; software requirements for play transaction records.

(a) The commission may approve video lottery terminals and in doing so shall take into account advancements in computer technology, competition from nearby states and the preservation of jobs at the historic resort hotel. In approving video lottery terminals licensed for placement in this state the commission shall insure that the terminals meet the following hardware specifications:

(1) Electrical and mechanical parts and design principles may not subject a player to physical hazards or injury.

(2) A surge protector shall be installed on the electrical power supply line to each video lottery terminal. A battery or equivalent power back-up for the electronic meters shall be capable of maintaining accuracy of all accounting records and terminal status reports for a period of one hundred eighty days after power is disconnected from the terminal. The power back-up device shall be located within the locked logic board compartment of the video lottery terminal.

(3) An on/off switch which controls the electrical current used in the operation of the terminal shall be located in an accessible place within the interior of the video lottery terminal.

(4) The operation of each video lottery terminal may not be adversely affected by any static discharge or other electromagnetic interference.

(5) A bill or voucher acceptor or other means accurately and efficiently to establish credits shall be installed on each video lottery terminal. All acceptors shall be approved by the commission prior to use on any video lottery terminal in this state.

(6) Access to the interior of video lottery terminal shall be controlled through a series of locks and seals.

(7) The main logic boards and all erasable programmable read-only memory chips ("EPROMS") are considered to be owned by the commission and shall be located in a separate locked and sealed area within the video lottery terminal.

(8) The cash compartment shall be located in a separate locked area within or attached to the video lottery terminal.

(9) No hardware switches, jumpers, wire posts or any other means of manipulation may be installed which alter the pay tables or payout percentages in the operation of a game. Hardware switches on a video lottery terminal to control the terminal's graphic routines, speed of play, sound and other purely cosmetic features may be approved by the commission.

(10) Each video lottery terminal shall contain a single printing mechanism capable of printing an original ticket and capturing and retaining an electronic copy of the ticket data as approved by the commission: Provided, That the printing mechanism is optional on any video lottery terminal which is designed and equipped exclusively for coin or token payouts. The following information shall be recorded on the ticket when credits accrued on a video lottery terminal are redeemed for cash:

(i) The number of credits accrued;

(ii) Value of the credits in dollars and cents displayed in both numeric and written form;

(iii) Time of day and date;

(iv) Validation number; and

(v) Any other information required by the commission.

(11) A permanently installed and affixed identification plate shall appear on the exterior of each video lottery terminal and the following information shall be on the plate:

(i) Manufacturer of the video lottery terminal;

(ii) Serial number of the terminal; and

(iii) Model number of the terminal.

(12) The rules of play for each game shall be displayed on the video lottery terminal face or screen. The commission may reject any rules of play which are incomplete, confusing, misleading or inconsistent with game rules approved by the commission. For each video lottery game, there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of numbers or symbols. All information required by this subdivision shall be displayed under glass or another transparent substance. No stickers or other removable devices may be placed on the video lottery terminal screen or face without the prior approval of the commission.

(13) Communication equipment and devices shall be installed to enable each video lottery terminal to communicate with the commission's central computer system by use of a communications protocol provided by the commission to each permitted manufacturer, which protocol shall include information retrieval and terminal activation and disable programs, and the commission may require each licensed racetrack to pay the cost of a central site computer as a part of the licensing requirement.

(14) All video lottery terminals shall have a security system which temporarily disables the gaming function of the terminal while opened.

(b) Each video lottery terminal shall have a random number generator to determine randomly the occurrence of each specific symbol or number used in video lottery games. A selection process is random if it meets the following statistical criteria:

(1) Chi-square test. -- Each symbol or number shall satisfy the ninety-nine percent confidence limit using the standard chi-square statistical analysis of the difference between the expected result and the observed result.

(2) Runs test. -- Each symbol or number may not produce a significant statistic with regard to producing patterns of occurrences. Each symbol or number is random if it meets the ninety-nine percent confidence level with regard to the "runs test" for the existence of recurring patterns within a set of data.

(3) Correlation test. -- Each pair of symbols or numbers is random if it meets the ninety-nine percent confidence level using standard correlation analysis to determine whether each symbol or number is independently chosen without regard to another symbol or number within a single game play.

(4) Serial correlation test. -- Each symbol or number is random if it meets the ninety-nine percent confidence level using standard serial correlation analysis to determine whether each symbol or number is independently chosen without reference to the same symbol or number in a previous game.

(c) Each video lottery terminal shall pay out no less than eighty percent and no more than ninety-nine percent of the amount wagered. The theoretical payout percentage will be determined using standard methods of probability theory.

(d) Each video lottery terminal shall be capable of continuing the current game with all current game features after a video lottery terminal malfunction is cleared. If a video lottery terminal is rendered totally inoperable during game play, the current wager and all credits appearing on the video lottery terminal screen prior to the malfunction shall be returned to the player.

(e) Each video lottery terminal shall at all times maintain electronic accounting regardless of whether the terminal is being supplied with electrical power. Each meter shall be capable of maintaining a total of no less than eight digits in length for each type of data required. The electronic meters shall record the following information:

(1) Number of coins inserted by players or the coin equivalent if a bill acceptor is being used or tokens or vouchers are used;

(2) Number of credits wagered;

(3) Number of total credits, coins and tokens won;

(4) Number of credits paid out by a printed ticket;

(5) Number of coins or tokens won, if applicable;

(6) Number of times the logic area was accessed;

(7) Number of times the cash door was accessed;

(8) Number of credits wagered in the current game;

(9) Number of credits won in the last complete video lottery game; and

(10) Number of cumulative credits representing money inserted by a player and credits for video lottery games won, but not collected.

(f) No video lottery terminal may have any mechanism which allows the electronic accounting meters to clear automatically. Electronic accounting meters may not be cleared without the prior approval of the commission. Both before and after any electronic accounting meter is cleared, all meter readings shall be recorded in the presence of a commission employee.

(g) The primary responsibility for the control and regulation of any video lottery games and video lottery terminals operated pursuant to this article rests with the commission.

(h) The commission shall directly or through a contract with a third party vendor other than the video lottery licensee, maintain a central site system of monitoring the lottery terminals, utilizing an online or dial-up inquiry. The central site system shall be capable of monitoring the operation of each video lottery game or video lottery terminal operating pursuant to this article and, at the direction of the director, immediately disable and cause not to operate any video lottery game and video lottery terminal. As provided in this section, the commission may require the licensed racetrack to pay the cost of a central site computer as part of the licensing requirement.

§29-25-31. The specific video lottery duties required of the gaming facility.

The gaming facility licensee shall:

(a) Acquire video lottery terminals by purchase, lease or other assignment and provide a secure location for the placement, operation and play of the video lottery terminals;

(b) Pay for the installation and operation of commission approved telephone lines to provide direct dial-up or online communication between each video lottery terminal and the commission's central control computer;

(c) Permit no person to tamper with or interfere with the operation of any video lottery terminal;

(d) Ensure that any telephone lines from the commission's central control computer to the video lottery terminals located at the licensed gaming facility are at all times connected and prevent any person from tampering or interfering with the operation of the telephone lines;

(e) Ensure that video lottery terminals are within the sight and control of designated employees of the license gaming facility;

(f) Ensure that video lottery terminals are placed and remain placed in the specific locations within the gaming facility that have been approved by the commission. No video lottery terminal or terminals at the gaming facility shall be relocated without the prior approval of the commission;

(g) Monitor video lottery terminals to prevent access to or play by persons who are under the age of twenty-one years or who are visibly intoxicated;

(h) Maintain at all times sufficient change and cash in the denominations accepted by the video lottery terminals;

(i) Provide no access by a player to an automated teller machine (ATM) in the area of the gaming facility where video lottery games are played;

(j) Pay for all credits won upon presentment of a valid winning video lottery ticket;

(k) Report promptly to the manufacturer and the commission all video lottery terminal malfunctions and notify the commission of the failure of a manufacturer or service technician to provide prompt service and repair of such terminals and associated equipment;

(l) Install, post and display prominently at locations within or about the licensed gaming facility signs, redemption information and other promotional material as required by the commission; and

(m) Promptly notify the commission in writing of any breaks or tears to any logic unit seals.

§29-25-32. Surcharge; Capital Reinvestment Fund.

(a) For all fiscal years beginning on or after July 1, 2009, there shall be imposed a surcharge of ten percent against the share of gross terminal income retained by the gaming facility as provided by section twenty of this article.

(b) The Capital Reinvestment Fund is hereby created within the Lottery Fund. The surcharge amount attributable to the historic resort hotel shall be retained by the commission and deposited into a separate capital reinvestment account for the historic resort hotel. For each dollar expended by the historic resort hotel for capital improvements at the historic resort hotel, of any amenity associated with the historic resort hotel's destination resort facility operations, or at adjacent facilities owned by the historic resort hotel having a useful life of seven or more years and placed in service after April 1, 2009, the licensed gaming facility shall receive $1 in recoupment from its Capital Reinvestment Fund account: If a historic resort hotel's unrecouped capital improvements exceed its Capital Reinvestment Fund account at the end of any fiscal year, the excess improvements may be carried forward to seven subsequent fiscal years.

(c) Any moneys remaining in the historic resort hotel's Capital Reinvestment Fund account at the end of any fiscal year shall be deposited in the Historic Resort Hotel Fund.

§29-25-33. License to be a provider of management services.

(a) License. -- The commission may issue a license to a person providing management services under a management services contract to a gaming facility when the commission determines that the person meets the requirements of this section and any applicable rules of the commission.

(b) License qualifications. -- Each applicant who is an individual and each individual who controls an applicant, as provided in subsection (f), section two of this article, shall be of good moral character, honesty and integrity and shall have the necessary experience and financial ability to successfully carry out the functions of a management services provider. The commission may adopt rules establishing additional requirements for an authorized management services provider. The commission may accept licensing by another jurisdiction, specifically determined by the commission to have similar licensing requirements, as evidence the applicant meets authorized management services provider licensing requirements.

(c) Management service provider specifications. -- An applicant for a license to provide management services to a gaming facility licensee shall demonstrate that the management services that the applicant plans to offer to the gaming facility licensee 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 to provide management services to a gaming facility licensee shall:

(1) Submit an application to the commission in the form required by the commission including adequate information to serve as a basis for a thorough background check;

(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and

(3) Pay to the commission a nonrefundable application fee for deposit into the Historic Resort Hotel Fund in the amount of $100.

(e) Authorization. -- A license to provide management services to a gaming facility licensee authorizes the licensee to provide management service to a gaming facility while the license is active. The commission may by rule establish the conditions which constitute an emergency under which the commission may issue provisional licenses pending completion of final action on an application.

(f) Fees, expiration date and renewal. -- A licensed provider of management services shall pay to the commission an annual license fee of $100 for an initial term beginning prior to the date of the provider's first contract with a gaming facility licensee and continuing through the end of the twelfth month thereafter whenever the licensee has paid the renewal fee and has continued to comply with all applicable statutory and rule requirements. The commission shall renew a license to provide management services to a gaming facility annually thereafter. A gaming facility licensee may continue to use the management services provided by the management services provider while that provider was licensed, notwithstanding the expiration of the provider's license, unless the commission finds the services provided are not conforming to standards established by rule of the commission and applicable state law.

§29-25-34. State ownership of West Virginia Lottery table games.

All West Virginia Lottery table games authorized by this article shall be West Virginia lottery games owned by the State of West Virginia. A gaming facility license granted to a historic resort hotel by the commission pursuant to this article shall include the transfer by the commission to the historic resort hotel limited license rights in and to the commission's intellectual property ownership of the West Virginia lottery games which includes granting licensees limited lawful authority relating to the conduct of lottery table games for consideration, within the terms and conditions established pursuant to this article and any rules promulgated under this article.

§29-25-35. Preemption.

No local law or rule providing any penalty, disability, restriction, regulation or prohibition for operating a historic resort hotel with West Virginia Lottery table games or supplying a licensed 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 with this article.

§29-25-36. Exemption from federal law.

Pursuant to Section 2, Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1172, approved January 2, 1951, the State of West Virginia, acting by and through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178.

§29-25-37. Game rules of play; disputes.

(a) As an agent of the commission authorized to operate West Virginia Lottery table games, the gaming facility licensee shall have written rules of play for each West Virginia Lottery table game it operates that are approved by the commission before the West Virginia Lottery table game is offered to the public. Rules of play proposed by the gaming facility may be approved, amended or rejected by the commission.

(b) All West Virginia Lottery table games shall be conducted according to the specific rules of play approved by the commission. All wagers and pay-offs of winning wagers shall be made according to those rules of play, which shall establish any limitations necessary to assure the vitality of West Virginia Lottery table game operations.

(c) The gaming facility licensee shall make available in printed form to any patron, upon request of the patron, the complete texts of the rules of play of any West Virginia Lottery table games in operation at the gaming facility, pay-offs of winning wagers and any other advice to the player required by the commission.

(d) Patrons are considered to have agreed that the determination of whether the patron is a valid winner is subject to the game of play rules and, in the case of any dispute, will be determined by the commission. The determination by the commission shall be final and binding upon all patrons and shall not be subject to further review or appeal.

§29-25-38. Shipment of gambling devices.

All shipments of gambling devices, including video lottery machines, to the licensed gaming facility in this state, the registering, recording and labeling of which have been completed by the manufacturer or dealer thereof in accordance with Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178, are legal shipments of gambling devices into the State of West Virginia.

§29-26-1. West Virginia Courthouse Facilities Improvement Authority created; membership.

(a) The West Virginia Courthouse Facilities Improvement Authority is hereby created.

(b) The authority is to consist of twelve voting members, including:

(1) The president of the West Virginia Sheriffs' Association or another member of the association designated to attend in lieu of the president;

(2) One sheriff to be appointed by the president of the West Virginia Sheriffs' Association: Provided, That the sheriff who is appointed may not be from the same congressional district as the president;

(3) The president of the West Virginia prosecuting attorneys' Association or another member of the association designated to attend in lieu of the president;

(4) One prosecuting attorney to be appointed by the president of the West Virginia prosecuting attorneys' Association: Provided, That the prosecuting attorney who is appointed may not be from the same congressional district as the president;

(5) The president of the West Virginia' County Clerks' Association or another member of the association designated to attend in lieu of the president;

(6) The president of the West Virginia' Association of Circuit Clerks or another member of the association designated to attend in lieu of the president;

(7) One county clerk to be appointed by the president of the West Virginia County Clerks' Association: Provided, That the county clerk who is appointed may not be from the same congressional district as the president;

(8) One circuit clerk to be appointed by the president of the West Virginia Association of Circuit Clerks: Provided, That the circuit clerk who is appointed may not be from the same congressional district as the president;

(9) The president of the West Virginia county commissioners' Association or another member of the association designated to attend in lieu of the president;

(10) One county commissioner to be appointed by the president of the West Virginia county commissioners' Association: Provided, That the county commissioner who is appointed may not be from the same congressional district as the president;

(11) The president of the West Virginia assessors' Association or another member of the association designated to attend in lieu of the president; and

(12) One assessor to be appointed by the president of the West Virginia assessors' Association: Provided, That the assessor who is appointed may not be from the same congressional district as the president.

(c) The authority is to consist of eight advisory members, including:

(1) The president of the West Virginia Judicial Association or another member of the association designated to attend in lieu of the president;

(2) One circuit judge to be appointed by the West Virginia Judicial Association: Provided, That the circuit judge who is appointed may not be from the same congressional district as the president;

(3) The president of the West Virginia Magistrates' Association or another member of the association designated to attend in lieu of the president;

(4) One magistrate to be appointed by the West Virginia Magistrates' Association: Provided, That the magistrate who is appointed may not be from the same congressional district as the president;

(5) The president of the West Virginia Family Judicial Association or another member of the association designated to attend in lieu of the president;

(6) One family court judge to be appointed by the West Virginia Family Judicial Association: Provided, That the family court judge who is appointed may not be from the same congressional district as the president;

(7) One member of the West Virginia Senate to be appointed by the President of the Senate; and

(8) One member of the West Virginia House of Delegates to be appointed by the Speaker of the House of Delegates.

(d) The advisory members of the authority are nonvoting, ex officio members.

(e) The appointments are to be made as soon as possible after the effective date of this article. The terms of appointments are for four-year terms.

(f) The authority shall annually elect one of its members as chair and shall appoint a secretary, who need not be a member of the authority and who shall keep records of its proceedings.

(g) The authority shall meet at least once every ninety days to review applications requesting funding assistance and otherwise to conduct its business and may meet more frequently if necessary.

(h) Seven members of the authority constitute a quorum and the affirmative vote of at least a majority of those members present is necessary for any action taken by vote of the authority. No vacancy in the membership of the authority impairs the rights of a quorum by such vote to exercise all the rights and perform all the duties of the authority.

(i) Members of the authority shall be reimbursed for reasonable and necessary expenses actually incurred in the performance of their official duties from funds appropriated or otherwise made available to the authority for the purpose of reimbursement upon submission of an itemized statement.

§29-26-2. Definitions.

The following terms, wherever used or referred to in this article, have the following meaning:

(a) "Approved modifications or construction of courthouse facilities" means any modification or construction of a courthouse facility which has been recommended for assistance by the authority according to the requirements of section four of this article;

(b) "Authority" means the West Virginia courthouse facilities improvement authority;

(c) "Cost" means the cost of construction, renovation, repair and safety upgrading of courthouse facilities; the cost of land, equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing a courthouse facility in operation; and the cost of financing, interest during construction, professional service fees and all other charges or expenses necessary, appurtenant or incidental to the modification or construction of a courthouse facility; and

(d) "Courthouse facility" means buildings or structures which are occupied exclusively by offices of county and judicial officials or by courtrooms, county jails or detention centers.

§29-26-3. Development of guidelines and application for funding assistance.

(a) The authority shall propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the authority in evaluating any request by a county for funding assistance for the modification of an existing courthouse facility or the construction of a new county courthouse facility.

(b) The guidelines shall include the following factors:

(1) The degree of increased security of records kept by the offices of the county, circuit and magistrate court clerks in the county;

(2) The degree of increased safety for personnel whose offices are contained in the existing court facility or will be contained in the proposed court facility;

(3) The degree to which the proposal of modification or construction can correct deficiencies in compliance with building codes and with the requirements of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.;

(4) The degree of increased efficiency and modernization in the preservation of records kept by the offices of the county officers, circuit clerks and magistrate court clerks in the county;

(5) The increased efficiency and modernization of the storage of records kept by the offices of the county officers, circuit clerks and magistrate court clerks in the county;

(6) The availability of alternative sources of funding which could finance all or a part of the modification or construction of a courthouse facility;

(7) The need for the assistance of the authority to finance the modification or construction of a courthouse facility or attract other sources of funding;

(8) The applicant county's ability to operate and maintain the courthouse facility if the modification or construction is granted assistance by the authority;

(9) The degree to which the modification or construction of a courthouse facility achieves other state or regional planning goals;

(10) The estimated date upon which the modification or construction of a courthouse facility could commence if funding were available and the estimated completion date of the modification or construction; and

(11) Other considerations the authority considers necessary or appropriate to accomplish its duties as defined in this article.

(c) The authority shall create an application form which shall be used by all counties requesting funding assistance from the authority.

(d) The application shall require the county applicant to set forth the following information:

(1) The type and proposed location of the proposed modification or construction of a courthouse facility;

(2) The estimated total cost of the proposed modification or construction of a courthouse facility;

(3) The amount of funding assistance required and the specific uses of the funding;

(4) Other sources of funding available or potentially available for the modification or construction;

(5) Information demonstrating the need for the modification or construction and that the proposed funding of the modification or construction is the most economically feasible to the completion of the modification or construction; and

(6) Any other information the authority considers necessary to enable it to recommend the type of financing, in terms of the kind, amount and source of funding, which the applicant county should pursue and which the authority should consider an appropriate investment of public funds.

§29-26-4. Requirements for assistance; review of application.

(a) No county applicant may receive any loan, loan guarantee, grant or other funding assistance for the modification or construction of a courthouse facility from the authority unless:

(1) The county applicant submits a completed application to the authority on the form prepared by the authority pursuant to section three of this article; and

(2) The authority, after having considered the application, recommends the county applicant receive a loan, loan guarantee, grant or other funding assistance for the proposed modification or construction.

(b) The authority shall, within ninety days of receipt of each completed application submitted to it, review the application and either:

(1) Make a written recommendation as to the modification or construction financing, in terms of the kind, amount and source of funding, for which the applicant county submitting the application is eligible; or

(2) If the authority determines that (A) the proposed modification or construction of a courthouse facility is not eligible for funding assistance from the authority, or (B) the proposed modification or construction of a courthouse facility is not otherwise an appropriate or prudent investment of state funds, the authority shall state the reasoning for its findings in a written rejection of the county applicant's application.

§29-26-5. Powers of the authority.

In addition to the powers set forth elsewhere in this article, the authority may exercise the following powers it considers the exercise of these powers necessary and appropriate to carry out and effectuate its responsibilities as defined by this article. The authority may:

(a) Employ an executive director and an executive assistant as may be necessary in the judgment of the authority and fix their compensation;

(b) Acquire, hold and dispose of real and personal property for its corporate purposes;

(c) Make bylaws for the management and rule of its affairs;

(d) Contract with and employ attorneys, accountants, construction and financial experts, architects, engineers, managers and such other employees and agents that are necessary in the judgment of the authority and fix their compensation;

(e) Make contracts and execute all instruments necessary or convenient to exercise the powers granted to it by this article;

(f) Renegotiate all contracts entered into by it whenever, due to a change in situation, it appears to the authority that its interests will be best served;

(g) Accept and expend any gift, grant, contribution, bequest or endowment of money to, or for the benefit of, the authority, from the State of West Virginia or any other source;

(h) Identify any alternative sources of funding, whether privately or publicly administered, and assist county applicants in the securing of alternative sources of funding; and

(i) Do all things necessary or convenient to carry out the powers given in this article.

§29-26-6. The courthouse facilities improvement fund.

(a) There is hereby created in the State Treasury a special revenue account to be known as the "West Virginia courthouse facilities improvement fund." The West Virginia courthouse facilities improvement fund may receive any gifts, grants, contributions or other money from any source which is specifically designated for deposit in the fund.

(b) The authority shall undertake a study on the condition and state of need of every courthouse facility throughout the State of West Virginia, and shall determine the estimated cost of the improvements which are necessary to bring each facility into conformity with requirements outlined in this article. The authority shall submit to the Legislature, on or before January 1, 2002, a report which shall contain the estimate of the cost, a plan for the financing of the cost, and an estimated prioritized schedule for the implementation and financing of the improvements to be made pursuant to the provisions of this article.

(c) The moneys of the West Virginia courthouse facilities improvement fund shall be disbursed by the authority for the funding of approved modifications or construction of court facilities and to pay expenses of the authority in administering the provisions of this article.

(d) Any disbursements from the West Virginia courthouse facilities improvement fund allocated for approved modifications or construction of courthouse facilities may be made contingent upon local appropriations or gifts in money or in kind for the support of the modifications or construction.

(e) Nothing in this article may be construed to mandate funding for the West Virginia court facilities improvement fund or to require any appropriation by the Legislature.

§29-27-1. Legislative findings.

[Repealed.]

§29-27-2. Definitions.

[Repealed.]

§29-27-3. Creation; appointment of board; terms; expenses; executive director.

[Repealed.]

§29-27-4. Board; quorum; chairperson; bylaws.

[Repealed.]

§29-27-5. Powers of authority.

[Repealed.]

§29-27-6. Continuation of legal obligations.

[Repealed.]

§29-28-1.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-2.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-3.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-4.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-5.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-6.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-7.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-8.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-9.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-10.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-11.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-12.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-28-13.

Repealed.

Acts, 2015 Reg. Sess., Ch. 179.

§29-29-1. Short title.

This article shall be known as and may be cited to as the "Volunteer for Nonprofit Youth Organizations Act".

§29-29-2. Legislative purpose.

The Legislature finds that:

(1) Adventure and recreational activities attractive to nonprofit youth organizations interested in training and inspiring young people from other parts of the United States and throughout the world will contribute significantly to the economy of West Virginia, and enhance the state's reputation as a place to visit and transact business; and

(2) Nonprofit youth organizations must rely on volunteers to staff and support their events and programs and that some of the volunteers are medical, nursing, emergency medical service and law-enforcement professionals authorized to practice in other states. Because of the large number of volunteers required to support those events and programs, the benefits these events and programs provide to youth, the multicounty areas those events and programs may cover and the number of agencies potentially involved in granting authorizations to practice for those volunteers to provide those services in this state, it is in the state's best interest to provide a streamlined system to permit those volunteers to practice for the periods of time they engage in volunteer work at those events and programs.

§29-29-3. Definitions.

As used in this article:

(a) "Applicant" means any emergency medical service applicant, law-enforcement applicant or medical services applicant, that is registered as a volunteer of the nonprofit organization, making application for a nonprofit volunteer permit under the provisions of this article.

(b) "Appropriate licensing agency" means the board, department, division or other agency in each jurisdiction charged with the licensing, certification or permitting of persons performing services of the nature and kind described or duties provided for in this article.

(c) "Emergency medical service applicant" means a person authorized to provide emergency medical services in West Virginia, or in another state who but for this article would be required to obtain a certification from the Commissioner of the Bureau for Public Health pursuant to article eight, chapter sixteen of this code to perform emergency medical services in this state.

(d) "Law-enforcement applicant" means a person authorized to work as a law-enforcement officer in West Virginia, or in another state who but for this article would be required to obtain authorization pursuant to article twenty-nine, chapter thirty of this code to work as a law-enforcement officer in this state: Provided, That any person authorized to work as a law-enforcement officer in another state shall have completed a training program approved by the governing authority of a political subdivision in order to work as a law-enforcement officer in that state.

(e) "Medical services applicant" means a person authorized to provide medical services in West Virginia, or in another state who but for this article would be required to obtain authorization to practice in this state, and who is a:

(1) Practitioner of medicine, surgery or podiatry as defined in article three, chapter thirty of this code;

(2) Physician assistant as defined in section three, article three, chapter thirty of this code;

(3) Chiropractor as defined in section three, article sixteen, chapter thirty of this code;

(4) Dentist or dental assistant as defined in article four, chapter thirty of this code;

(5) Nurse as defined in article seven or seven-a, chapter thirty of this code;

(6) Nurse practitioner as defined in section one, article four-b, chapter nine of this code;

(7) Occupational therapist as defined in section three, article twenty-eight, chapter thirty of this code;

(8) Practitioner of optometry as defined in section three, article eight, chapter thirty of this code;

(9) Osteopathic physician or surgeon as defined in article fourteen, chapter thirty of this code;

(10) Osteopathic physician assistant as defined in article fourteen-a, chapter thirty of this code;

(11) Pharmacist as defined in article five, chapter thirty of this code;

(12) Physical therapist as defined in article twenty, chapter thirty of this code;

(13) Professional counselor as defined in section three, article thirty-one, chapter thirty of this code;

(14) Practitioner of psychology or school psychologist as defined in section two, article twenty-one, chapter thirty of this code;

(15) Radiologic technologist, nuclear medicine technologist or practitioner of medical imaging and radiation therapy technology as defined in section four, article twenty-three, chapter thirty of this code; and

(16) Social worker licensed by the state Board of Social Work Examiners pursuant to article thirty, chapter thirty of this code.

(f) "Nonprofit volunteer permit" or "permit" means a permit issued to an applicant pursuant to the provisions of this article.

(g) "Nonprofit volunteer permittee" or "permittee" means a person holding a nonprofit volunteer permit issued under the provisions of this article.

(h) "Nonprofit youth organization" or "organization" means any nonprofit organization, including any subsidiary, affiliated or other related entity within its corporate or business structure, that has been chartered by the United States Congress to help train young people to do things for themselves and others, and that has established an area of at least six thousand contiguous acres within West Virginia in which to provide adventure or recreational activities for these young people and others.

(i) "Nonprofit volunteer organization medical director" means an individual licensed in West Virginia as a practitioner of medicine or surgery pursuant to article three, chapter thirty of this code, or an individual licensed in West Virginia as an osteopathic physician or surgeon pursuant to article fourteen, chapter thirty of this code, that has been designated by the nonprofit volunteer organization to serve as the medical director for an event or program offered by the organization.

§29-29-4. Exemption from professional licensure.

(a) Notwithstanding any other provision of this code, any individual rendering services in this state in connection with any event or program offered by the nonprofit youth organization is exempt from obtaining an authorization to practice from the appropriate licensing agency of this state while providing services within the limits of his or her authorization to practice, but is required to obtain a nonprofit volunteer permit.

(b) The nonprofit youth organization may issue a nonprofit volunteer permit to an applicant, who is a registered volunteer of the nonprofit youth organization serving as a volunteer, without compensation, in connection with any event or program offered by the organization, if:

(1) All authorizations held by the medical services applicant are valid, unrestricted without limitation or condition and in good standing: Provided, That any medical services applicant issued a permit pursuant to this article shall:

(A) Not have prescriptive authority;

(B) Not dispense a Schedule II or Schedule III controlled substance, but may dispense pharmaceutical drugs in a manner consistent with the applicant’s training and experience; and

(C) At all times be subject to the direction of nonprofit volunteer organization medical director.

(2) All authorizations held by the law-enforcement applicant are valid, unrestricted without limitation or condition and in good standing and the applicant is deputized by the Superintendent of the West Virginia State Police pursuant to subsection (e), section twelve, article two, chapter fifteen of this code prior to rendering any law-enforcement services: Provided, That:

(A) Any permit issued pursuant to this article shall not supersede the authority or duty of a law-enforcement officer certified pursuant to article twenty-nine, chapter thirty of this code to preserve law and order on the premises;

(B) The Superintendent of the West Virginia State Police has sole discretion in determining whether to deputize any law-enforcement applicant; and

(C) The jurisdiction for a law-enforcement applicant issued a permit pursuant to the provisions of this article shall be limited to:

(i) The property owned by the nonprofit youth organization;

(ii) Any street, road or thoroughfare, except controlled access and open country highways, immediately adjacent to or passing through the property owned by the nonprofit youth organization; and

(iii) Areas of operations in support of an event sponsored by the nonprofit youth organization.

(D) A law-enforcement applicant issued a permit pursuant to the provisions of this article shall at all times be subject to the direction of the Superintendent of the West Virginia State Police.

(3) All authorizations held by the emergency medical service applicant are valid, unrestricted without limitation or condition and in good standing: Provided, That any emergency medical service applicant issued a permit pursuant to this article shall:

(A) Not have prescriptive authority;

(B) Not dispense a Schedule II or Schedule III controlled substance, but may dispense pharmaceutical drugs in a manner consistent with the applicant’s training and experience; and

(C) At all times be subject to the direction of nonprofit volunteer organization medical director.

(c) Any services rendered by a permittee shall at all times be performed under the guidelines and instructions of the nonprofit volunteer organization.

(d) A nonprofit volunteer permit issued pursuant to the provisions of this article may only be valid for a period not to exceed ninety days in a calendar year.

(e) Unless otherwise provided, the nonprofit youth organization shall take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested.

§29-29-5. Powers and duties of nonprofit youth organization.

(a) Before the nonprofit youth organization may issue a nonprofit volunteer permit to an applicant, the organization shall:

(1) Gather and maintain the following information for each applicant:

(A) The applicant's name, position, address and phone number;

(B) A copy of the applicant's authorization to practice from all jurisdictions in which the applicant is authorized to practice;

(2) Require documentation that the applicant has received at least two hours of instruction provided by the nonprofit youth organization, which may be accomplished by webinar, video conference or other remote means of instruction;

(3) No more than one hundred twenty days prior to any volunteer services being performed, require documentation from all jurisdictions in which the applicant authorized to practice stating that the applicant's authorization to practice is valid, in good standing and unrestricted and without limitation or condition; and

(4) Require a written acknowledgment signed by the applicant that the rules, regulations and procedures established by the nonprofit youth organization have been received and reviewed.

(b) All information and documentation maintained and gathered pursuant to this section shall be maintained in a safe and secure manner, which may be electronically, by the nonprofit youth organization for a period of ten years from the date a permit is issued to the applicant.

(c) The nonprofit youth organization providing emergency medical services shall have a license to operate an emergency medical services agency pursuant to section six-a, article four-c, chapter sixteen of this code and the Commissioner of the Bureau for Public Health may make such adjustments to the licensing standards to reflect the nature of the services provided by the permittees and the size, scope and interests being served by any event or program of such organization.

§29-29-6. Revocation of nonprofit volunteer permit.

(a) The nonprofit volunteer permit may be revoked at any time by the nonprofit volunteer organization.

(b) The nonprofit volunteer organization shall revoke a nonprofit volunteer permit and shall report the revocation to the appropriate licensing agency in every jurisdiction where the individual holds an authorization to practice for the following reasons:

(1) Professional incompetence;

(2) Professional misconduct; or

(3) Criminal activity.

§29-29-7. Liability of permittees and the nonprofit volunteer organization for volunteer services.

(a) Any claim arising out of the services provided by a permittee or the nonprofit volunteer organization pursuant to this article shall be determined in the same manner and by the same standards as if the permittee was authorized to practice in this state.

(b) The nonprofit youth organization shall carry liability insurance in limits of no less than $1 million per person, and $3 million per occurrence and $50,000 for property damage and this insurance shall extend to the acts of any nonprofit volunteer permittees providing services under this article and shall be primary to any other available insurance.

(c) The liability of nonprofit volunteer permittees shall be limited to the amount of liability insurance available to them under subsection (b) unless the act or omission giving rise to the permittee's liability was the result of willful misconduct: Provided, That permittees deputized by the Superintendent of the West Virginia State Police pursuant to section four of this article and subsection (e), section twelve, article two, chapter fifteen of the code, shall not be considered an insured under the terms of the liability insurance policy provided West Virginia state agencies through the state Board of Risk and Insurance Management.

(d) The West Virginia appropriate licensing agency shall not be liable for any harm or claim arising solely out of the actions of any permittee exempt from obtaining authorization to practice in this state pursuant to this article.

§29-30-1. Short title.

This article shall be cited as the Emergency Volunteer Health Practitioners Act.

§29-30-2. Definitions.

The following words have the following meaning:

(a) “Credentialing” means obtaining, verifying and assessing the qualifications of a health practitioner to provide treatment, care or services in or for a health facility.

(b) “Disaster relief organization” means an entity that provides emergency or disaster relief services that include health or veterinary services provided by volunteer health practitioners and that:

(1) Is designated or recognized as a provider of those services pursuant to a disaster response and recovery plan adopted by an agency of the federal government or by the Governor of this state; or

(2) Regularly plans and conducts its activities in coordination with an agency of the federal government or any agency designated by the Governor.

(c) “Emergency” means an event or condition that is an emergency, disaster or public health emergency pursuant to a declaration of the Governor or any agency designated by the Governor.

(d) “Emergency declaration” means a declaration of emergency issued by the Governor or his or her designee pursuant to the laws of this state.

(e) “Emergency Management Assistance Compact” means the interstate compact approved by Congress by Public Law No. 104-321,110 Stat. 3877.

(f) “Entity” means a person other than an individual.

(g) “Health facility” means an entity licensed pursuant to the laws of this or another state to provide health or veterinary services.

(h) “Health practitioner” means an individual licensed pursuant to the laws of this or another state to provide health or veterinary services. For the purposes of this article, a health practitioner includes a physician, a physician assistant, a dentist, a dental hygienist, a pharmacist, a pharmacy technician, a pharmacy intern, a registered professional nurse, a licensed practical nurse, an optometrist, an osteopathic physician, a chiropractor, a physical therapist, a psychologist, an occupational therapist and a veterinarian.

(i) “Health services” means the provision of treatment, care, advice or guidance, or other services or supplies, related to the health or death of individuals or human populations, to the extent necessary to respond to an emergency, including:

(1) The following, concerning the physical or mental condition or functional status of an individual or affecting the structure or function of the body:

(A) Preventive, diagnostic, therapeutic, rehabilitative, maintenance or palliative care; and

(B) Counseling, assessment, procedures or other services;

(2) Sale or dispensing of a drug, a device, equipment or another item to an individual in accordance with a prescription; and

(3) Funeral, cremation, cemetery or other mortuary services.

(j) “Host entity” means an entity operating in this state which uses volunteer health practitioners to respond to an emergency.

(k) “License” means authorization and licensing by an appropriate licensing board to engage in health or veterinary services that are unlawful without the license. The term includes authorization pursuant to the laws of this state to an individual to provide health or veterinary services based upon a national certification issued by a public or private entity.

(l) “Person” means an individual, corporation, business trust, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.

(m) “Privileging” means the authorizing by an appropriate authority, such as a governing body, of a health practitioner to provide specific treatment, care or services at a health facility subject to limits based on factors that include license, education, training, experience, competence, health status and specialized skill.

(n) “Scope of practice” means the extent of the authorization to provide health or veterinary services granted to a health practitioner by a license issued to the practitioner in the state in which the principal part of the practitioner’s services is rendered, including any conditions imposed by the licensing authority.

(o) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(p) “Veterinary services” means the provision of treatment, care, advice or guidance or other services or supplies related to the health or death of an animal or to animal populations, to the extent necessary to respond to an emergency, including:

(1) Diagnosis, treatment or prevention of an animal disease, injury or other physical or mental condition by the prescription, administration or dispensing of a vaccine, medicine, surgery or therapy;

(2) Use of a procedure for reproductive management; and

(3) Monitoring and treatment of animal populations for diseases that have spread or demonstrate the potential to spread to humans.

(q) “Volunteer health practitioner” means a health practitioner who provides health or veterinary services, whether or not the practitioner receives compensation for those services. The term does not include a practitioner who receives compensation pursuant to a preexisting employment relationship with a host entity or affiliate which requires the practitioner to provide health services in this state, unless the practitioner is not a resident of this state and is employed by a disaster relief organization providing services in this state while an emergency declaration is in effect.

§29-30-3. Applicability.

This article applies to volunteer health practitioners registered with a registration system pursuant to section five of this article and who provide health or veterinary services in this state for a host entity while an emergency declaration is in effect.

§29-30-4. Regulation during an emergency.

(a) While an emergency declaration is in effect, the Governor or his or her designee may limit, restrict or otherwise regulate:

(1) The duration of practice by volunteer health practitioners;

(2) The geographical areas in which volunteer health practitioners may practice;

(3) The types of volunteer health practitioners who may practice; and

(4) Any other matters necessary to coordinate effectively the provision of health or veterinary services during the emergency.

(b) An order issued pursuant to this section may take effect immediately.

(c) A host entity that uses volunteer health practitioners to provide health or veterinary services in this state shall:

(1) Consult and coordinate its activities with the Governor or his or her designee to the extent practicable to provide for the efficient and effective use of volunteer health practitioners; and

(2) Comply with any laws of this state relating to the management of emergency health or veterinary services.

§29-30-5. Volunteer health practitioner registration system.

(a) To qualify as a volunteer health practitioner registration system, a system must:

(1) Accept applications for the registration of volunteer health practitioners before or during an emergency;

(2) Include information about the licensure and good standing of health practitioners which is accessible by authorized persons;

(3) Be capable of confirming the accuracy of information concerning whether a health practitioner is licensed and in good standing before health services or veterinary services are provided pursuant to this article; and

(4) Meet one of the following conditions:

(A) Be an emergency system for advance registration of volunteer health care practitioners established by a state and funded through the Department of Health and Human Services pursuant to Section 319I of the Public Health Services Act, 42 U. S. C. Section 247d-7b, as amended;

(B) Be a local unit consisting of trained and equipped emergency response, public health, and medical personnel formed pursuant to Section 2801 of the Public Health Services Act, 42 U.S.C. Section 300hh as amended;

(C) Be operated by a:

(i) Disaster relief organization;

(ii) Licensing board;

(iii) National or regional association of licensing boards or health practitioners;

(iv) Health facility that provides comprehensive inpatient and outpatient health care services, including a tertiary care and teaching hospital; or

(v) Governmental entity; or

(D) Be designated by the Governor or his or her designee as a registration system for purposes of this article.

(b) While an emergency declaration is in effect, the Governor or his or her designee or a host entity, may confirm whether volunteer health practitioners utilized in this state are registered with a registration system that complies with this article. Confirmation is limited to obtaining identities of the practitioners from the system and determining whether the system indicates that the practitioners are licensed and in good standing.

(c) Upon request of a person in this state authorized pursuant to this article, or a similarly authorized person in another state, a registration system located in this state shall notify the person of the identities of volunteer health practitioners and whether the practitioners are licensed and in good standing.

(d) A host entity is not required to use the services of a volunteer health practitioner even if the practitioner is registered with a registration system that indicates that the practitioner is licensed and in good standing.

§29-30-6. Recognition of volunteer health practitioners licensed in other states.

(a) While an emergency declaration is in effect, a volunteer health practitioner, registered with a registration system pursuant to this article and licensed and in good standing in the state upon which the practitioner’s registration is based, may practice in this state to the extent authorized by this article as if the practitioner were licensed in this state.

(b) A volunteer health practitioner qualified pursuant to this article is not entitled to the protections of this article if the practitioner is licensed in more than one state and any license of the practitioner is suspended, revoked or subject to an agency order limiting or restricting practice privileges, or has been voluntarily terminated under threat of sanction.

§29-30-7. Credentialing and privileging.

The provisions of this article do not affect credentialing or privileging standards of a health facility and does not preclude a health facility from waiving or modifying those standards while an emergency declaration is in effect.

§29-30-8. Administrative sanctions.

(a) Subject to subsections (b) and (c) of this section, a volunteer health practitioner shall adhere to the scope of practice for a similarly licensed practitioner established by the licensing provisions, practice acts or other laws of this state.

(b) Except as otherwise provided in subsection (c) of this section, this section does not authorize a volunteer health practitioner to provide services that are outside the practitioner’s scope of practice, even if a similarly licensed practitioner in this state would be permitted to provide the services.

(c) The State Health Officer may modify or restrict the health or veterinary services that volunteer health practitioners may provide pursuant to this article. An order issued pursuant to this section takes effect immediately.

(d) A host entity may restrict the health or veterinary services that a volunteer health practitioner may provide pursuant to this article.

(e) A volunteer health practitioner does not engage in unauthorized practice unless the practitioner has reason to know of any limitation, modification or restriction under this section or that a similarly licensed practitioner in this state would not be permitted to provide the services. A volunteer health practitioner has reason to know of a limitation, modification or restriction or that a similarly licensed practitioner in this state would not be permitted to provide a service if:

(1) The practitioner knows the limitation, modification or restriction exists or that a similarly licensed practitioner in this state would not be permitted to provide the service; or

(2) From all the facts and circumstances known to the practitioner at the relevant time, a reasonable person would conclude that the limitation, modification or restriction exists or that a similarly licensed practitioner in this state would not be permitted to provide the service.

(f) In addition to the authority granted by law of this state other than this to regulate the conduct of health practitioners, a licensing board or other disciplinary authority in this state:

(1) May impose administrative sanctions upon a health practitioner licensed in this state for conduct outside of this state in response to an out-of-state emergency;

(2) May impose administrative sanctions upon a practitioner not licensed in this state for conduct in this state in response to an in-state emergency; and

(3) Shall report any administrative sanctions imposed upon a practitioner licensed in another state to the appropriate licensing board or other disciplinary authority in any other state in which the practitioner is known to be licensed.

(g) In determining whether to impose administrative sanctions under subsection (f) of this section, a licensing board or other disciplinary authority shall consider the circumstances in which the conduct took place, including any exigent circumstances, and the practitioner’s scope of practice, education, training, experience and specialized skill.

§29-30-9. Relation to other laws.

(a) Nothing contained in this article limits rights, privileges or immunities provided to volunteer health practitioners by laws other than this article. Except as otherwise provided in subsection (b) of this section, this article does not affect requirements for the use of health practitioners pursuant to the Emergency Management Assistance Compact.

(b) The Department of Health, pursuant to the Emergency Management Assistance Compact, may incorporate into the emergency forces of this state volunteer health practitioners who are not officers or employees of this state, a political subdivision of this state or a municipality or other local government within this state.

§29-30-10. Limitation of liability.

(a) Subject to subsection (b) of this section, a volunteer health practitioner who provides health or veterinary services pursuant to this article is not liable for damages for an act or omission of the practitioner in providing those services unless the act or omission is an intentional tort or is willful misconduct or wanton, grossly negligent, reckless or criminal conduct.

(b) This section does not limit the liability of a volunteer health practitioner for:

(1) Willful misconduct or wanton, grossly negligent, reckless or criminal conduct;

(2) An intentional tort;

(3) Breach of contract;

(4) A claim asserted by a host entity or by an entity located in this or another state which employs or uses the services of the practitioner; or

(5) An act or omission relating to the operation of a motor vehicle, vessel, aircraft or other vehicle.

(c) A person that operates, uses or relies upon information provided by a volunteer health practitioner registration system is not liable for damages for an act or omission relating to that operation, use or reliance unless the act or omission is an intentional tort or is willful misconduct or wanton, grossly negligent, reckless or criminal conduct.

§29-30-11. Rulemaking.

The Secretary of the Department of Health may promulgate rules pursuant to article three, chapter twenty-nine-a of this code to implement the provisions of this article. These rules shall include measures to facilitate the receipt of benefits for injury or death pursuant to the workers’ compensation laws of this state by volunteer health practitioners who reside in other states.

§29-31-1. Short title; legislative findings; purpose.

(a) This article may be known and cited as the "Resiliency and Flood Protection Planning Act".

(b) The West Virginia Legislature finds that:

(1) Flooding has affected each of the 55 counties and 32 major watersheds within the state;

(2) Over the past 52 years, more than 282 West Virginians have died in floods;

(3) Between January 1996 and January 2017, there were 27 federal disaster declarations in West Virginia involving flooding;

(4) Between January 2010 and December 2021, West Virginia was impacted by more than 1,600 separate flood events;

(5) In June 2016, much of West Virginia suffered devastating flooding; and

(6) Despite the many state and federal flood protection programs and projects, flooding continues to be West Virginia’s most common and widespread natural disaster.

(c) It is the purpose of this article to:

(1) Provide a comprehensive and coordinated statewide resiliency and flood protection planning program to save lives, and develop community and economic resiliency plans including, but not limited to, reducing or mitigating flood damage while supporting economic growth and protecting the environment; and

(2) Provide for funding mechanisms to implement such state and community plans developed through the program.

§29-31-2. State resiliency office, officer, deputy, and board.

(a) It is determined that a state authority is required to provide a coordinated effort and planning for disaster recovery and resiliency between government agencies, first responders, and all other entities to reduce the loss of life and property, lessen the impact of future disasters, protect property and the environment, meet basic human needs, and provide economic growth and resilience prior to and in the aftermath of an incident. Therefore, the State Resiliency Office is created. The office shall be organized within the Office of the Governor. The office will serve as the recipient of disaster recovery and resiliency funds, excluding federal Stafford Act funds, and the coordinating agency of recovery and resiliency efforts, including matching funds for other disaster recovery programs, excluding those funds and efforts under the direct control of the State Resiliency Officer pursuant to §29-31-3, §29-31-6, §29-31-7 and §29-31-8 of this code.

(b)(1) The State Resiliency Office Board is also established and shall consist of the following members: The State Resiliency Officer; the Secretary of the Department of Commerce or his or her designee; the Director of the Division of Natural Resources or his or her designee; the Secretary of the Department of Environmental Protection or his or her designee; the Executive Director of the State Conservation Agency or his or her designee; the President of the West Virginia Emergency Management Council or his or her designee; the Secretary of the Department of Health or his or her designee; the Secretary of the Department of Homeland Security or his or her designee; the Secretary of Transportation or his or her designee; the Adjutant General of the West Virginia National Guard or his or her designee; the Director of the Division of Emergency Management within the Department of Homeland Security or his or her designee; two nonvoting members of the West Virginia Senate, one from each party, to be appointed by the President of the Senate; and two nonvoting members of the West Virginia House of Delegates, one from each party, to be appointed by the Speaker of the House of Delegates.

(2) A member of the board holds office so long as he or she retains the office or position by virtue of which he or she is serving on the board. A majority of the voting members of the board is a quorum and the concurrence of a board in any matter within their duties is required for its determination. The members of the board may not receive compensation for their services on the committee, but are entitled to reimbursement of expenses, including traveling expenses necessarily incurred in the discharge of their duties on the board.

(3) The board shall:

(A) Provide for the keeping of a full and accurate record of all proceedings and of all resolutions, rules, and orders issued or adopted, and of its other official actions;

(B) Shall adopt a seal, which shall be judicially noticed;

(C) Provide for an annual audit of the accounts of receipts and disbursements of the State Resiliency Office; and

(D) Perform those acts necessary for the execution of its functions under this article.

(1) The State Resiliency Officer shall be the chair of the State Resiliency Office Board and shall be appointed by the Governor with the advice and consent of the Senate. The State Resiliency Officer may cast a vote only in the event of a tie vote. The board shall elect from its voting membership a vice chair. The vice chair shall preside over the meetings of the board in the absence of the chair. In the absence of both the chair and the vice chair any member designated by the members present may act as chair.

(2) The State Resiliency Officer shall be vested with the authority and duties prescribed to the office within this article.

(3) The State Resiliency Officer shall be a person who has:

(A) At least five years’ managerial or strategic planning experience in matters relating to flood control, hazard mitigation, and disaster resiliency, or alternatively, in disaster recovery, emergency management, community and economic development, regional planning, economics, or related public policy field;

(B) At least a level IS-800 NIMS certification: Provided, That if the State Resiliency Officer does not have a level IS-800 NIMS certification when appointed, he or she shall become so certified within one year following appointment; and

(C) Be thoroughly knowledgeable in matters relating to flood control, hazard mitigation, and disaster resiliency, or alternatively, in matters relating to disaster recovery, emergency management, community and economic development, regional planning, economics, or related public policy field.

(4) The State Resiliency Officer shall employ a deputy who shall assist the State Resiliency Officer in carrying out the duties of the office. The State Resiliency Office Board shall meet and submit a list of no more than five nor less than two of the most qualified persons to the Governor within 90 days of the occurrence of a vacancy in this deputy position. This deputy shall be appointed by the Governor with the advice and consent of the Senate. Applicants for the deputy position shall at a minimum:

(A) Have at least three years’ managerial or strategic planning experience in matters relating to flood control, hazard mitigation, and disaster resiliency, or alternatively, in disaster recovery, emergency management, community and economic development, regional planning, economics, or related public policy field;

(B) Have at least a level IS-800 NIMS certification: Provided, That if the deputy State Resiliency Officer does not have a level IS-800 NIMS certification when appointed, he or she shall become so certified within one year following appointment; and

(C) Be thoroughly knowledgeable in matters relating to flood control, hazard mitigation, and disaster resiliency, or alternatively, in matters relating to disaster recovery, emergency management, community and economic development, regional planning, economics, or related public policy field.

(5) The State Resiliency Officer shall employ additional staff as necessary to assist the State Resiliency Officer in carrying out the duties of the office.

(d) The board shall meet no less than once each calendar quarter at the time and place designated by the chair and the board shall work together with the State Resiliency Officer to fulfill the mission given to the State Resiliency Office to coordinate efforts for disaster planning, recovery, and resiliency between government agencies, first responders and others.

The board will assist and advise the State Resiliency Officer in developing policies to accomplish, at a minimum, the following specific tasks in order to achieve these goals, and will assist the State Resiliency Officer in devising plans and developing procedures which will ensure that agencies and political subdivisions of the state carry out these following specific tasks:

(1) Establish mechanisms to coordinate disaster recovery and resiliency-related programs and activities among state agencies and to encourage intergovernmental as well as cross-sector coordination and collaboration;

(2) Evaluate the state’s role in construction permitting process and identify opportunities to expedite the permitting process post-disaster and for selected types of mitigation and adaptation actions;

(3) Conduct a review of laws and regulations to identify those that create or add to risk, or interfere with the ability to reduce risk or to improve disaster recovery and resiliency;

(4) Conduct an inventory of relevant critical planned activity by state agencies to determine their proposed impact upon disaster recovery and resiliency;

(5) Make recommendations regarding practical steps that can be taken to improve efficiencies, and to pool and leverage resources to improve disaster recovery and resiliency;

(6) Identify, prioritize, and evaluate issues affecting implementation of mitigation and adaptation actions, including, but not limited to, the effect of increasing flood risk in context of zoning and other land use regulations, possible conflicts between public hazard mitigation/adaptation planning and private property interests (e.g. buy-out programs, projects to increase flood storage), develop guidance for cities and towns, real estate professionals, property owners under existing law and regulations; and develop proposals for changes in laws, policies, and regulations, as needed;

(7) Ensure all counties and municipalities are covered by up-to-date Hazard Mitigation Plans and Local Comprehensive Disaster Plans that are consistent with, and coordinated to, the state’s Hazard Mitigation Plans Comprehensive Disaster Plans, and the state’s Flood Resiliency Plan; including, but not limited to, assisting them in developing planning guidance for cities and towns to complete and/or update Hazard Mitigation Plans; providing technical assistance to help counties and municipalities meet these standards; and provide notice to counties and municipalities of funding opportunities to implement projects outlined in their Hazard Mitigation Plans;

(8) Conduct risk assessments, including, but not limited to, examining state highway corridors and associated drainage systems for stormwater inundation, impacts of downed trees, effects on utilities, and comparable facilities; assessment of known stormwater impacts between state highways and municipal drainage systems, options to eliminate or mitigate such impact; a housing vulnerability assessment for structures in riparian zones; a vulnerability assessment of critical infrastructure at the state and municipal levels including hospitals, schools, fire stations, and comparable facilities, and a vulnerability assessment of the state’s historic and cultural resources;

(9) Establish working groups that will conduct assessments for varied sectors of the economy, such as small business, ports and river traffic, agriculture, manufacturing, and tourism; these assessments should address vulnerabilities and economic impacts, options to mitigate impacts, options to improve preparedness, response and recovery, and economic opportunities associated with design, engineering, technological and other skills and capabilities that can improve resilience;

(10) Establish emergency permitting procedures to expedite issuance of state permits following disasters, and develop guidance (model procedures) for political subdivisions to follow; and

(11) Lead long-term recovery planning efforts on behalf of the state in the event of the proclamation of the existence of a state of emergency due to a natural hazards event, or upon a Presidential declaration of a major disaster under Section 406 of the Stafford Act.

All decisions of the board shall be decided by a majority vote of the members.

(e) The State Resiliency Office shall provide adequate staff from that office to ensure the meetings of the board are facilitated, board meeting minutes are taken, records and correspondence kept, and that reports of the board are produced in a timely manner.

(f) Notwithstanding any other provisions of this code:

(1) The meetings of the board are not subject to the provisions of §6-9A-1 et seq. of this code.

(2) The following are exempt from public disclosure under the provisions of §29B-1-1 et seq. of this code:

(A) All deliberations of the board;

(B) The materials, in any medium, including hard copy and electronic, placed in the custody of the board as a result of any of its duties; and

(C) All records of the board, in the possession of the board, and generated by the board, due to their falling under several exceptions to public disclosure including, but not limited to, that for security or disaster recovery plans and risk assessments.

§29-31-3. Authority of State Resiliency Office and State Resiliency Officer.

The State Resiliency Office will coordinate the state’s disaster recovery and resiliency missions and the State Resiliency Officer serves as the primary representative of the Governor in these matters. The State Resiliency Officer shall, upon the order and direction of the Governor, act on behalf of the Governor in the event of the proclamation of the existence of a state of emergency or state of preparedness due to a natural hazards event or upon a Presidential declaration of a major disaster under Section 406 of the Stafford Act. The State Resiliency Officer will assist and advise the Governor on all disaster recovery and resiliency issues and serve as a liaison between the Governor’s office, and all other parties, whether state, federal, public, or private to further the purposes of this article. The State Resiliency Officer will:

(1) Serve as coordinator of all economic and community resiliency planning and implementation efforts, including, but not limited to, flood protection programs and activities in the state;

(2) Develop a new state Flood Resiliency Plan due to the Board no later than June 30, 2024;

 (3) Coordinate an annual review of the state Flood Resiliency Plan and update the plan no less than biennially, with updates due to the board no later than June 30 in even-numbered years;

 (4) Recommend legislation to reduce or mitigate flood damage;

 (5) Report to the Joint Legislative Committee on Flooding at least quarterly;

 (6) Catalog, maintain, and monitor a listing of current and proposed capital expenditures to reduce or mitigate flood damage and other hazards, and other useful and desirable resiliency efforts;

 (7) Coordinate planning of flood projects with federal agencies;

 (8) Improve professional management of flood plains;

 (9) Provide education and outreach on flooding issues to the citizens of this state;

 (10) Establish a single website integrating all agency flood information;

 (11) Monitor federal funds and initiatives that become available for disaster recovery and economic and community resiliency or other flood or hazard mitigation, and to direct expenditures on behalf of the Governor;

 (12) Pursue additional funds and resources to assist not only with long-term recovery efforts but also long-term community and statewide resiliency efforts;

 (13) Coordinate, integrate, and expand planning efforts in the state for hazard mitigation, long-term disaster recovery, and economic diversification;

 (14) Coordinate long-term disaster recovery efforts in response to disasters as they occur;

 (15) Establish and facilitate regular communication between federal, state, local, and private sector agencies, and organizations to further economic and disaster resilience;

 (16) Receive resources, monetary or otherwise, from any other governmental entity and disburse those resources to effectuate the purposes of this article;

 (17) Execute cooperative agreements, where appropriate, between the State Resiliency Office and the federal and/or state governments;

 (18) Contract, where appropriate, on behalf of the State Resiliency Office, with the federal government, its instrumentalities and agencies, any state, territory or the District of Columbia, and its agencies and instrumentalities, municipalities, foreign governments, public bodies, private corporations, partnerships, associations, and individuals;

 (19) Use funds administered by the State Resiliency Office for the maintenance, construction, or reconstruction of capital repair and replacement items as necessary to effectuate the purposes of this article;

 (20) Accept and use funds from the federal government, its instrumentalities and agencies, any state, territory or the District of Columbia, and its agencies and instrumentalities, municipalities, foreign governments, public bodies, private corporations, partnerships, associations, and individuals for the purposes of disaster recovery, hazard mitigation, flood mitigation, flood prevention, and disaster response programs;

 (21) Hire necessary employees at an appropriate salary equivalent to a competitive wage rate;

 (22) Enroll appropriate employees in PERS, PEIA, and workers’ compensation and unemployment programs, or their equivalents: Provided, That the State Resiliency Office, through the receipt of federal and/or state funds, pays the required employer contributions;

 (23) Develop a human resources division that will administer and manage its employees and receive state matching funds as necessary to ensure maximum federal funds are secured;

 (24) Have the ability to secure all other bonding, insurance, or other liability protections necessary for its employees to fulfill their duties and responsibilities;

 (25) Have the ability to draw upon other departments, divisions, agencies, and all other subdivisions of the state for research and input in fulfilling the requirements of this article, and its requests are to have priority over other such requests;

 (26) Participate in the interdepartmental transfer of permanent state employees, as if he or she were a department secretary, under the provisions of §5F-2-7 of this code.

 (27) Notwithstanding any other provision of this code to the contrary, acquire legal services that are necessary, including representation of the board, its employees, and officers before any court or administrative body from the office of the Attorney General, who shall provide such legal assistance and representation, and

 (28) Take all other actions necessary and proper to effectuate the purposes of this article.

The office shall have any other additional authority, duties, and responsibilities as prescribed by the Governor to effectuate the purposes of this article. Due to the at-will employment relationship with the office, its employees may not avail themselves of the state grievance procedure as set forth in §6C-2-1 et seq. of this code.

§29-31-4. Reporting to the Joint Legislative Committee on Flooding.

The State Resiliency Officer shall report, at a minimum of quarterly, to the Joint Legislative Committee on Flooding, created pursuant to §4-15-1 et seq. of this code, in sufficient detail for the committee to be aware of the activities of the office to assure progress toward reducing and mitigating flood damage within this state while respecting and complying with the Takings Clause of the United States Constitution, the West Virginia Constitution, and related precedential court opinions, and to develop legislative recommendations and shall submit an annual report to the committee by December 31 of each year, along with any recommended legislation, budget requests and a summary of the activities of the office for the previous year.

§29-3-5e. Courtesy certification of firefighters in surrounding states to serve as volunteer firefighter.

[Repealed.]

§29-3-5f. Fire Service Equipment and Training Fund; creation of fire service equipment and training grant.

[Repealed.]

§29-22-15a. Option for winners of draw games to remain anonymous.

(a) A person entitled to collect a gross prize equal to or exceeding $1 million from a winning West Virginia State Lottery draw game ticket may remain anonymous: Provided, That such anonymity only applies to disclosure by the West Virginia State Lottery, and its employees and officers, of the name, personal contact information, and likeness of the person so entitled: Provided, however, That this provision shall not be construed to prevent or impede the lawful disclosure of such information in any court of record or administrative forum pursuant to lawful legal process or disclosure of such information to any taxing agency of any local, state, or federal government or any local, state, or federal agency lawfully entitled to such information, including agencies of another state and lottery agencies of states participating in a multistate or multijurisdictional lottery: Provided further, That the name, personal contact information, and likeness of the person so entitled shall not be subject to disclosure under the Freedom of Information Act set forth in §29B-1-1 et seq. of this code.

(b) If the person entitled to collect a gross prize equal to or exceeding $1 million from a winning draw game ticket desires to remain anonymous, he or she shall contact the State Lottery Director in writing or appear at the state lottery headquarters in person, concerning his or her desire to remain anonymous: Provided, That such a request only permits the person’s name, personal contact information, and likeness to remain anonymous. The State Lottery Director may provide by legislative, procedural, or interpretive rule such administrative and timeliness requirements for submission of a request for anonymity as may be necessary or convenient, promulgation of which is hereby authorized.

(1) At the time of his or her request to remain anonymous, the person shall provide his or her contact information, including any personal telephone number, residential address, electronic mail address, and a properly executed Internal Revenue Service Form W-2G.

(2) When a group forms a lottery pool to purchase lottery tickets and the lottery pool wins the prize, only those members of the lottery pool that each, individually, win a gross prize equal to or exceeding $1 million, or who, as a result of their lottery pool membership, are entitled to a share of a gross prize equal to or exceeding $1 million or more, may elect to remain anonymous.

(c) Any request to remain anonymous may be made in writing, by certified mail addressed to the West Virginia State Lottery Director, P.O. Box 2067, Charleston, West Virginia 25327, by electronic mail to an email address that is to be established by the West Virginia State Lottery prior to the effective date of this section, or in person at the state lottery headquarters. Once established, the secure email address shall be posted on the West Virginia Lottery’s website prior to the effective date of this section: Provided, That notwithstanding other provisions of this subsection, the West Virginia State Lottery Director may prescribe by emergency, legislative, procedural, or interpretive rule such transmittal, documentation, timing, and administrative requirements as may be necessary or convenient for submission and processing of requests for anonymity, and such rule requirements and conditions may differ from, and shall supersede, those set forth in this subsection.

(d) Upon receiving a request to remain anonymous, the director shall contact the person requesting anonymity and schedule an appointment to meet at any county, regional, or state lottery office to confirm the winning number and to otherwise make arrangements to protect the anonymity of the requesting person.

(e)The requirements of this section enacted in 2018 are effective on January 1, 2019. The amendments to this section enacted in 2019 shall take effect upon passage and apply to prizes awarded on and after that date.

(f) Definitions. — For purposes of this section:

(1) Annuity. — The term "annuity" means periodic payments of a lottery prize which are payable over a period greater than one year and which are treated under Section 72 of the Internal Revenue Code, as defined in §11-21-9 of this code, as amounts received as an annuity, whether or not the periodic payments are variable in amount.

(2) Gross prize. — The term "gross prize" means the value, whether in money or other property, proceeding from and resulting from a lottery win, without any deduction for gaming losses, the cost of ticket purchases, the amount paid to obtain a chance to win, the amount paid for eligibility to play, or eligibility for selection as a prize recipient or any expenses or reductions of any kind. Gross prize includes amounts received whether paid in cash, cash equivalents, or property, or any noncash form, including real property, personal property, and services. Real property, personal property, and services must be valued at fair market value for purposes of this section. Gross prize includes amounts paid in a lump sum or structured as an annuity paid over time or as installment payments.

(A) A gross prize paid or payable as an annuity or a stream of installment payments shall be valued as the total aggregate amount of annuity payments or installment payments to be received over the life of the annuity or stream of installment payments, without discount for present value or the time value of money or payments.

(B) In the case of annuities or a stream of installment payments payable for a fixed period of time, the annuity or a stream of installment payments shall, for the limited purpose of determining the $1 million threshold amount specified in subsection (a) of this section, be valued over such fixed period.

(C) In the case of annuities or a stream of installment payments payable for life or for an indefinite period of time of 30 years or more, the annuity or stream of installment payments shall, for the limited purpose of determining the $1 million threshold amount specified in §29-22-15a(a) of this code, be valued as if it were paid over a fixed period of 30 years.

(D) In the case of annuities or a stream of installment payments payable for an indefinite but limited period of time of less than 30 years, the annuity or stream of installment payments shall, for the limited purpose of determining the $1 million threshold amount specified in §29-22-15a(a) of this code, be valued as if it were paid over a fixed period equal to the maximum period of years, or period of time over which it may be paid.

(E) In the case of an annuity or a stream of installment payments, payments of which are to be adjusted by an inflation factor or other factor over time, the annuity or stream of installment payments shall, for the limited purpose of determining the $1 million threshold amount specified in §29-22-15a(a) of this code, be valued at the aggregate amount of payments to be received over the life of the annuity or stream of installment payments as if all payments are equal to the first payment, without adjustment for inflation or other factors.

(3) Lottery pool. — The term "lottery pool" means a group of lottery players who pool their money to buy lottery tickets, and who purchase tickets for a single drawing.

§29-22D-1. Short title.

This article shall be known and may be cited as the West Virginia Lottery Sports Wagering Act.

§29-22D-2. State authorization of sports wagering at licensed racetrack facilities and historic resort hotel; legislative findings and declarations.

(a) Operation of West Virginia Lottery sports wagering. — Notwithstanding any provision of law to the contrary, the operation of sports wagering and ancillary activities are only lawful when conducted in accordance with the provisions of this article and rules of the commission.

(b) Legislative findings. —

(1) The Legislature finds that the operation of the four racetracks and the historic resort hotel in this state play a critical role in the economy of this state, and such constitutional lotteries are rightfully authorized as state enterprises consistent with the rights and powers granted to the states under the Tenth Amendment of the United States Constitution. The federal government is a government of limited and enumerated powers, and powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved for the states and its respective citizens.

(2) The Legislature finds that section 36, article VI of the Constitution of the State of West Virginia grants the state the exclusive right to lawfully own and operate a lottery in this state. Authorization of wagering on any constitutional lottery within West Virginia is within the state’s sovereign rights as a state to act in the best interest of its citizens.

(3) The Legislature finds that it is in the best interests of the State of West Virginia for the state to operate a lottery in the form of sports wagering and that it is the intent of the Legislature to authorize sports wagering when federal law is enacted or repealed, or a federal court decision is issued that permits a state to regulate sports wagering, as such power is reserved to the states.

(4) The Legislature finds that illegal sports wagering channels operating throughout the United States pose a critical threat to the safety and welfare of the citizens of West Virginia and that creating civil and criminal penalties to prosecute illegal operators, while transferring this black market demand into a secure and highly regulated environment, will protect the public and positively benefit state revenues and the state’s economy.

(5) The Legislature finds that in order to protect residents of this state who wager on sports or other events and to capture revenues and create jobs generated from sports wagering, it is in the best interests of this state and its citizens to regulate this activity by authorizing and establishing a secure, responsible, fair, and legal system of sports wagering immediately, when the federal ban on sports wagering is lifted.

(6) The Legislature finds that the most effective and efficient manner in which the state can operate and regulate the forms of lottery authorized by the provisions of this article is to limit the number of authorized operators to those who are licensed, pursuant to the provisions of §29-22A-1 et seq. of this code, and to facilities licensed to operate video lottery terminals, pursuant to the provisions of §29-25-1 et seq. of this code.

(7) The Legislature finds that the granting of licenses pursuant to the provisions of this article, while maintaining all ownership rights and exercising control through strict regulation of all West Virginia Lottery sports wagering authorized by the provisions of this article, constitutes an appropriate exercise by the Legislature of the power granted it by the provisions of section 36, article VI of the Constitution of the State of West Virginia.

(8) The Legislature finds that the operation of West Virginia Lottery sports wagering at racetracks, licensed pursuant to the provisions of §29-22A-1 et seq. of this code, and at a historic resort hotel, licensed pursuant the provisions of §29-25-1 et seq. of this code, serves to protect, preserve, promote, and enhance the tourism industry of the state as well as the general fiscal wellbeing of the state and its subdivisions.

§29-22D-3. Definitions.

For the purposes of this article, the following terms have the meanings ascribed to them in this section:

(1) “Adjusted gross sports wagering receipts” means an operator’s gross sports wagering receipts from West Virginia Lottery sports wagering, less winnings paid to wagerers in such games.

(2) “Collegiate sport or athletic event” means a sport or athletic event offered or sponsored by, or played in connection with, a public or private institution that offers educational services beyond the secondary level.

(3) “Commission” or “State Lottery Commission” means the West Virginia Lottery Commission, created by §29-22-1 et seq. of this code.

(4) “Director” means the Director of the West Virginia State Lottery Commission, appointed pursuant to §29-22-6 of this code.

(5) “E-sports event” means leagues, competitive circuits, tournaments, or similar competitions where individuals or teams play video games, typically for spectators, either in person or online, for the purpose of prizes, money, or entertainment.

(6) “Gaming equipment” or “sports wagering equipment” means any mechanical, electronic, or other device, mechanism, or equipment, and related supplies used or consumed in the operation of West Virginia Lottery sports wagering at a licensed gaming facility including, but not limited to, a kiosk installed to accept sports wagers.

(7) “Gaming facility” means a designated area on the premises of an existing historic resort hotel, licensed under §29-25-1 et seq. of this code, to operate video lottery and table games or the facility of an entity authorized to operate racetrack video lottery machines pursuant to §29-22A-1 et seq. of this code.

(8) “Government” means any governmental unit of a national, state, or local body exercising governmental functions, other than the United States government.

(9) “Gross sports wagering receipts” means the total gross receipts received by a licensed gaming facility from sports wagering.

(10) “License” means any license applied for or issued by the commission under this article including, but not limited to:

(A) A license to act as agent of the commission in operating West Virginia Lottery sports wagering at a licensed gaming facility (operator license or West Virginia Lottery sports wagering license);

(B) A license to supply a gaming facility licensed under this article to operate sports wagering with sports wagering equipment or services necessary for the operation of sports wagering (supplier license);

(C) A license to be employed at a racetrack or gaming facility licensed under this article to operate West Virginia Lottery sports wagering when the employee works in a designated gaming area that has sports wagering or performs duties in furtherance of or associated with the operation of sports wagering at the licensed gaming facility (occupational license); or

(D) A license to provide management services under a contract to a gaming facility licensed under this article to operate sports wagering (management services provider license).

(11) “Licensed gaming facility” means a designated area on the premises of an existing historic resort hotel, pursuant to §29-25-1 et seq. of this code, or the facility of an entity authorized to operate racetrack video lottery machines, pursuant to §29-22A-1 et seq. of this code licensed under this article to conduct West Virginia Lottery sports wagering.

(12) “Lottery” means the public gaming systems or games regulated, controlled, owned, and operated by the State Lottery Commission in the manner provided by general law, as provided in this article, §29-22-1 et seq., §29-22A-1 et seq., §29-22B-1 et seq., §29-22C-1 et seq., and §29-25-1 et seq. of this code.

(13) “National criminal history background check system” means the criminal history record system maintained by the Federal Bureau of Investigation based on fingerprint identification or any other method of positive identification.

(14) “Operator” means a licensed gaming facility which has elected to operate a sports pool and other authorized West Virginia Lottery sports wagering activities.

(15) “Professional sport or athletic event” means an event at which two or more persons participate in sports or athletic events and receive compensation in excess of actual expenses for their participation in such event.

(16) “Sports event” or “sporting event” means any professional sport or athletic event, any collegiate sport or athletic event, motor race event, e-sports event, or any other special event authorized by the commission under this article.

(17) “Sports pool” means the business of accepting wagers on any sports event by any system or method of wagering.

(18) “Sports wagering account” means a financial record established by a licensed gaming facility for an individual patron in which the patron may deposit and withdraw funds for sports wagering and other authorized purchases, and to which the licensed gaming facility may credit winnings or other amounts due to that patron or authorized by that patron.

(19) “Sports wagering agreement” means a written agreement between the commission and one or more other governments whereby persons who are physically located in a signatory jurisdiction may participate in sports wagering conducted by one or more operators licensed by the signatory governments.

(20) “Sports wagering fund” means the special fund in the State Treasury created in §29-22D-17 of this code.

(21) “Supplier” means a person that requires a supplier license to provide a sports wagering licensee with goods or services to be used in connection with operation of West Virginia Lottery sports wagering.

(22) “Wager” means a sum of money or thing of value risked on an uncertain occurrence.

(23) “West Virginia Lottery sports wagering” or “sports wagering” means the business of accepting wagers on sporting events, and other events, the individual performance statistics of athletes in a sporting event or other events, or a combination of any of the same by any system or method of wagering approved by the commission including, but not limited to, mobile applications and other digital platforms that utilize communications technology to accept wagers originating within this state. The term includes, but is not limited to, exchange wagering, parlays, over-under, moneyline, pools, and straight bets. The term does not include:

(A) Pari-mutuel betting on the outcome of horse or dog races authorized by §19-23-12a and §19-23-12d of this code;

(B) Lottery games of the West Virginia State Lottery authorized by §29-22-1 et seq. of this code;

(C) Racetrack video lottery authorized by §29-22A-1 et seq. of this code;

(D) Limited video lottery authorized by §29-22B-1 et seq. of this code;

(E) Racetrack table games authorized by §29-22C-1 et seq. of this code;

(F) Video lottery and table games authorized by §29-25-1 et seq. of this code; and

(G) Daily Fantasy Sports (DFS).

(24) “West Virginia Lottery sports wagering license” means authorization granted under this article by the commission to a gaming facility that is already licensed under §29-22A-1 et seq. or §29-25-1 et seq. of this code, which permits the gaming facility as an agent of the commission to operate West Virginia Lottery sports wagering in one or more designated areas or in one or more buildings owned by the licensed gaming facility on the grounds where video lottery is conducted by the licensee or through any other authorized platform developed by the gaming facility. This term is synonymous with “operator’s license”.

§29-22D-4. Commission duties and powers.

(a) In addition to the duties set forth elsewhere in this article, §29-22-1 et seq., §29-22A-1 et seq., §29-22B-1 et seq., §29-22C-1 et seq., and §29-25-1 et seq. of this code, the commission shall have the authority to regulate sports pools and the conduct of sports wagering under this article.

(b) The commission shall examine the regulations implemented in other states where sports wagering is conducted and shall, as far as practicable, adopt a similar regulatory framework through promulgation of rules and regulations.

(c) The commission has the authority, pursuant to §29A-1-1, et seq. and §29A-3-1, et seq. of this code, to promulgate or otherwise enact any legislative, interpretive, and procedural rules the commission considers necessary for the successful implementation, administration, and enforcement of this article. Rules proposed by the commission before December 1, 2018, may be promulgated as emergency rules pursuant to §29A-3-15 of this code.

(1) Regulations promulgated by the commission may include, but are not limited to, those governing the acceptance of wagers on a sports event or a series of sports events; maximum wagers which may be accepted by an operator from any one patron on any one sports event; type of wagering tickets which may be used; method of issuing tickets; method of accounting to be used by operators; types of records which shall be kept; use of credit and checks by patrons; type of system for wagering; protections for patrons placing wagers; and promotion of social responsibility, responsible gaming, and inclusion of the statement, “If you or someone you know has a gambling problem and wants help, call 1-800 GAMBLER,” in every designated area approved for sports wagering and on any mobile application or other digital platform used to place wagers.

(2) The commission shall establish minimum internal control standards (MICS) and approve minimum internal control standards proposed by licensed operators for administration of sports wagering operations, wagering equipment and systems, or other items used to conduct sports wagering, as well as maintenance of financial records and other required records.

(d) The commission shall determine the eligibility of a person to hold or continue to hold a license, shall issue all licenses, and shall maintain a record of all licenses issued under this article. The commission may accept applications, evaluate qualifications of applicants, and undertake initial review of licenses prior to promulgation of emergency rules upon the effective date of this article.

(e) The commission shall levy and collect all fees, surcharges, civil penalties, and weekly tax on adjusted gross sports wagering receipts imposed by this article, and deposit all moneys into the sports wagering fund, except as otherwise provided under this article.

(f) The commission may sue to enforce any provision of this article or any rule of the commission by civil action or petition for injunctive relief.

(g) The commission may hold hearings, administer oaths, and issue subpoenas or subpoenas duces tecum: Provided, That all hearings shall be conducted pursuant to the provisions of the State Administrative Procedures Act, §29A-2-1, et seq. of this code and the Lottery Administrative Appeal Procedures, W.Va. CSR §179-2-1, et seq.

(h) The commission may exercise any other powers necessary to effectuate the provisions of this article and the rules of the commission.

§29-22D-5. Licenses required.

(a) The commission shall not grant a license required under this article to any applicant until the commission has published the notice in the State Register, as required by §29-22D-15(f) of this code.

(b) No person may engage in any activity in connection with West Virginia Lottery sports wagering in this state unless all necessary licenses have been obtained in accordance with this article and rules of the commission. Four types of licenses: (1) Operator; (2) supplier; (3) management services provider; and (4) occupational—are issued pursuant to this article, and no person or entity may engage in any sports wagering operation or activity without first obtaining the appropriate license.

(c) The commission may not grant a license until it determines that each person who has control of the applicant meets all qualifications for licensure. The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company, or subsidiary company of the applicant who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation; this does not include any bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business;

(2) Each person associated with a non-corporate applicant who directly or indirectly holds a beneficial or proprietary interest in the applicant’s business operation, or who the commission otherwise determines has the ability to control the applicant; and

(3) Key personnel of an applicant, including any executive, employee, or agent, having the power to exercise significant influence over decisions concerning any part of the applicant’s business operation.

(d) License application requirements. — All applicants for any license issued under this article shall submit an application to the commission in the form the commission requires and submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require additional background checks on licensees when they apply for annual license renewal, and any applicant convicted of any disqualifying offense shall not be licensed.

(e) Each sports wagering licensee, licensed supplier, or a licensed management services provider shall display the license conspicuously in its place of business or have the license available for inspection by any agent of the commission or any law-enforcement agency.

(f) Each holder of an occupational license shall carry the license and have some indicia of licensure prominently displayed on his or her person when present in a licensed gaming facility at all times, in accordance with the rules of the commission.

(g) Each person licensed under this article shall give the commission written notice within 30 days of any change to any information provided in the licensee’s application for a license or renewal.

(h) No commission employee may be an applicant for any license issued under this article nor may any employee of any such licensee directly or indirectly hold an ownership or a financial interest in any West Virginia Lottery sports wagering license.

§29-22D-6. Operator license; West Virginia sports wagering operators.

(a) In addition to the casino games permitted pursuant to the provisions of §29-22A-1 et seq., §29-22C-1 et seq., and §29-25-1 et seq. of this code, a licensed gaming facility may operate West Virginia Lottery sports wagering upon the approval of the commission, and the commission shall have the general responsibility for the implementation of this article and all other duties specified in §29-22-1 et seq., §29-22A-1 et seq., §29-22C-1 et seq., and §29-25-1 et seq. of this code, the provisions of this article, and applicable regulations.

(b) All sports wagering authorized by this article shall be West Virginia Lottery games owned by the State of West Virginia. An operator license granted by the commission pursuant to this article grants licensees lawful authority to conduct West Virginia Lottery sports wagering within the terms and conditions of the license and any regulations promulgated under this article.

(c) Sports wagering licenses. — The commission may issue up to five licenses to operate West Virginia Lottery sports wagering in accordance with the provisions of this article. No more than five licenses to operate a gaming facility with West Virginia Lottery sports wagering shall be permitted in this state.

(d) Grant of license. — Upon application by a gaming facility and payment of a $100,000 application fee, the commission shall immediately grant a West Virginia Lottery sports wagering license to an operator that provides for the right to conduct West Virginia Lottery sports wagering: Provided, That the applicant must hold a valid racetrack video lottery license issued by the commission, pursuant to §29-22A-1 et seq. of this code, or a valid license to operate a gaming facility, issued by the commission pursuant to §29-25-1 et seq. of this code, and otherwise meet the requirements for licensure under the provisions of this article and the rules of the commission. This license shall be issued for a five-year period, and may be renewed for five-year periods upon payment of a $100,000 renewal fee, as long as an operator continues to meet all qualification requirements.

(e) Location. — A West Virginia Lottery sports wagering license authorizes the operation of West Virginia Lottery sports wagering at locations and through any mobile application or other digital platforms approved by the commission.

(f) Management service contracts. —

(1) Approval. — A West Virginia Lottery sports wagering licensee may not enter into any management services contract that would permit any person other than the licensee to act as the commission’s agent in operating West Virginia Lottery sports wagering unless the management service contract: (A) Is with a person licensed under this article to provide management services; (B) is in writing; and (C) has been approved by the commission.

(2) Material change. — The West Virginia Lottery sports wagering licensee shall submit any material change in a management services contract, previously approved by the commission, to the commission for its approval or rejection before the material change may take effect.

(3) Other commission approvals and licenses. — The duties and responsibilities of a management services provider under a management services contract may not be assigned, delegated, subcontracted, or transferred to a third party without the prior approval of the commission. Third parties must be licensed as a management services provider under this article before providing services.

(g) Expiration date and renewal. —

(1) A licensed operator shall submit to the commission such documentation or information as the commission may require demonstrating to the satisfaction of the director that the licensee continues to meet the requirements of the law and regulations. Required documentation or information shall be submitted no later than five years after issuance of an operator license and every five years thereafter, or within lesser periods based on circumstances specified by the commission.

(2) If the licensee fails to apply to renew its license issued pursuant to §29-22A-1 et seq. or §29-25-1 et seq. of this code prior to expiration, the commission shall renew its license under this article at the time the expired license is renewed as long as the licensee was operating in compliance with applicable requirements in the preceding license year.

(h) Surety bond. — A West Virginia Lottery sports wagering licensee shall execute a surety bond in an amount and in the form approved by the commission, to be given to the state, to guarantee the licensee faithfully makes all payments in accordance with the provisions of this article and rules promulgated by the commission.

(i) Audits. — Upon application for a license and annually thereafter, a West Virginia Lottery sports wagering licensee shall submit to the commission an annual audit of the financial transactions and condition of the licensee’s total operations prepared by a certified public accountant in accordance with generally accepted accounting principles and applicable federal and state laws.

(j) Commission office space. — A West Virginia Lottery sports wagering licensee shall provide suitable office space at the sports wagering facility, at no cost, for the commission to perform the duties required of it by this article and the rules of the commission.

(k) Facility qualifications. — A West Virginia Lottery sports wagering licensee shall demonstrate that its gaming facility with West Virginia Lottery sports wagering will: (1) Be accessible to disabled individuals, in accordance with applicable federal and state laws; (2) be licensed in accordance with this article, and all other applicable federal, state, and local laws; and (3) meet any other qualifications specified in rules adopted by the commission. Notwithstanding any provision of this code or any rules promulgated by the Alcohol Beverage Control Commissioner to the contrary, vacation of the premises after service of beverages ceases is not required for any licensed gaming facility.

§29-22D-7. Management services providers; license requirements.

(a) License. — The holder of a license to operate West Virginia Lottery sports wagering may contract with an entity to conduct that operation in accordance with the regulations of the commission. That entity shall obtain a license as a management services provider prior to the execution of any such contract, and such license shall be issued pursuant to the provisions of this article and any regulations promulgated by the commission.

(b) License qualifications and fee. — Each applicant for a management services provider license shall meet all requirements for licensure and pay a nonrefundable license and application fee of $1,000. The commission may adopt rules establishing additional requirements for an authorized management services provider. The commission may accept licensing by another jurisdiction, that it specifically determines to have similar licensing requirements, as evidence the applicant meets authorized management services provider licensing requirements.

(c) Renewal. — Management services provider licenses shall be renewed annually to any licensee who continues to be in compliance with all requirements and who pays the annual renewal fee of $1,000.

(d) Any entity or individual who shares in revenue, including any affiliate operating under a revenue share agreement, shall be licensed under this section.

§29-22D-8. Suppliers; license requirements.

(a) Supplier license. —

(1) The commission may issue a supplier license to a person to sell or lease sports wagering equipment, systems, or other gaming items necessary to conduct sports wagering, and offer services related to such equipment or other gaming items to a West Virginia Lottery sports wagering licensee while the license is active. The commission may establish the conditions under which the commission may issue provisional licenses, pending completion of final action on an application.

(2) The commission may adopt rules establishing additional requirements for a West Virginia Lottery sports wagering supplier and any system or other equipment utilized for wagering. The commission may accept licensing by another jurisdiction, that it specifically determines to have similar licensing requirements, as evidence the applicant meets West Virginia Lottery sports wagering supplier licensing requirements.

(b) Supplier specifications. — An applicant for a supplier license shall demonstrate that the equipment, system, or services that the applicant plans to offer to the sports wagering licensee conform to standards established by the commission and applicable state law. The commission may accept approval by another jurisdiction, that it specifically determines have similar equipment standards, as evidence the applicant meets the standards established by the commission and applicable state law.

(c) License application and renewal fees. — Applicants shall pay to the commission a nonrefundable license and application fee in the amount of $1,000. After the initial one-year term, the commission shall renew supplier licenses annually thereafter. Renewal of a supplier license will be granted to any renewal applicant who has continued to comply with all applicable statutory and regulatory requirements, upon submission of the commission issued renewal form and payment of a $1,000 renewal fee.

(d) Inventory. — A licensed sports wagering supplier shall submit to the commission a list of all sports wagering equipment and services sold, delivered to, or offered to a West Virginia Lottery sports wagering licensee in this state, as required by the commission, all of which must be tested and approved by an independent testing laboratory approved by the commission. A sports wagering licensee may continue to use supplies acquired from a licensed sports wagering supplier, even if a supplier’s license expires or is otherwise cancelled, unless the commission finds a defect in the supplies.

§29-22D-9. Occupational licenses.

(a) All persons employed to be engaged directly in sports wagering-related activities, or otherwise conducting or operating sports wagering, shall be licensed by the commission and maintain a valid occupational license at all times and the commission shall issue such license to be employed in the operation of sports wagering to a person who meets the requirements of this section.

(b) An occupational license to be employed by a gaming facility with West Virginia Lottery sports wagering permits the licensee to be employed in the capacity designated by the commission while the license is still active. The commission may establish, by rule, job classifications with different requirements to recognize the extent to which a particular job has the ability to impact the proper operation of West Virginia Lottery sports wagering.

(c) Application and fee. — Applicants shall submit any required application forms established by the commission and pay a nonrefundable application fee of $100. The fee may be paid on behalf of an applicant by the employer.

(d) Renewal fee and form. — Each licensed employee shall pay to the commission an annual license fee of $100 by June 30 of each year. The fee may be paid on behalf of the licensed employee by the employer. In addition to a renewal fee, each licensed employee shall annually submit a renewal application on the form required by the commission.

§29-22D-10. License prohibitions.

(a) The commission may not grant any license, pursuant to the provisions of this article, if evidence satisfactory to the commission exists that the applicant:

(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 gaming operation, or had a license revoked by any governmental authority responsible for regulation of gaming activities;

(3) Has been convicted of a gambling-related offense, a theft, or fraud offense, or has otherwise demonstrated, either by a police record or other satisfactory evidence, a lack of respect for law and order: Provided, That the Lottery Commission shall apply §29-22D-10(c) and §29-22D-10(d) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license being sought; or

(4) Is a company or individual who has been directly employed by any illegal or offshore book that serviced the United States, or otherwise accepted black market wagers from individuals located in the United States.

(b) The commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license:

(1) If the applicant or licensee has not demonstrated to the satisfaction of the commission financial responsibility sufficient to adequately meet the requirements of the proposed enterprise;

(2) If the applicant or licensee is not the true owner of the business or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in the business; or

(3) If the applicant or licensee is a corporation which sells more than five percent of a licensee’s voting stock, or more than five percent of the voting stock of a corporation which controls the licensee, or sells a licensee’s assets, other than those bought and sold in the ordinary course of business, or any interest in the assets, to any person not already determined by the commission to have met the qualifications of a licensee under this article.

(c) The Lottery Commission may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the Lottery Commission shall consider at a minimum:

(1) The nature and seriousness of the crime for which the individual was convicted;

(2) The passage of time since the commission of the crime;

(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(4) Any evidence of rehabilitation or treatment undertaken by the individual.

(d) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the Lottery Commission shall permit the applicant to apply for initial licensure if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the Lottery Commission.

(e) An individual with a criminal record who has not previously applied for licensure may petition the Lottery Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the Lottery Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Lottery Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Lottery Commission may charge a fee to recoup its costs for each petition.

(f) In the case of an applicant for a sports wagering license, the commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if an applicant has not met the requirements of this section or any other provision of this article.

§29-22D-11. Sports wagering house rules; posting of rules.

(a) Each operator shall adopt comprehensive house rules for game play governing sports wagering transactions with its patrons. These comprehensive rules will be published as part of the minimum internal control standards. The rules shall specify the amounts to be paid on winning wagers and the effect of schedule changes. House rules shall be approved by the commission prior to implementation.

(b) The house rules, together with any other information the commission deems appropriate, shall be conspicuously displayed and included in the terms and conditions of the sports wagering system. Copies shall be made readily available to patrons.

(c) The commission shall license and require the display of West Virginia Lottery game logos on game surfaces, other gaming items, and any locations the commission considers appropriate.

§29-22D-12. Operator duties; sports wagering operations at a licensed gaming facility.

(a) General. — All operators licensed under this article to conduct West Virginia Lottery sports wagering shall:

(1) Employ a monitoring system utilizing software to identify non-normal irregularities in volume or odds swings which could signal suspicious activities that should require further investigation which shall be immediately reported and investigated by the commission. System requirements and specifications shall be developed according to industry standards and implemented by the commission as part of the minimum internal control standards;

(2) Promptly report to the commission any facts or circumstances related to the operation of a West Virginia Lottery sports wagering licensee which constitute a violation of state or federal law and immediately report any suspicious betting over a threshold set by the operator that has been approved by the commission to the appropriate state or federal authorities;

(3) Conduct all sports wagering activities and functions in a manner which does not pose a threat to the public health, safety, or welfare of the citizens of this state and does not adversely affect the security or integrity of the West Virginia Lottery;

(4) Hold the commission and this state harmless from and defend and pay for the defense of any and all claims which may be asserted against a licensee, the commission, the state, or employees thereof, arising from the licensee’s actions or omission while acting as an agent of the commission operating West Virginia Lottery sports wagering pursuant to this article;

(5) Assist the commission in maximizing sports wagering revenues; and

(6) Keep current in all payments and obligations to the commission.

(b) Duties. — All West Virginia Lottery sports wagering licensees shall:

(1) Acquire West Virginia Lottery sports wagering gaming equipment by purchase, lease, or other assignment and provide a secure location for the placement, operation, and play of sports wagering gaming equipment;

(2) Prevent any person from tampering with or interfering with the operation of any West Virginia Lottery sports wagering;

(3) Ensure that West Virginia Lottery sports wagering conducted at a gaming facility is within the sight and control of designated employees of the licensee and such wagering at the facility or otherwise available by the licensee is conducted under continuous observation by security equipment in conformity with specifications and requirements of the commission;

(4) Ensure that West Virginia Lottery sports wagering occurs only in the specific locations within designated gaming areas approved by the commission or using a commission approved mobile application or other digital platform that utilizes communications technology to accept wagers originating within this state, or on a sports wagering device. West Virginia Lottery sports wagering shall only be relocated or offered in additional authorized manners in accordance with the rules of the commission;

(5) Maintain sufficient cash and other supplies to conduct sports wagering at all times; and

(6) Maintain daily records showing the gross sports wagering receipts and adjusted gross sports wagering receipts of the licensee from West Virginia Lottery sports wagering and shall timely file with the commission any additional reports required by rule or by other provisions of this code.

§29-22D-13. Posting of betting limits.

A sports wagering licensee shall conspicuously post a sign at each West Virginia Lottery sports wagering location indicating the minimum and maximum wagers permitted at that location and shall comply with the same.

§29-22D-14. Sports wagering agreements with other governments.

(a) On behalf of the State of West Virginia, the commission is authorized to:

(1) Enter into sports wagering agreements with other governments whereby persons who are physically located in a signatory jurisdiction may participate in sports wagering conducted by one or more operators licensed by the signatory governments; and

(2) Take all necessary actions to ensure that any sports wagering agreement entered into, pursuant to this section, becomes effective.

(b) The regulations adopted by the commission pursuant to this section may include provisions prescribing:

(1) The form, length, and terms of an agreement entered into by the commission and another government, including, but not limited to, provisions relating to how: Taxes are to be treated by this state and another government; revenues are to be shared and distributed; and disputes with patrons are to be resolved;

(2) The information to be furnished to the commission by a government that proposes to enter into an agreement with this state pursuant to this section;

(3) The information to be furnished to the commission to enable the commission and director to carry out the purposes of this section;

(4) The manner and procedure for hearings conducted by the commission pursuant to this section, including any special rules or notices; and

(5) The information required to be furnished to the commission to support any recommendations made to the commission, pursuant to this section.

(c) The commission may not enter into any sports wagering agreement, pursuant to this section, unless the agreement includes provisions that:

(1) Account for the sharing of revenues by this state and another government;

(2) Permit the effective regulation of sports wagering by this state, including provisions relating to licensing of persons, technical standards, resolution of disputes by patrons, requirements for bankrolls, enforcement, accounting, and maintenance of records;

(3) Require each government that is a signatory to the agreement to prohibit operators of sports wagering, management or other service providers, or suppliers, manufacturers or distributors of sports wagering systems from engaging in any activity permitted by the sports wagering agreement unless they are licensed in this state or in a signatory jurisdiction with similar requirements approved by the commission;

(4) No variation from the requirements of the sports wagering agreement is permitted for any signatory government without a lack of opposition by this state and all signatory governments;

(5) Prohibit any subordinate or side agreements among any subset of governments that are signatories to the agreement unless it relates exclusively to the sharing of revenues; and

(6)  Require the government to establish and maintain regulatory requirements governing sports wagering that are consistent with the requirements of this state in all material respects if the sports wagering agreement allows persons physically located in this state to participate in sports wagering conducted by another government or an operator licensed by another government. 

§29-22D-15. Authorization of sports wagering in this state; requirements.

(a) An operator shall accept wagers on sports events and other events authorized under this article from persons physically present in a licensed gaming facility where authorized sports wagering occurs, or from persons not physically present who wager by means of electronic devices. A person placing a wager shall be at least 21 years of age.

(b) An operator may accept wagers from an individual physically located within this state using a mobile or other digital platform or a sports wagering device, approved by the commission, through the patron’s sports wagering account.

(c) An operator may accept wagers from an individual physically located in a state or jurisdiction with which the commission has entered into a sports wagering agreement using a mobile or other digital platform or a sports wagering device through the patron’s sports wagering account, so long as the device or platform is approved by the commission and all other requirements of the agreement are satisfied.

(d) The commission or operator may ban any person from entering a gaming area of a gaming facility conducting sports wagering or the grounds of a gaming facility licensed under this article or from participating in the play or operation of any West Virginia Lottery sports wagering. A log of all excluded players shall be kept by the commission and each licensee, and no player on the commission’s exclusion list or the licensed operator’s exclusion list shall wager on any West Virginia Lottery sports wagering under this article.

(e) The commission shall promulgate regulations implementing the provisions of §29-22D-15(a) of this code by interpretive rule and minimum internal control standards.

(f) The commission shall, when a federal law is enacted or repealed or when a federal court decision is issued that permits a state to regulate sports wagering, publish a notice in the State Register notifying the public of the enactment or repeal of federal law or of the issuance of such court decision. The commission shall not be authorized to conduct sports wagering in this state until the notice prescribed in this subsection is published in the State Register.

(g) No licensed gaming facility employee may place a wager on any sports wagering at the employer’s facility or through any other mobile application or digital platform of their employer.

(h) No commission employee may knowingly wager or be paid any prize from any wager placed at any licensed gaming facility with West Virginia Lottery sports wagering within this state or at any facility outside this jurisdiction that is directly or indirectly owned or operated by a sports wagering licensee.

§29-22D-16. Sports wagering revenues; accounting for the state’s share of revenue imposed for the privilege of offering West Virginia Lottery sports wagering; limitation of other taxes; recoupment for improvements.

(a) Imposition and rate of assessment. — For the privilege of holding a license to operate sports wagering under this article, the state shall impose and collect ten percent of the licensee’s adjusted gross sports wagering receipts from the operation of West Virginia Lottery sports wagering (hereinafter “privilege tax” or “tax”). The accrual method of accounting shall be used for purposes of calculating the amount of the tax owed by the licensee.

(b) Operator revenue reports and payment of privilege tax. —

(1) The tax levied and collected pursuant to §29-22D-16(a) of this code is due and payable to the commission in weekly installments on or before the Wednesday following the calendar week in which the adjusted gross sports wagering receipts were received and the tax obligation was accrued.

(2) The licensed operator shall complete and submit the return for the preceding week by electronic communication to the commission, on or before Wednesday of each week, in the form prescribed by the commission that provides:

(A) The total gross sports wagering receipts and adjusted gross sports wagering receipts from operation of West Virginia Lottery sports wagering during that week;

(B) The tax amount for which the sports wagering licensee is liable; and

(C) Any additional information necessary in the computation and collection of the tax on adjusted gross sports wagering receipts required by the commission.

(3) The tax amount shown to be due shall be remitted by electronic funds transfer simultaneously with the filing of the return. All moneys received by the commission pursuant to this section shall be deposited in the sports wagering fund in accordance with the provisions of this article.

(4) When adjusted gross receipts for a week is a negative number because the winnings paid to patrons wagering on the licensee’s West Virginia Lottery sports wagering exceeds the licensee’s total gross receipts from sports wagering by patrons, the commission shall allow the licensee to carry over the negative amount to returns filed for subsequent weeks. The negative amount of adjusted gross receipts may not be carried back to an earlier week and moneys previously received by the commission will not be refunded, except if the licensee surrenders its operator’s license and the licensee’s last return reported negative adjusted gross receipts. In that case, the commission shall multiply the amount of negative adjusted gross receipts by 10 percent and pay the amount to the licensee in the manner approved by the commission.

(c) Privilege tax obligation imposed by this section is in lieu of other taxes. — With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the privilege tax on adjusted gross sports wagering receipts imposed by this section is in lieu of all other state and local taxes and fees imposed on the operation of, or the proceeds from operation of West Virginia Lottery sports wagering, except as otherwise provided in this section. The consumers sales and services tax imposed pursuant to §11-15-1 et seq. of this code, the use tax imposed by §11-15A-1 et seq. of this code and any similar local tax imposed at the municipal or county level, shall not apply to the licensee’s gross receipts from any West Virginia Lottery sports wagering or to the licensee’s purchase of sports wagering equipment, supplies, or services directly used in operation of the sports wagering authorized by this article.

(d) Acquisition of any system or wagering equipment and other items related to the operation of West Virginia sports wagering shall be considered “facility modernization improvements” eligible for recoupment as defined in §29-22A-10(b)(2) and §29-25-22(c) of this code.

(e) Prohibition on credits. — Notwithstanding any other provision of this code to the contrary, no credit may be allowed against the privilege tax obligation imposed by this section or against any other tax imposed by any other provision of this code for any investment in gaming equipment or for any investment in or improvement to real property that is used in the operation of West Virginia Lottery sports wagering.

§29-22D-17. West Virginia Lottery Sports Wagering Fund; distribution of funds.

(a) The special fund in the State Treasury known as the West Virginia Lottery Sports Wagering Fund is hereby created and all moneys collected under this article by the commission shall be deposited with the State Treasurer to the West Virginia Lottery Sports Wagering Fund. The fund shall be an interest-bearing account with all interest or other return earned on the money of the fund credited to and deposited in the fund. All expenses of the commission incurred in the administration and enforcement of this article shall be paid from the sports wagering fund pursuant to §29-22D-17(b) of this code.

(b) The commission shall deduct an amount sufficient to reimburse its actual costs and expenses incurred in administering sports wagering at licensed gaming facilities from the gross deposits into the sports wagering fund. The amount remaining after the deduction for administrative expenses is the net profit.

(1) Administrative allowance. — The commission shall retain up to 15 percent of gross deposits for the fund operation and its administrative expenses: Provided, That in the event that the percentage allotted for operations and administration generates a surplus, the surplus shall be allowed to accumulate but may not exceed $250,000. On a monthly basis, the director shall report any surplus in excess of $250,000 to the Joint Committee on Government and Finance and remit the entire amount of those surplus funds in excess of $250,000 to the State Treasurer which shall be allocated as net profit.

(2) Distribution of net profit. — In each fiscal year, net profit shall be deposited into the State Lottery Fund created by §29-22-18 of this code until a total of $15 million is deposited; thereafter, the remainder shall be deposited into the Public Employees Insurance Agency Financial Stability Fund to stabilize and preserve the future solvency of PEIA, and such amount may not be included in the calculation of any plan year aggregate premium cost-sharing percentages between employers and employees.

§29-22D-18. Law enforcement.

Notwithstanding any provision of this code to the contrary, the commission shall, by contract or cooperative agreement with the West Virginia State Police, arrange for those law-enforcement services uniquely related to gaming, as such occurs at facilities of the type authorized by this article, that are necessary to enforce the provisions of this article that are not subject to federal jurisdiction: Provided, That the State Police shall only have exclusive jurisdiction over offenses committed on the grounds of a licensed gaming facility that are offenses relating to gaming.

§29-22D-19. Civil penalties.

(a) The commission may impose, on any person who violates the provisions of this article, a civil penalty not to exceed $50,000 for each violation. Such penalty shall be imposed on all individuals and is not limited to individuals licensed under this article. This provision shall not be construed as applicable to office pools.

(b) The provisions of §29A-5-1 et seq. of this code apply to any civil penalty imposed pursuant to the provisions of this section.

§29-22D-20. Crimes and penalties related to unauthorized sports wagering operations.

(a) Any person, other than a licensee under this article, who engages in accepting, facilitating, or operating a sports wagering operation is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000 or confined in jail for not more than ninety days, or both fined and confined.

(b) Notwithstanding the penalty provisions §29-22D-20(a) of this code, any person convicted of a second violation of §29-22D-20(a) of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $50,000, or confined in jail for not more than six months, or both fined and confined.

(c) Notwithstanding the penalty provisions of §29-22D-20(a) or §29-22D-20(b) of this code, any person convicted of a third or subsequent violation of said §29-22D-20(a) of this code is guilty of a felony, and upon conviction thereof, shall be fined not less than $25,000 nor more than $100,000 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and confined.

§29-22D-21. Crimes and penalties related to authorized sports wagering operation.

(a) A sports wagering licensee is guilty of unlawful operation and is guilty of a misdemeanor when:

(1) The licensee operates West Virginia Lottery sports wagering without authority of the commission to do so;

(2) The licensee operates West Virginia Lottery sports wagering in any location or by any manner that is not approved by the commission;

(3) The licensee knowingly conducts, carries on, operates, or allows any sports wagering to occur on premises or through any other device if equipment or material has been tampered with, or exposed to conditions in which it will be operated in a manner designed to deceive the public;

(4) The licensee employs an individual who does not hold a valid occupational license in a position for which a license is required or otherwise allows an individual to perform duties for which such license is required or continues to employ an individual after the employee’s occupational license is no longer valid;

(5) The licensee acts or employs another person to act as if he or she is not an agent or employee of the licensee in order to encourage participation in West Virginia Lottery sports wagering at the licensed gaming facility;

(6) The licensee knowingly permits an individual under the age of 21 to enter or remain in a designated gaming area or to engage in sports wagering at a licensed gaming facility; or

(7) The licensee exchanges tokens, chips, electronic media, or other forms of credit used for wagering for anything of value except money or credits applied to a sports wagering account at a gaming facility authorized under this article.

(b) A person is guilty of a felony when:

(1) A person offers, promises, or gives anything of value to anyone for the purpose of influencing the outcome of a race, sporting event, contest, or game upon which a wager may be made, or a person places, increases, or decreases a wager after acquiring knowledge, not available to the general public, that anyone has been offered, promised, or given anything of value for the purpose of influencing the outcome of the race, sporting event, contest, or game upon which the wager is placed, increased or decreased, or attempts to do any of the same;

(2) A person changes or alters the normal outcome of any game played on a mobile or other digital platform, including any interactive gaming system used to monitor the same or the way in which the outcome is reported to any participant in the game;

(3) The person manufactures, sells, or distributes any device that is intended by that person to be used to violate any provision of this article or the sports wagering laws of any other state;

(4) The person places a bet or aids any other individual in placing a bet on a sporting event or other sports wagering game or offering authorized under this article after unlawfully acquiring knowledge of the outcome on which winnings from that bet are contingent;

(5) The person claims, collects, or takes anything of value from a gaming facility with West Virginia Lottery sports wagering with intent to defraud or attempts such action without having made a wager in which such amount or value is legitimately won or owed;

(6) The person knowingly places a wager using counterfeit currency or other counterfeit form of credit for wagering at a gaming facility with West Virginia Lottery sports wagering; or

(7) The person, not a licensed gaming facility under this article or an employee or agent of a gaming facility licensed under this article acting in furtherance of the licensee’s interest, has in his or her possession on grounds owned by the gaming facility licensed under this article or on grounds contiguous to the licensed gaming facility, any device intended to be used to violate a provision of this article or any rule of the commission.

(c) Any person who violates any provision of §29-22D-21(a) of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than six months, or both fined and confined, except any violation that is not committed by a natural person may result in a fine of not more than $25,000.

(d) Any person who violates any provision of §29-22D-21(b) of this code is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000, or confined in a state correctional facility for not less than one year nor more than five years, or both fined and confined.

(e) With regard to §29-22D-21(a) of this code, each West Virginia sports wagering licensee shall post notice of the prohibitions and penalties of this section in a manner determined by the rules of the commission.

§29-22D-22. Preemption.

No local law or rule providing any penalty, disability, restriction, regulation, or prohibition for operating a gaming facility with West Virginia Lottery sports wagering or supplying a licensed 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 with this article.

§29-22D-23. Exemption from federal law.

Pursuant to Section 2 of Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1172, approved January 2, 1951, the State of West Virginia, acting by and through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178.

§29-22D-24. Shipment of gambling devices.

All shipments of gambling devices including any sports wagering devices or related materials to licensed gaming facilities in this state are legal shipments of gambling devices into the State of West Virginia, as long as the registering, recording, and labeling of which have been completed by the supplier thereof in accordance with Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178.

§29-22E-21. Crimes and penalties related to authorized interactive wagering operation.

(a) An interactive wagering licensee is guilty of unlawful operation and is guilty of a misdemeanor when:

(1) The licensee operates West Virginia Lottery interactive wagering without authority of the commission to do so;

(2) The licensee operates West Virginia Lottery interactive wagering in any location or by any manner that is not approved by the commission;

(3) The licensee knowingly conducts, carries on, operates, or allows any interactive wagering to occur on premises or through any other device if equipment or material has been tampered with, or exposed to conditions in which it will be operated in a manner designed to deceive the public;

(4) The licensee employs an individual who does not hold a valid occupational license in a position for which a license is required or otherwise allows an individual to perform duties for which such license is required or continues to employ an individual after the employee’s occupational license is no longer valid;

(5) The licensee acts or employs another person to act as if he or she is not an agent or employee of the licensee in order to encourage participation in West Virginia Lottery interactive wagering;

(6) The licensee knowingly permits an individual under the age of 21 to enter or remain in a designated gaming area or to engage in interactive wagering; or

(7) The licensee exchanges tokens, chips, electronic media, or other forms of credit used for wagering for anything of value except money or credits applied to an interactive wagering account at a gaming facility or through a digital or electronic platform authorized under this article.

(b) A person is guilty of a felony when:

(1) A person changes or alters the normal outcome of any game played on a mobile or other digital platform, including any interactive gaming system used to monitor the same or the way in which the outcome is reported to any participant in the game;

(2) The person manufactures, sells, or distributes any device that is intended by that person to be used to violate any provision of this article or the interactive wagering laws of any other state;

(3) The person claims, collects, or takes anything of value from a gaming facility offering West Virginia Lottery interactive wagering with intent to defraud or attempts such action without having made a wager in which such amount or value is legitimately won or owed;

(4) The person knowingly places a wager using counterfeit currency or other counterfeit form of credit for wagering at a gaming facility or through a digital or electronic platform offering West Virginia Lottery interactive wagering; or

(5) The person, not a licensed gaming facility under this article or an employee or agent of a gaming facility licensed under this article acting in furtherance of the licensee’s interest, has in his or her possession on grounds owned by the gaming facility licensed under this article or on grounds contiguous to the licensed gaming facility, any device intended to be used to violate a provision of this article or any rule of the commission.

(c) Any person who violates any provision of §29-22E-21(a) of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than six months, or both fined and confined, except any violation that is not committed by a natural person may result in a fine of not more than $25,000.

(d) Any person who violates any provision of §29-22E-21(b) of this code is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000, or confined in a state correctional facility for not less than one year nor more than five years, or both fined and confined.

(e) With regard to §29-22E-21(b) of this code, each West Virginia interactive wagering licensee shall post notice of the prohibitions and penalties of this section in a manner determined by the rules of the commission.

§29-22E-22. Preemption.

No local law or rule providing any penalty, disability, restriction, regulation, or prohibition for operating a gaming facility with West Virginia Lottery interactive wagering or supplying a licensed 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 with this article.

§29-22E-23. Exemption from federal law.

Pursuant to Section 2 of Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1172, approved January 2, 1951, the State of West Virginia, acting by and through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178.

§29-22E-24. Shipment of gambling devices.

All shipments of gambling devices including any interactive wagering devices or related materials to licensed gaming facilities in this state are legal shipments of gambling devices into the State of West Virginia, as long as the registering, recording, and labeling of which have been completed by the supplier thereof in accordance with Chapter 1194, 64 Stat. 1134, 15 U.S.C. §1171 to §1178.

§29-22E-11. Interactive wagering house rules; posting of rules.

(a) Each operator shall adopt comprehensive house rules for game play governing interactive wagering transactions with its patrons. These comprehensive rules will be published as part of the minimum internal control standards. The rules shall specify the amounts to be paid on winning wagers and the effect of schedule changes. House rules shall be approved by the commission prior to implementation.

(b) The house rules, together with any other information the commission deems appropriate, shall be conspicuously displayed and included in the terms and conditions of the interactive wagering system. Copies shall be made readily available to patrons.

(c) The commission shall license and require the display of West Virginia Lottery game logos on interactive wagering platforms and any locations the commission considers appropriate.

§29-22E-12. Operator duties; interactive wagering operations at a licensed gaming facility.

(a) General. — All operators licensed under this article to conduct West Virginia Lottery interactive wagering shall:

(1) Employ an interactive gaming system and interactive gaming platform which manages, conducts, and records interactive games and the wagers associated with interactive games, as well as any interactive gaming platforms authorized by the commission. System requirements and specifications shall be developed according to industry standards and implemented by the commission as part of the minimum internal control standards;

(2) Promptly report to the commission any facts or circumstances related to the operation of a West Virginia Lottery interactive wagering licensee which constitute a violation of state or federal law and immediately report any suspicious betting over a threshold set by the operator that has been approved by the commission to the appropriate state or federal authorities;

(3) Conduct all interactive wagering activities and functions in a manner which does not pose a threat to the public health, safety, or welfare of the citizens of this state and does not adversely affect the security or integrity of the West Virginia Lottery;

(4) Hold the commission and this state harmless from and defend and pay for the defense of any and all claims which may be asserted against a licensee, the commission, the state, or employees thereof, arising from the licensee’s actions or omission while acting as an agent of the commission operating West Virginia Lottery interactive wagering pursuant to this article;

(5) Assist the commission in maximizing interactive wagering revenues; and

(6) Keep current in all payments and obligations to the commission.

(b) Duties. — All West Virginia Lottery interactive wagering licensees shall:

(1) Acquire West Virginia Lottery interactive wagering equipment by purchase, lease, or other assignment and provide a secure location for the placement, operation, and play of interactive wagering gaming equipment;

(2) Prevent any person from tampering with or interfering with the operation of any West Virginia Lottery interactive wagering;

(3) Ensure that West Virginia Lottery interactive wagering conducted at a gaming facility is within the sight and control of designated employees of the licensee and such wagering at the facility or otherwise available by the licensee is conducted under continuous observation by security equipment in conformity with specifications and requirements of the commission;

(4) Ensure that West Virginia Lottery interactive wagering occurs only in the specific locations within designated gaming areas approved by the commission or using a commission approved mobile application or other digital platform that utilizes communications technology to accept wagers originating within this state, or on an interactive wagering device. West Virginia Lottery interactive wagering shall only be relocated or offered in additional authorized manners in accordance with the rules of the commission;

(5) Maintain sufficient cash and other supplies to conduct interactive wagering at all times; and

(6) Maintain daily records showing the gross interactive wagering receipts and adjusted gross interactive wagering receipts of the licensee from West Virginia Lottery interactive wagering and shall timely file with the commission any additional reports required by rule or by other provisions of this code.

§29-22E-13. Posting of betting limits.

An interactive wagering licensee shall conspicuously post a sign at each West Virginia Lottery interactive wagering location and on all interactive gaming platforms indicating the minimum and maximum wagers permitted at that location and shall comply with the same.

§29-22E-14. Interactive wagering agreements with other governments.

(a) On behalf of the State of West Virginia, the commission is authorized to:

(1) Enter into interactive wagering agreements with other governments whereby persons who are physically located in a signatory jurisdiction may participate in interactive wagering conducted by one or more operators licensed by the signatory governments; and

(2) Take all necessary actions to ensure that any interactive wagering agreement entered into, pursuant to this section, becomes effective.

(b) The rules adopted by the commission pursuant to this section may include provisions prescribing:

(1) The form, length, and terms of an agreement entered into by the commission and another government, including, but not limited to, provisions relating to how: Taxes are to be treated by this state and another government; revenues are to be shared and distributed; and disputes with patrons are to be resolved;

(2) The information to be furnished to the commission by a government that proposes to enter into an agreement with this state pursuant to this section;

(3) The information to be furnished to the commission to enable the commission and director to carry out the purposes of this section;

(4) The manner and procedure for hearings conducted by the commission pursuant to this section, including any special rules or notices; and

(5) The information required to be furnished to the commission to support any recommendations made to the commission, pursuant to this section.

(c) The commission may not enter into any interactive wagering agreement, pursuant to this section, unless the agreement includes provisions that:

(1) Account for the sharing of revenues by this state and another government;

(2) Permit the effective regulation of interactive wagering by this state, including provisions relating to licensing of persons, technical standards, resolution of disputes by patrons, requirements for bankrolls, enforcement, accounting, and maintenance of records;

(3) Require each government that is a signatory to the agreement to prohibit operators of interactive wagering, management or other service providers, or suppliers, manufacturers or distributors of interactive wagering systems from engaging in any activity permitted by the interactive wagering agreement unless they are licensed in this state or in a signatory jurisdiction with similar requirements approved by the commission;

(4) No variation from the requirements of the interactive wagering agreement is permitted for any signatory government without a lack of opposition by this state and all signatory governments;

(5) Prohibit any subordinate or side agreements among any subset of governments that are signatories to the agreement unless it relates exclusively to the sharing of revenues; and

(6) Require the government to establish and maintain regulatory requirements governing interactive wagering that are consistent with the requirements of this state in all material respects if the interactive wagering agreement allows persons physically located in this state to participate in interactive wagering conducted by another government or an operator licensed by another government. 

§29-22E-17. West Virginia Lottery Interactive Wagering Fund; distribution of funds.

(a) The special fund in the State Treasury known as the West Virginia Lottery Interactive Wagering Fund is hereby created and all moneys collected under this article by the commission shall be deposited with the State Treasurer to the West Virginia Lottery Interactive Wagering Fund. The fund shall be an interest-bearing account with all interest or other return earned on the money of the fund credited to and deposited in the fund. All expenses of the commission incurred in the administration and enforcement of this article shall be paid from the interactive wagering fund pursuant to §29-22E-17(b) of this code.

(b) The commission shall deduct an amount sufficient to reimburse its actual costs and expenses incurred in administering interactive wagering at licensed gaming facilities from the gross deposits into the interactive wagering fund. The amount remaining after the deduction for administrative expenses is the net profit.

(1) Administrative allowance. — The commission shall retain up to 15 percent of gross deposits for the fund operation and its administrative expenses: Provided, That in the event that the percentage allotted for operations and administration generates a surplus, the surplus shall be allowed to accumulate but may not exceed $250,000. On a monthly basis, the director shall report any surplus in excess of $250,000 to the Joint Committee on Government and Finance and remit the entire amount of those surplus funds in excess of $250,000 to the State Treasurer which shall be allocated as net profit.

(2) Distribution to pension plan for racing association employees. — In each fiscal year, the Lottery Commission shall deposit one-quarter of a percent of the net profit into each of the four special funds established by the Racing Commission, pursuant to §29-22A-10 and §29-22C-27 of this code, to be used for payment into the pension plan for the employees of the licensed racing associations in this state.

(3) Distribution of net profit. — In each fiscal year, remaining net profit shall be deposited into the State Lottery Fund created by §29-22-18 of this code unless otherwise required by this code.

§29-22E-18. Law enforcement.

Notwithstanding any provision of this code to the contrary, the commission shall, by contract or cooperative agreement with the West Virginia State Police, arrange for those law-enforcement services uniquely related to interactive wagering, as such occurs at facilities of the type authorized by this article, that are necessary to enforce the provisions of this article that are not subject to federal jurisdiction: Provided, That the State Police shall only have exclusive jurisdiction over offenses committed on the grounds of a licensed gaming facility that are offenses relating to interactive wagering.

§29-22E-19. Civil penalties.

(a) The commission may impose, on any person who violates the provisions of this article, a civil penalty not to exceed $50,000 for each violation. Such penalty shall be imposed on all individuals and is not limited to individuals licensed under this article.

(b) The provisions of §29A-5-1 et seq. of this code apply to any civil penalty imposed pursuant to the provisions of this section.

§29-22E-20. Crimes and penalties related to unauthorized interactive wagering operations.

(a) Any person, other than a licensee under this article, who engages in accepting, facilitating, or operating an interactive wagering operation is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000 or confined in jail for not more than 90 days, or both fined and confined.

(b) Notwithstanding the penalty provisions of §29-22E-20(a) of this code, any person convicted of a second violation of §29-22E-20(a) of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $50,000, or confined in jail for not more than six months, or both fined and confined.

(c) Notwithstanding the penalty provisions of §29-22E-20(a) or §29-22E-20(b) of this code, any person convicted of a third or subsequent violation of §29-22E-20(a) of this code is guilty of a felony, and upon conviction thereof, shall be fined not less than $25,000 nor more than $100,000 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and confined.

§29-22E-15. Authorization of interactive wagering in this state; requirements.

(a) An operator shall accept wagers on interactive games authorized under this article from persons physically present in a licensed gaming facility where authorized interactive wagering occurs. A person placing a wager shall be at least 21 years of age.

(b) An operator may accept wagers from an individual physically located within this state using a mobile or other digital platform or an interactive wagering device, approved by the commission, through the patron’s interactive wagering account. A person placing a wager shall be at least 21 years of age.

(c) An operator may accept wagers from an individual physically located in a state or jurisdiction with which the commission has entered into an interactive wagering agreement using a mobile or other digital platform or an interactive wagering device through the patron’s interactive wagering account, so long as the device or platform is approved by the commission and all other requirements of the agreement are satisfied.

(d) The commission or operator may ban any person from entering a gaming area of a gaming facility conducting interactive wagering or the grounds of a gaming facility licensed under this article or from participating in the play or operation of any West Virginia Lottery interactive wagering. A log of all excluded players shall be kept by the commission and each licensee, and no player on the commission’s exclusion list or the licensed operator’s exclusion list shall wager on any West Virginia Lottery interactive wagering under this article.

(e) The commission shall promulgate rules implementing the provisions of §29-22E-15(a) and §29-22E-15(b) of this code by interpretive rule and minimum internal control standards.

(f) The commission shall conduct all interactive wagering pursuant to the provisions of this article, and such gaming activities shall be deemed to occur at the licensed gaming facilities authorized to conduct interactive wagering.

(g) No licensed gaming facility employee may place a wager on any interactive wagering at the employer’s facility or through any other mobile application or digital platform of their employer.

(h) No commission employee may knowingly wager or be paid any prize from any wager placed at any licensed gaming facility with West Virginia Lottery interactive wagering within this state or at any facility outside this jurisdiction that is directly or indirectly owned or operated by a West Virginia interactive wagering licensee.

§29-22E-16. Interactive wagering revenues; accounting for the state’s share of revenue imposed for the privilege of offering West Virginia Lottery interactive wagering; limitation of other taxes; recoupment for improvements.

(a) Imposition and rate of assessment. — For the privilege of holding a license to operate interactive wagering under this article, the state shall impose and collect 15 percent of the licensee’s adjusted gross interactive wagering receipts from the operation of West Virginia Lottery interactive wagering (hereinafter "privilege tax" or "tax"). The accrual method of accounting shall be used for purposes of calculating the amount of the tax owed by the licensee.

(b) Operator revenue reports and payment of privilege tax. —

(1) The tax levied and collected pursuant to §29-22E-16(a) of this code is due and payable to the commission in weekly installments on or before the Wednesday following the calendar week in which the adjusted gross interactive wagering receipts were received and the tax obligation was accrued.

(2) The licensed operator shall complete and submit the return for the preceding week by electronic communication to the commission, on or before Wednesday of each week, in the form prescribed by the commission that provides:

(A) The total gross interactive wagering receipts and adjusted gross interactive wagering receipts from operation of West Virginia Lottery interactive wagering during that week;

(B) The tax amount for which the interactive wagering licensee is liable; and

(C) Any additional information necessary in the computation and collection of the tax on adjusted gross interactive wagering receipts required by the commission.

(3) The tax amount shown to be due shall be remitted by electronic funds transfer simultaneously with the filing of the return. All moneys received by the commission pursuant to this section shall be deposited in the interactive wagering fund in accordance with the provisions of this article.

(c) Privilege tax obligation imposed by this section is in lieu of other taxes. — With the exception of the ad valorem property tax collected under chapter 11A of this code, the privilege tax on adjusted gross interactive wagering receipts imposed by this section is in lieu of all other state and local taxes and fees imposed on the operation of, or the proceeds from operation of, West Virginia Lottery interactive wagering, except as otherwise provided in this section. The consumers sales and services tax imposed pursuant to §11-15-1 et seq. of this code, the use tax imposed by §11-15A-1 et seq. of this code and any similar local tax imposed at the municipal or county level, shall not apply to the licensee’s gross receipts from any West Virginia Lottery interactive wagering or to the licensee’s purchase of interactive wagering equipment, supplies, or services directly used in operation of the interactive wagering authorized by this article.

(d) Acquisition of any system or wagering equipment and other items related to the operation of West Virginia interactive wagering shall be considered "facility modernization improvements" eligible for recoupment as defined in §29-22A-10(b)(2) and §29-25-22(c) of this code.

(e) Prohibition on credits. — Notwithstanding any other provision of this code to the contrary, no credit may be allowed against the privilege tax obligation imposed by this section or against any other tax imposed by any other provision of this code for any investment in gaming equipment or for any investment in or improvement to real property that is used in the operation of West Virginia Lottery interactive wagering.

§29-22E-8. Suppliers; license requirements.

(a) Supplier license. —

(1) The commission may issue a supplier license to a person to sell or lease interactive wagering equipment, systems, or other gaming items necessary to conduct interactive wagering, and offer services related to such equipment or other gaming items to a West Virginia Lottery interactive wagering licensee while the license is active. The commission may establish the conditions under which the commission may issue provisional licenses, pending completion of final action on an application.

(2) The commission may adopt rules establishing additional requirements for a West Virginia Lottery interactive wagering supplier and any system or other equipment utilized for wagering. The commission may accept licensing by another jurisdiction, that it specifically determines to have similar licensing requirements, as evidence the applicant meets West Virginia Lottery interactive wagering supplier licensing requirements.

(b) Supplier specifications. — An applicant for a supplier license shall demonstrate that the equipment, system, or services that the applicant plans to offer to the interactive wagering licensee conform to standards established by the commission and applicable state law. The commission may accept approval by another jurisdiction, that it specifically determines have similar equipment standards, as evidence the applicant meets the standards established by the commission and applicable state law.

(c) License application and renewal fees. — Applicants shall pay to the commission a nonrefundable license and application fee in the amount of $10,000. After the initial one-year term, the commission shall renew supplier licenses annually thereafter. Renewal of a supplier license will be granted to any renewal applicant who has continued to comply with all applicable statutory and regulatory requirements, upon submission of the commission issued renewal form and payment of a $10,000 renewal fee.

(d) Inventory. — A licensed interactive wagering supplier shall submit to the commission a list of all interactive wagering equipment and services sold, delivered to, or offered to a West Virginia Lottery interactive wagering licensee in this state, as required by the commission, all of which must be tested and approved by an independent testing laboratory approved by the commission. An interactive wagering licensee may continue to use supplies acquired from a licensed interactive wagering supplier, even if a supplier’s license expires or is otherwise cancelled, unless the commission finds a defect in the supplies.

§29-22E-9. Occupational licenses.

(a) All persons employed to be engaged directly in interactive wagering-related activities, or otherwise conducting or operating interactive wagering, shall be licensed by the commission and maintain a valid occupational license at all times and the commission shall issue such license to be employed in the operation of interactive wagering to a person who meets the requirements of this section.

(b) An occupational license to be employed by a gaming facility with West Virginia Lottery interactive wagering permits the licensee to be employed in the capacity designated by the commission while the license is still active. The commission may establish, by rule, job classifications with different requirements to recognize the extent to which a particular job has the ability to impact the proper operation of West Virginia Lottery interactive wagering.

(c) Application and fee. — Applicants shall submit any required application forms established by the commission and pay a nonrefundable application fee of $100. The fee may be paid on behalf of an applicant by the employer.

(d) Renewal fee and form. — Each licensed employee shall pay to the commission an annual license fee of $100 by June 30 of each year. The fee may be paid on behalf of the licensed employee by the employer. In addition to a renewal fee, each licensed employee shall annually submit a renewal application on the form required by the commission.

§29-22E-10. License prohibitions.

(a) The commission may not grant any license, pursuant to the provisions of this article, if evidence satisfactory to the commission exists that the applicant:

(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 gaming operation, or had a license revoked by any governmental authority responsible for regulation of gaming activities;

(3) Has been convicted of a gambling-related offense, a theft or fraud offense, or has otherwise demonstrated, either by a police record or other satisfactory evidence, a lack of respect for law and order; or

(4) Is a company or individual who has been directly employed by any illegal or offshore book that serviced the United States, or otherwise accepted black market wagers from individuals located in the United States.

(b) The commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license:

(1) If the applicant or licensee has not demonstrated to the satisfaction of the commission financial responsibility sufficient to adequately meet the requirements of the proposed enterprise;

(2) If the applicant or licensee is not the true owner of the business or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in the business; or

(3) If the applicant or licensee is a corporation which sells more than five percent of a licensee’s voting stock, or more than five percent of the voting stock of a corporation which controls the licensee, or sells a licensee’s assets, other than those bought and sold in the ordinary course of business, or any interest in the assets, to any person not already determined by the commission to have met the qualifications of a licensee under this article.

(c) In the case of an applicant for an interactive wagering license, the commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if an applicant has not met the requirements of this section or any other provision of this article.

§29-22E-7. Management services providers; license requirements.

(a) License. — The holder of a license to operate West Virginia Lottery interactive wagering may contract with an entity to conduct that operation in accordance with the rules of the commission. That entity shall obtain a license as a management services provider prior to the execution of any such contract, and such license shall be issued pursuant to the provisions of this article and any rules promulgated by the commission.

(b) License qualifications and fee. — Each applicant for a management services provider license shall meet all requirements for licensure and pay a nonrefundable license and application fee of $100,000. The commission may adopt rules establishing additional requirements for an authorized management services provider. The commission may accept licensing by another jurisdiction, that it specifically determines to have similar licensing requirements, as evidence the applicant meets authorized management services provider licensing requirements.

(c) Renewal. — Management services provider licenses shall be renewed annually to any licensee who continues to be in compliance with all requirements and who pays the annual renewal fee of $100,000.

(d) Any entity or individual who shares in revenue, including any affiliate operating under a revenue share agreement, shall be licensed under this section.

§29-22E-6. Operator license; West Virginia interactive wagering operators.

(a) In addition to the casino games permitted pursuant to the provisions of §29-22A-1 et seq., §29-22C-1 et seq., and §29-25-1 et seq. of this code, a licensed gaming facility may operate West Virginia Lottery interactive wagering upon the approval of the commission, and the commission shall have the general responsibility for the implementation of this article and all other duties specified in §29-22-1 et seq., §29-22A-1 et seq., §29-22C-1 et seq., §29-22D-1 et seq., and §29-25-1 et seq. of this code, the provisions of this article, and applicable rules.

(b) All interactive wagering authorized by this article shall be West Virginia Lottery games owned by the State of West Virginia. An operator license granted by the commission pursuant to this article grants licensees lawful authority to conduct West Virginia Lottery interactive wagering within the terms and conditions of the license and any rules promulgated under this article.

(c) Interactive wagering licenses. — The commission may issue up to five licenses to operate West Virginia Lottery interactive wagering in accordance with the provisions of this article. No more than five licenses to operate a gaming facility with West Virginia Lottery interactive wagering shall be permitted in this state.

(d) Grant of license. — Upon application by a gaming facility and payment of a $250,000 application fee, the commission shall immediately grant a West Virginia Lottery interactive wagering license to an operator that provides for the right to conduct West Virginia Lottery interactive wagering: Provided, That the applicant must hold a valid racetrack video lottery license issued by the commission, pursuant to §29-22A-1 et seq. of this code, or a valid license to operate a gaming facility, issued by the commission pursuant to §29-25-1 et seq. of this code, and otherwise meet the requirements for licensure under the provisions of this article and the rules of the commission. This license shall be issued for a five-year period, and may be renewed for five-year periods upon payment of a $100,000 renewal fee, as long as an operator continues to meet all qualification requirements.

(e) Location. — A West Virginia Lottery interactive wagering license authorizes the operation of West Virginia Lottery interactive wagering at approved locations and through any mobile application or other digital platforms approved by the commission.

(f) Management service contracts. —

(1) Approval. — A West Virginia Lottery interactive wagering licensee may not enter into any management services contract that would permit any person other than the licensee to act as the commission’s agent in operating West Virginia Lottery interactive wagering unless the management service contract: (A) Is with a person licensed under this article to provide management services; (B) is in writing; and (C) has been approved by the commission.

(2) Material change. — The West Virginia Lottery interactive wagering licensee shall submit any material change in a management services contract, previously approved by the commission, to the commission for its approval or rejection before the material change may take effect.

(3) Other commission approvals and licenses. — The duties and responsibilities of a management services provider under a management services contract may not be assigned, delegated, subcontracted, or transferred to a third party without the prior approval of the commission. Third parties must be licensed as a management services provider under this article before providing services.

(g) Expiration date and renewal. —

(1) A licensed operator shall submit to the commission such documentation or information as the commission may require demonstrating to the satisfaction of the director that the licensee continues to meet the requirements of the law and rules. Required documentation or information shall be submitted no later than five years after issuance of an operator license and every five years thereafter, or within lesser periods based on circumstances specified by the commission.

(2) If the licensee fails to apply to renew its license issued pursuant to §29-22A-1 et seq. or §29-25-1 et seq. of this code prior to expiration, the commission shall renew its license under this article at the time the expired license is renewed as long as the licensee was operating in compliance with applicable requirements in the preceding license year.

(h) Surety bond. — A West Virginia Lottery interactive wagering licensee shall execute a surety bond in an amount and in the form approved by the commission, to be given to the state, to guarantee the licensee faithfully makes all payments in accordance with the provisions of this article and rules promulgated by the commission.

(i) Audits. — Upon application for a license and annually thereafter, a West Virginia Lottery interactive wagering licensee shall submit to the commission an annual audit of the financial transactions and condition of the licensee’s total operations prepared by a certified public accountant in accordance with generally accepted accounting principles and applicable federal and state laws.

(j) Commission office space. — A West Virginia Lottery interactive wagering licensee shall provide suitable office space at the interactive wagering facility, at no cost, for the commission to perform the duties required of it by this article and the rules of the commission.

(k) Facility qualifications. — A West Virginia Lottery interactive wagering licensee shall demonstrate that its gaming facility with West Virginia Lottery interactive wagering will: (1) Be accessible to disabled individuals, in accordance with applicable federal and state laws; (2) be licensed in accordance with this article, and all other applicable federal, state, and local laws; and (3) meet any other qualifications specified in rules adopted by the commission. Notwithstanding any provision of this code or any rules promulgated by the Alcohol Beverage Control Commissioner to the contrary, vacation of the premises after service of beverages ceases is not required for any licensed gaming facility.

§29-22E-1. Short title.

This article shall be known and may be cited as the West Virginia Lottery Interactive Wagering Act.

§29-22E-2. State authorization of interactive wagering at licensed racetrack facilities and historic resort hotel; legislative findings, and declarations.

(a) Operation of West Virginia Lottery interactive wagering. — Notwithstanding any provision of law to the contrary, the operation of interactive wagering and ancillary activities are only lawful when conducted in accordance with the provisions of this article and rules of the commission.

(b) Legislative findings. —

(1) The Legislature finds that the operation of the four racetracks and the historic resort hotel in this state play a critical role in the economy of this state, and such constitutional lotteries are rightfully authorized as state enterprises consistent with the rights and powers granted to the states under the Tenth Amendment of the United States Constitution. The federal government is a government of limited and enumerated powers, and powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved for the states and its respective citizens.

(2) The Legislature finds that section 36, article VI of the Constitution of the State of West Virginia grants the state the exclusive right to lawfully own and operate a lottery in this state. Authorization of wagering on any constitutional lottery within West Virginia is within the state’s sovereign rights as a state to act in the best interest of its citizens.

(3) The Legislature finds that it is in the best interests of the State of West Virginia for the state to operate a lottery in the form of interactive wagering and that it is the intent of the Legislature to authorize interactive wagering within the state and through compacts with other approved jurisdictions.

(4) The Legislature finds that illegal interactive wagering channels operating throughout the United States pose a critical threat to the safety and welfare of the citizens of West Virginia and that creating civil and criminal penalties to prosecute illegal operators, while transferring this black market demand into a secure and highly regulated environment, will protect the public and positively benefit state revenues and the state’s economy.

 (5) The Legislature finds that the most effective and efficient manner in which the state can operate and regulate the forms of lottery authorized by the provisions of this article is to limit the number of authorized operators to those who are licensed, pursuant to the provisions of §29-22A-1 et seq. of this code, and to facilities licensed to operate video lottery terminals, pursuant to the provisions of §29-25-1 et seq. of this code.

(6) The Legislature finds that the granting of licenses pursuant to the provisions of this article, while maintaining all ownership rights and exercising control through strict regulation of all West Virginia Lottery interactive wagering authorized by the provisions of this article, constitutes an appropriate exercise by the Legislature of the power granted it by the provisions of section 36, article VI of the Constitution of the State of West Virginia.

(7) The Legislature finds that the operation of West Virginia Lottery interactive wagering at racetracks, licensed pursuant to the provisions of §29-22A-1 et seq. of this code, and at a historic resort hotel, licensed pursuant to the provisions of §29-25-1 et seq. of this code, serves to protect, preserve, promote, and enhance the tourism industry of the state as well as the general fiscal wellbeing of the state and its subdivisions.

§29-22E-3. Definitions.

For the purposes of this article, the following terms have the meanings ascribed to them in this section:

(1) "Adjusted gross interactive wagering receipts" means an operator’s gross interactive wagering receipts from West Virginia Lottery interactive wagering, less winnings paid to wagerers in such games.

(2) "Commission" or "State Lottery Commission" means the West Virginia Lottery Commission, created by §29-22-1 et seq. of this code.

(3) "Director" means the Director of the West Virginia State Lottery Commission, appointed pursuant to §29-22-6 of this code.

(4) "Gaming" or "interactive gaming" means wagering on any authorized interactive game. Authorized interactive games are computerized or virtual versions of any game of chance or digital simulation thereof, including, but not limited to, casino themed slot simulations, table games, and other games approved by the commission.

 (5) "Government" means any governmental unit of a national, state, or local body exercising governmental functions, other than the United States Government.

(6) "Gross interactive wagering receipts" means the total gross receipts received by a licensed gaming facility from interactive wagering.

(7) "Interactive gaming operator" or "operator" means a licensed gaming facility which has elected to operate authorized West Virginia Lottery interactive wagering activities or an interactive gaming system on behalf of or in cooperation with an interactive gaming licensee.

(8) "Interactive gaming provider" or "management services provider" means an interactive gaming licensee or an interactive gaming operator with a valid permit acting on behalf of or in partnership with an interactive gaming licensee.

(9) "Interactive wagering account" means a financial record established by a licensed gaming facility for an individual patron in which the patron may deposit and withdraw funds for interactive wagering and other authorized purchases, and to which the licensed gaming facility may credit winnings or other amounts due to that patron or authorized by that patron.

(10) "Interactive wagering agreement" means a written agreement between the commission and one or more other governments whereby persons who are physically located in a signatory jurisdiction may participate in interactive wagering conducted by one or more operators licensed by the signatory governments.

(11) "Interactive wagering fund" means the special fund in the State Treasury, created in §29-22E-17 of this code.

(12) "License" means any license, applied for or issued by the commission under this article, including, but not limited to:

(A) A license to act as agent of the commission in operating West Virginia Lottery interactive wagering at a licensed gaming facility (operator license or West Virginia Lottery interactive wagering license);

(B) A license to supply a gaming facility, licensed under this article, to operate interactive wagering with interactive wagering equipment or services necessary for the operation of interactive wagering (supplier license); or

(C) A license to be employed at a racetrack or gaming facility, licensed under this article, to operate West Virginia Lottery interactive wagering when the employee works in a designated gaming area that has interactive wagering or performs duties in furtherance of or associated with the operation of interactive wagering at the licensed gaming facility (occupational license).

(13) "Licensed gaming facility" or "gaming facility" means a designated area on the premises of an existing historic resort hotel, pursuant to §29-25-1 et seq. of this code, or the facility of an entity authorized to operate racetrack video lottery machines, pursuant to §29-22A-1 et seq. of this code, licensed under this article, to conduct West Virginia Lottery interactive wagering.

(14) "Lottery" means the public gaming systems or games regulated, controlled, owned, and operated by the State Lottery Commission in the manner provided by general law, as provided in this article, and in §29-22-1 et seq., §29-22A-1 et seq., §29-22B-1 et seq., §29-22C-1 et seq., §29-22D-1 et seq., and §29-25-1 et seq. of this code.

(15) "National criminal history background check system" means the criminal history record system maintained by the Federal Bureau of Investigation, based on fingerprint identification or any other method of positive identification.

(16) "Wager" means a sum of money or thing of value risked on an uncertain occurrence.

(17) "West Virginia Lottery interactive wagering" or "interactive wagering" or "interactive gaming" means the placing of wagers remotely and in real time on any authorized interactive game with any interactive gaming provider, using any communications technology, by means of any electronic or mobile device or other interface capable of providing a means of input and output. The term does not include:

(A) Pari-mutuel betting on the outcome of horse or dog races, authorized by §19-23-12a and §19-23-12d of this code;

(B) Lottery games of the West Virginia State Lottery, authorized by §29-22-1 et seq. of this code;

(C) Racetrack video lottery, authorized by §29-22A-1 et seq. of this code;

(D) Limited video lottery, authorized by §29-22B-1 et seq. of this code;

(E) Racetrack table games, authorized by §29-22C-1 et seq. of this code;

(F) Video lottery and table games, authorized by §29-25-1 et seq. of this code;

(G) Sports wagering, authorized by §29-22D-1 et seq.; and

(H) Daily Fantasy Sports (DFS).

(18) "West Virginia Lottery interactive wagering license" means authorization granted under this article by the commission to a gaming facility that is already licensed under §29-22A-1 et seq. or §29-25-1 et seq. of this code, which permits the gaming facility as an agent of the commission to operate West Virginia Lottery interactive wagering on the grounds where video lottery is conducted by the licensee or through any other authorized interactive platform developed by the gaming facility. This term is synonymous with "operator’s license."

§29-22E-4. Commission duties and powers.

(a) In addition to the duties set forth elsewhere in this article, and in §29-22-1 et seq., §29-22A-1 et seq., §29-22B-1 et seq., §29-22C-1 et seq., §29-22D-1 et seq., and §29-25-1 et seq. of this code, the commission shall have the authority to regulate interactive wagering and the conduct of interactive gaming.

(b) The commission shall examine the regulations implemented in other states where interactive wagering is conducted and shall, as far as practicable, adopt a similar regulatory framework through promulgation of rules.

(c) The commission has the authority, pursuant to §29A-1-1 et seq. and §29A-3-1 et seq. of this code, to promulgate or otherwise enact any legislative, interpretive, and procedural rules the commission considers necessary for the successful implementation, administration, and enforcement of this article. Rules proposed by the commission before July 1, 2020, may be promulgated as emergency rules pursuant to §29A-3-15 of this code.

(1) Rules promulgated by the commission may include, but are not limited to, those governing the acceptance of wagers on interactive games; maximum wagers which may be accepted by an operator from any one patron on any one interactive game; method of accounting to be used by operators; types of records which shall be kept; use of credit and checks by patrons; type of system for wagering; protections for patrons placing wagers; and promotion of social responsibility, responsible gaming, and inclusion of the statement, "If you or someone you know has a gambling problem and wants help, call 1-800 GAMBLER", in every designated area approved for interactive wagering and on any mobile application or other digital platform used to place wagers.

(2) The commission shall establish minimum internal control standards (MICS) and approve minimum internal control standards proposed by licensed operators for administration of interactive wagering operations, interactive wagering equipment and systems, or other items used to conduct interactive wagering, as well as maintenance of financial records and other required records.

(d) The commission shall determine the eligibility of a person to hold or continue to hold a license, shall issue all licenses, and shall maintain a record of all licenses issued under this article. The commission may accept applications, evaluate qualifications of applicants, and undertake initial review of licenses prior to promulgation of emergency rules upon the effective date of this article.

(e) The commission shall levy and collect all fees, surcharges, civil penalties, and weekly tax on adjusted gross interactive wagering receipts imposed by this article, and deposit all moneys into the interactive wagering fund, except as otherwise provided under this article.

(f) The commission may sue to enforce any provision of this article or any rule of the commission by civil action or petition for injunctive relief.

(g) The commission may hold hearings, administer oaths, and issue subpoenas or subpoenas duces tecum: Provided, That all hearings shall be conducted pursuant to the provisions of the State Administrative Procedures Act, §29A-2-1 et seq. of this code and the Lottery Administrative Appeal Procedures, W.Va. CSR §179-2-1 et seq.

(h) The commission may exercise any other powers necessary to effectuate the provisions of this article and the rules of the commission.

§29-22E-5. Licenses required.

 (a) No person may engage in any activity in connection with West Virginia Lottery interactive wagering in this state unless all necessary licenses have been obtained in accordance with this article and rules of the commission.

(b) The commission may not grant a license until it determines that each person who has control of the applicant meets all qualifications for licensure. The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company, or subsidiary company of the applicant who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation; this does not include any bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business;

(2) Each person associated with a noncorporate applicant who directly or indirectly holds a beneficial or proprietary interest in the applicant’s business operation, or who the commission otherwise determines has the ability to control the applicant; and

(3) Key personnel of an applicant, including any executive, employee, or agent, having the power to exercise significant influence over decisions concerning any part of the applicant’s business operation.

(c) License application requirements. — All applicants for any license issued under this article shall submit an application to the commission in the form the commission requires and submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require additional background checks on licensees when they apply for annual license renewal, and any applicant convicted of any disqualifying offense shall not be licensed.

(d) Each interactive wagering licensee, licensed supplier, or a licensed management services provider shall display the license conspicuously in its place of business or have the license available for inspection by any agent of the commission or any law-enforcement agency.

(e) Each holder of an occupational license shall carry the license and have some indicia of licensure prominently displayed on his or her person when present in a licensed gaming facility at all times, in accordance with the rules of the commission.

(f) Each person licensed under this article shall give the commission written notice within 30 days of any change to any information provided in the licensee’s application for a license or renewal.

(g) No commission employee may be an applicant for any license issued under this article nor may any employee of any such licensee directly or indirectly hold an ownership or a financial interest in any West Virginia Lottery interactive wagering license.

§29-31-5. Employees.

(a) The State Resiliency Officer shall have the power to hire, administer, and manage employees necessary to fulfill its responsibilities.

(1) All employees will be exempt from both the classified services category and the classified-exempt services category as set forth in §29-6-4 of this code.

(2) Employee positions are contingent upon the receipt of the necessary federal and/or state funds.

(3) Each employee hired shall be deemed an at-will employee who may be discharged or released from his or her respective position without cause or reason.

(4) Employees may participate in the PEIA, PERS, and workers' compensation and unemployment compensation programs, or their equivalents. Public safety-related positions will continue to require dual status membership as outlined in §15-1B-26 of this code.

(5) All employees and officers of the State Resiliency Office who are entrusted with funds or property shall execute surety bonds.

(b) The State Resiliency Officer will set appropriate salary rates for employees equivalent to a competitive wage rate necessary to support a specific mission.

§29-32-1. Medal of Valor.

(a) There is hereby established a Medal of Valor to be awarded to firefighters, law-enforcement officers, and emergency medical services personnel who distinguish themselves conspicuously by gallantry and intrepidity at the risk of their lives above and beyond the call of duty in the performance of their duties.

(b) A Medal of Valor may only be awarded in the manner set forth in this article.

§29-32-2. First Responders Honor Board.

(a) The First Responders Honor Board is hereby established within the Department of Homeland Security as an advisory board to the Legislature. The purpose of the board is to recommend to the Legislature firefighters, law-enforcement officers, and emergency medical services personnel in West Virginia who have distinguished themselves conspicuously by gallantry and intrepidity at the risk of their lives above and beyond the call of duty in the performance of their duties to be awarded a Medal of Valor.

(b) Board membership. —

(1) The board shall consist of two members from each of the state’s senatorial districts. Each state senator shall appoint one member representing his or her district.

(2) The board shall be composed of firefighters; fire chiefs; law enforcement officials such as sheriffs, correctional officers, and police chiefs; emergency medical services personnel; medical officials; doctors; and other professionals who are qualified to evaluate and determine whether the actions of firefighters, law-enforcement officers, and emergency medical services personnel rise to the level of being above and beyond the call of duty.

(3) Members shall serve a three-year term and shall serve without compensation.

(4) The board shall annually select a member to serve as the chair. The board shall hold at least one annual meeting. The date, time, and place of the meetings shall be established upon its own resolution or at the call of the chair of the board. Notice of each meeting shall be given to each member by the chair and in compliance with the open meetings laws of the state. A majority of the members of the board serving at any one time constitutes a quorum for the transaction of business.

(c) The board may consider candidates for the Medal of Valor who are identified by members of the board or by other citizens, and may design a system for the receipt of those recommendations.

(d) The board shall review identified individuals to determine if those firefighters, law-enforcement officers, and emergency medical services personnel have gone above and beyond the call of duty in their professional capacities. Upon determination that a firefighter, law-enforcement officer, or emergency medical services personnel is worthy of this honor, the board shall submit the nomination to the Speaker of the House of Delegates and the President of the Senate for consideration by the Legislature no later than the first day of the next legislative session, whether a regular session or extraordinary session.

§29-32-3. Law Enforcement Officers Honor Board.

 [Repealed.]

§29-32-4. Emergency Medical Services Honor Board.

[Repealed.]

§29-32-5. Awarding of the Medal of Valor.

(a) The Legislature may act on a nomination from the Honor Board established by this article by passing a concurrent resolution.

(b) Upon nomination by the First Responders Honor Board, and adoption of a concurrent resolution by the Legislature, the Governor shall bestow the Medal of Valor upon the nominee.

(c) The West Virginia Department of Arts, Culture and History shall create the design for the Medal of Valor established by this article.

§29-3B-4a. Veteran qualification for examination for license as an electrician.

Any person who has served as a member of the United States armed forces, National Guard, or reserve, and who has successfully completed the course of instruction required to qualify him or her for rating as an electrician, electrician’s mate, or other equivalent rating in his or her particular branch of the armed forces, and whose service in the armed forces was under honorable conditions, may submit to the State Fire Marshal a photostatic copy of the certificate issued to him or her certifying successful completion of such course of instruction, a photostatic copy of his or her discharge from the armed forces, an application for a certification as an electrician, and the prescribed license fee.

If the certificate and discharge, as evidenced by the photostatic copies thereof, and the application and prescribed license fee are in order, and if the veteran meets all of the requirements of this article, the veteran shall be permitted to take the same examination or examinations as are required under this article for applicants who do not apply for a license under the provisions of this article: Provided, That the veteran may be required to attend additional training courses prior to taking the examination if more than 30 years have passed from his or her successful completion of the course of instruction and date of application. If the veteran passes the examination or examinations, he or she shall be licensed as an electrician and shall thereafter be subject to all of the provisions of this article. If the veteran does not pass the examination or examinations, any provisions of this article relating to reexaminations shall apply to the veteran the same as they apply to a person who does not apply for a license under the provisions of this article.

§29-3D-4a. Veteran qualification for license as a journeyman sprinkler fitter or a sprinkler fitter in training.

Any person who has served as a member of the United States armed forces, National Guard, or reserve, and who has successfully completed the course of instruction required to qualify him or her for rating as a fire protection officer or other equivalent rating in his or her particular branch of the armed forces, which provided the veteran direct experience installing, adjusting, repairing, and dismantling fire protection systems, and whose service in the armed forces was under honorable conditions, may submit to the State Fire Marshal a photostatic copy of a certificate issued to him or her certifying successful completion of such course of instruction and documentation evidencing the number of hours of experience the veteran possesses, a photostatic copy of his or her discharge from the armed forces, an application for a certification as a journeyman sprinkler fitter or sprinkler fitter in training, and the prescribed license fee.

If the certificate and discharge, as evidenced by the photostatic copies thereof, documentation of hours of training and experience, and prescribed license fee are in order, and if the veteran meets all of the requirements of this article, the veteran shall be permitted to take the same examination or examinations as are required under this article for applicants who do not apply for a license under the provisions of this article: Provided, That the veteran may be required to attend additional training courses prior to taking the examination if more than 30 years have passed from his or her successful completion of the course of instruction and date of application. If the veteran passes the examination or examinations, he or she shall be licensed as a sprinkler fitter in training or a journeyman sprinkler fitter and shall thereafter be subject to all of the provisions of this article. If the veteran does not pass the examination or examinations, any provisions of this article relating to reexaminations shall apply to the veteran the same as they apply to a person who does not apply for a license under the provisions of this article.

§29-3-5g. Class B fire-fighting foam.

(a) The State Fire Commission shall, on or before July 1, 2021, propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to provide:

(1) Standard safe practices for the discharge or otherwise use class B fire-fighting foam that contains intentionally added polyfluoroalkyl substances (PFAS).

(2) For purposes of this section:

“Aqueous Film Forming Foam (AFFF)” means a fluorinated surfactant with a foam stabilizer which is diluted with water to act as a temporary barrier to exclude air from mixing with the fuel vapor by developing an aqueous film on the fuel surface of some hydrocarbons which is capable of suppressing the generation of fuel vapors.

"Class B fire-fighting foam" means any foam designed to extinguish flammable liquid fires.

"PFAS chemicals" means nonpolymeric perfluoroalkyl and polyfluoroalkyl substances that are a group of man-made chemicals that contain at least two (2) fully fluorinated carbon atoms, excluding gases, and volatile liquids.

"Testing" means calibration testing, conformance testing, or fixed system testing.

"Testing Facility" allows the discharge of foam in a non-emergency situation for the evaluation and calibration of firefighting equipment and foam. This facility may also have the capability to provide some level of needed training for firefighters.

"Fixed Foam System" means a complete installation piped from a central foam station, discharging through fixed discharge devices on the flammable liquid hazard being protected. Foam proportioning components are permanently installed.  The system has been engineered for the hazard and often contains multiple (UL or FM) listed components and foam.

"Foam Training Facility" shall mean to allow the discharge of foam in a nonemergency situation for the training of firefighters and readiness of equipment.  This facility may also have the capability to provide some level of needed evaluation and calibration of equipment and foam.

(b) On or after July 1, 2021, no person, fire department, state department, agency, board, bureau, office, commission, public corporation, or authority; county, municipal corporation, school district, or other political subdivision of this state may discharge or otherwise use class B fire-fighting foam that contains intentionally added PFAS chemicals unless:

(1) The discharge or other use occurs in fire prevention or in response to an emergency fire-fighting operation; or

(2) The discharge or other use is for training or testing purposes which occurs at a facility that has implemented containment, storage, treatment, and disposal measures to prevent uncontrolled releases of such class B fire-fighting foam into the environment.

(c) Nothing in this code section may be construed to:

(1) Restrict the manufacture, sale, or distribution of class B fire-fighting foam that contains intentionally added PFAS chemicals or restrict the discharge or other use of class B fire-fighting foam in response to an emergency fire-fighting operation; or

(2) Prevent the use of nonfluorinated foams, including other class B fire-fighting foams, for purposes of training for fire-fighting operations.

(d) The State Fire Commission may establish work groups and seek input in the rulemaking process from groups or individuals with an interest in any aspect of the use of class B fire-fighting foams.

(e) The State Fire Commission shall find a method to dispose of used or accumulated AFFF and other class B fire-fighting foams, including, but not limited to, transporting the contained AFFF to an accredited disposal company. If necessary, the State Fire Commission shall contract with an accredited disposal company for this purpose. The State Fire Commission may coordinate with the Department of Environmental Protection to ensure safe disposal.

§29-1-8c. State Library Section.

(a) There is hereby created a West Virginia State Library Section under the Department of Arts, Culture, and History.

(b) The State Library Commission is continued as an advisory council to support the West Virginia State Library Section, and shall consist of the Curator of the Department of Arts, Culture, and History as an ex officio voting member and six voting members.

(1) The Governor shall appoint, by and with the advice and consent of the Senate, the voting members of the commission each for a term of four years:

(A) No more than three appointed members may reside in the same congressional district;

(B) The Governor shall make the initial appointment of State Library Commission members for staggered terms as follows: Two members, one from each congressional district, for a term of two years; two members, one from each congressional district, for a term of three years; and two members, one from each congressional district, for a term of four years; and

(C) Three appointed members of the commission shall be women and three appointed members shall be men.

(2) No member of the State Library Commission may receive compensation for services rendered, nor be engaged or interested in the publishing business.

(3) On or before the expiration of the terms for which the members are appointed, the Governor shall appoint their successors.

(b) The Curator of the Department of Arts, Culture, and History shall appoint a library section director, with the advice and consent of the State Library Commission, to carry out the duties and functions of the State Library Section outlined in this section through the Department of Arts, Culture, and History library section. The library section director shall have at least the following qualifications: A master’s degree from an American Library Association-accredited program in a library-related discipline and three years of management or administrative work experience in a library. The library section director shall also serve as the Secretary of the State Library Commission for the purpose of board meetings.

(c) The State Library Commission shall advise the curator and the library section director on carrying out certain duties and functions of the State Library Section, as provided in this section.

(d) General authority of the State Library Section. —

(1) The State Library Section shall provide assistance, advice, and counsel to all school, state-institutional, free and public libraries, and to all communities in the state which may propose to establish libraries, as to the best means of establishing and administering them, selecting and cataloging books, and other details of library management, and may send any of its members to aid in organizing such libraries or assist in the improvement of those already established.

(2) The State Library Section may:

(A) Receive gifts of money, books, or other property which may be used or held for the purpose or purposes given; and may purchase and operate traveling libraries under such conditions and rules as the commission deems necessary to protect the interests of the state and best increase the efficiency of the service it is expected to render the public.

(B) Purchase suitable books for traveling libraries and distribute them as needed to those persons and places in the state without adequate public library service.

(C) Collect books and other suitable library matter and distribute the same among state institutions desiring the same.

(D) Issue and offer for sale printed material, such as lists and circulars of information, and in the publication thereof may cooperate with other state library commissions and libraries, in order to secure the more economical administration of the work for which it was formed.

(E) Conduct courses of library instruction and hold librarians’ institutes in various parts of the state.

(F) Perform such other services on behalf of public libraries as it may consider to be in the best interest of the state.

(e) West Virginia Program for Open Education Resources; material description. —

(1) The State Library Section shall establish and maintain the West Virginia Program for Open Education Resources to encourage and facilitate the use of open education resource materials in both higher education and kindergarten through grade 12 in West Virginia schools.

(2) “Open education resource materials” means teaching, learning, and resource materials in any medium, digital or otherwise, that reside in the public domain or have been released under an open license that permits low-cost access, use, adaptation, and redistribution by others with no or limited restrictions.

(3) The State Library Commission may consult with the Higher Education Policy Commission, the West Virginia Council for Community and Technical College Education, and the State Superintendent of Schools, or his or her designee, to:

(A) Ascertain what institutions or faculty are currently using open education resource material;

(B) Identify material currently associated with core general education courses and readily available for use by faculty and institutions;

(C) Identify any statutory or other impediments which interfere with selection and use of open education resource materials by administrators or teachers at all levels of instruction in West Virginia schools;

(D) Identify sources of potential grants for funding for teachers and institutions to use open education resource materials for classes and courses, and propose a competitive application system to award grant funding for those faculty and institutions seeking to use the open education resource materials;

(E) Establish a digital clearinghouse that will function as a publicly accessible database for open education resource material;

(F) Develop strategies to leverage further open education resource material to benefit higher education institutions and school systems, as well as private and foundation support for the project; and

(G) Report no later than July 1 of each year the program’s findings, progress, and recommendations to the State Library Section, the Governor, and the chairs of the Legislature’s House and Senate Committees on Education.

(f) State Library Section—disposition of monetary gifts. —

(1) If any sums of money are received by the State Library Section as gifts, they shall be paid into the State Treasury and used exclusively for carrying out the provisions of this section, and paying expenses of the State Library Section and the State Library Commission.

(2) The State Library Section shall expend no sums unless they are available by gift, appropriation, or otherwise.

(g) Regional libraries and library areas — establishment and location. —

(1) The State Library Commission is hereby authorized to develop a plan for the establishment and location of regional libraries, and library areas throughout the state, based on a detailed survey to be made by the State Library Commission of the needs of the various localities of the state. A region shall include two or more counties.

(2) On completion of such survey of any proposed region, the State Library Commission shall report their findings to the State Library Section and the state library director, who may refer the proposal to the county commissions or councils of all the counties included in such proposed region. The county commissions or councils may act upon such proposal by resolution, and the votes of a majority of each of the county commissions or councils of the counties included in the proposed region shall be necessary for the adoption of such proposal. The proposal may be amended and resubmitted as necessary.

(3) The State Library Section may, with advice and input from the State Library Commission, and as the state library director may consider necessary or beneficial:

(A) Establish, maintain, and operate a public library for the region;

(B) Appoint a librarian and the necessary assistants, and fix their compensation, such appointments to be based upon merit and efficiency as determined by the state library section director. The librarian shall hold a certificate from an approved school of library science and shall have had not less than three years of practical experience in library work. The state library section director may also remove said librarian and other assistants;

(C) Purchase books, periodicals, equipment, and supplies;

(D) Purchase sites and erect buildings, or lease suitable quarters, and have supervision and control of that property;

(E) Borrow books from and lend books to other libraries;

(F) Enter into contracts to receive service from, or give service to, libraries within or without the region and give service to municipalities without the region that have no libraries, or cooperate with and aid generally, without such contracts, public school, institutional, and other libraries;

(G) Make such bylaws, rules, and regulations not inconsistent with this article as may be expedient for the government of regional library areas and the regional libraries therein, and for the purpose of carrying out the provisions of this article; and

(H) Accept for the State of West Virginia any appropriations of money that may hereafter be made out of the federal treasury by an act or acts of Congress and to disburse such funds for the purpose of carrying out the provisions of this article, in accordance with §18-10-11 and §18-10-12 of this code.

(h) Aid to libraries by State Library Section.—

(1) The State Library Section may render such aid and assistance, financial, advisory or otherwise, to public, school, county, or regional libraries, whether established or maintained by the State Library Section or not, under such conditions and rules and regulations as the State Library Section may determine necessary to further the interests of the state and best increase the efficiency of the service it is expected to render the public.

(2) The State Library Commission may review and analyze the status of libraries across the state and advise the State Library Section on projects and libraries for which it has determined the development and support of will further the education of the people of the state as a whole and will thereby aid in the discharge of the responsibility of the state to encourage and foster education. The West Virginia Library Section may pay over and contribute to any board of library directors created and maintained pursuant to the provisions of this section or any special act of the Legislature such sum or sums of money as may be available from funds included in appropriations made for the State Library Section for that purpose.

(i) Collection and preservation of library data; surveys; employment of personnel; use of data.

(1) The State Library Section may collect and preserve statistics and other data, concerning libraries of any sort located within this state; to make surveys relating to the needs or conditions of such libraries or the library conditions of any city, town, county, regional library area, or other subdivision of this state; and to publish the results and findings thereof in accordance with the provisions of this section.

(2) The State Library Section may employ necessary personnel for any of these purposes.

(3) Such data, surveys, and findings of the State Library Section shall be available to all school, public, institutional, regional, and other libraries within this state, whether proposed or established.

(j) Confidential nature of certain library records.—

(1) Circulation and similar records of any public library in this state which identify the user of library materials are not public records but shall be confidential and may not be disclosed except:

(A) To members of the library staff in the ordinary course of business, including paid employees and unpaid volunteers upon completing a written confidentiality agreement which shall prevent disclosure of circulation records, personal information, and similar records of any public library except to the extent allowed under this subsection and obtaining written permission from the library director of the library system wherein he or she will be working;

(B) Upon written consent of the user of the library materials or the user’s parents or guardian if the user is a minor or ward; or

(C) Upon appropriate court order or subpoena.

(2) Any disclosure authorized by subdivision (1) of this subsection, or any unauthorized disclosure of materials made confidential by subdivision (1), does not in any way destroy the confidential nature of that material, except for the purpose for which an authorized disclosure is made. A person disclosing material as authorized by subdivision (1) of this subsection is not liable therefor.

(k) Library Facilities Improvement Fund.—

(1) There is continued in the State Treasury a special fund known as the Library Facilities Fund. Expenditures from the fund shall be for the purposes set forth in this section. The fund shall be administered by the State Library Section.

(2) The fund shall consist of moneys received from the following sources:

(A) All appropriations made by the Legislature to the fund;

(B) Any moneys available from sources outside the State Library Section;

(C) Repayment of loans made by the State Library Section pursuant to this section; and

(D) All interest and other income earned from investment of moneys in the fund.

(3) The State Library Section shall utilize moneys in the fund to support public library facilities construction, renovation, maintenance, and improvement projects. The State Library Section shall evaluate potential recipient projects of funds from the fund on a competitive basis.

(A) The State Library Section may provide loans to public libraries to support energy savings and critical maintenance projects with moneys in the fund.

(B) With the exception of loans made under this section, the State Library Section may not expend any money from the fund toward a particular project unless the proposed expenditure is matched on a dollar-for-dollar basis by other sources.

(4) The State Library Section shall propose a rule for legislative approval in accordance with §29A-3-1 et seq. of this code to implement the provisions of this section. The rule shall contain at least the following:

(A) A process for submitting and reviewing proposals;

(B) The content of proposals;

(C) Criteria for evaluating proposals; and

(D) Other provisions the State Library Section considers necessary to administer the program in accordance with this section.

(5) Any balance, including accrued interest and any other returns, in the fund at the end of each fiscal year will not expire to the General Revenue Fund but remain in the fund and be expended for the purposes provided by this section.

(6) In any calendar year, the State Library Section may not allocate an amount in excess of four percent of the balance of the fund on December 31 of the immediately preceding calendar year for administrative expenses.

(7) The State Library Section may invest any or all of the balance of the fund with the state’s Consolidated Investment Fund.

(l) Any rules promulgated by the Library Commission will remain in full force and effect until amended, repealed, or superseded by another rule promulgated by the Library Commission or State Library Section.

§29-1-8d National Coal Heritage Area Commission.

(a)(1) The National Coal Heritage Area originally was a partnership project of the National Park Service and the State of West Virginia as represented by the Division of Tourism and the Division of Culture and History. In January 1999, the Governor of West Virginia appointed 28 experts from the state and the region to the National Coal Heritage Area Steering Committee to provide guidance in the development of the National Coal Heritage Area, and in 2002 the West Virginia Legislature created the National Coal Heritage Area Authority, a state agency with an independent board, to serve as the management entity for the National Coal Heritage Area.

(2) The West Virginia Legislature finds that there continues to be a significant need for a public body to promote and enhance historic preservation, tourism, and economic development activities that relate to the state’s history as a coal-producing state within the counties of Boone, Cabell, Fayette, Lincoln, Logan, Kanawha, Marion, McDowell, Mercer, Mingo, Raleigh, Summers, Wayne, and Wyoming.

(3) The Legislature additionally finds that the state entity previously known as the National Coal Heritage Area Authority may more effectively serve the people of West Virginia through the Department of Arts, Culture, and History as the National Coal Heritage Area Commission, where it will continue to work with the landowners, county officials, and community leaders, state and federal government agencies, and other interested parties to enable and facilitate the development of the National Coal Heritage Area will greatly assist in the realization of these potential benefits.

(b) Unless the context clearly requires a different meaning, the terms used in this section have the following meanings:

(1) “Commission” means the National Coal Heritage Area Commission;

(2) “Department” means the Department of Arts, Culture, and History; and

(3) “National Coal Heritage Area” means and comprises the counties of Boone, Cabell, Fayette, Lincoln, Logan, Kanawha, McDowell, Mercer, Mingo, Raleigh, Summers, Wayne, and Wyoming.

(c) Creation; appointment of commission; terms; expenses; executive director:

(1) There is hereby created the National Coal Heritage Area Commission which is a division of the Department of Arts, Culture, and History, existing for the purposes of providing direction to and assistance with state and federal historic preservation, economic development, and tourism projects in the National Coal Heritage Area and aiding in the development and implementation of integrated cultural, historical, and land resource management policies and programs in order to retain, enhance, and interpret the significant values of the lands, waters, and structures in the National Coal Heritage Area.

(2) The commission shall be composed of, at a minimum, 19 members as follows:

(A) The following six persons shall be nonvoting members, and shall serve by virtue of their offices, and may be represented at meetings of the commission by designees:

(i) The Curator of the Department of Arts, Culture, and History, or his or her designee;

(ii) The Secretary of the Department of Environmental Protection, or his or her designee;

(iii) The Secretary of the Department of Tourism, or his or her designee;

(iv) The Secretary of the Department of Economic Development, or his or her designee;

(v) The State Superintendent of Schools, or his or her designee; and

(vi) The Director of the Division of Natural Resources, or his or her designee;

(B) The remaining 13 members shall be appointed for terms of four years by the Governor with the advice and consent of the Senate. The county commission of each county within the National Coal Heritage Area may submit to the Governor a list of three candidates to be considered for board appointment. Of the 13 members appointed by the Governor, each candidate must live or work within the subject county and the appointees shall be representative of the tourism industry, the coal industry, the United Mine Workers of America, economic development activity, historic preservation activity, or higher education. Additional counties may submit names of individuals fitting the above criteria for consideration as ex-officio, non-voting, board membership;

(C) The terms of office shall be four years and shall expire on June 30. No appointed member may serve more than two consecutive full terms. A member shall continue to serve until his or her successor has been appointed and qualified;

(D) If an appointed member is unable to complete a term, the Governor shall appoint a person to complete the unexpired term. Each vacancy occurring on the board must be filled within 60 days after the vacancy is created;

(E) Any appointed member of the board shall immediately and automatically forfeit his or her membership on the board if he or she becomes a nonresident of the county, or ceases to be employed in the county, from which he or she was appointed;

(F) Each member of the board shall serve without compensation, but shall receive expense reimbursement for all reasonable and necessary expenses actually incurred in the performance of the duties of the office, in the same amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law: Provided, That no member may be reimbursed for expenses paid by a third party.

(3) The Curator of the Department of Arts, Culture, and History shall appoint a director to carry out the actions of the board, which appointment may be in addition to other duties, to serve at the will and pleasure of the curator. The director may employ necessary personnel and retain such temporary consultants or technicians as may be necessary for any special study or survey consistent with the provisions of this section. The director shall carry out plans to implement the provisions of this section and to exercise those powers. The director shall prepare annually, in consultation with the board, a budget for the commission.

(d) Board; quorum; chairperson; bylaws.—

(1) The board is the governing body of the National Coal Heritage Area Commission, and may exercise all the powers given the commission in this section.

(2) The director shall serve as the board chairperson. The board shall meet at such times as shall be specified by the chairperson, but in no case less than quarterly. A majority of seven appointed members shall constitute a quorum for the transaction of business.

(3) There shall be a standing committee of the National Coal Heritage Area Commission known as the Coal Heritage Trail Committee composed of the chairperson and members of the National Coal Heritage Area from the counties through which the Coal Heritage Trail passes. These counties are Mercer, McDowell, Wyoming, Raleigh, and Fayette. This standing committee shall be responsible for making recommendations to the full board regarding development and promotion of the Coal Heritage Trail, a national scenic byway.

(4) The board shall prescribe, amend, and repeal bylaws and rules governing the manner in which the business of the commission is conducted, shall keep a record of its proceedings, and shall review and approve an annual budget. The board may appoint such officers as necessary to carry out its meetings.

(e) Powers of commission.—

The commission may exercise all powers necessary or appropriate to carry out the purposes of this section, including, but not limited to, the power:

(1) To assist in the development and implementation of integrated cultural, historical, and land resource management policies and programs in the National Coal Heritage Area;

(2) To advise the executive director of the National Coal Heritage Commission in retaining, enhancing, and interpreting the significant values of the lands, waters, and structures of the area;

(3) To enter into partnerships with various preservation groups, landmark commissions, certified local governments, county commissions, and other entities to undertake the preservation, restoration, maintenance, operation, development, interpretation, and promotion of lands and structures that possess unique and significant historic, architectural, and cultural value associated with the coal mining heritage of the national coal heritage area;

(4) To make, amend, repeal, and adopt bylaws for the management and regulation of its affairs;

(5) To appoint officers, agents, and employees, and to contract for and engage the services of consultants;

(6) To execute contracts necessary or convenient for carrying on its business, including contracts with any other governmental agency of this state or of the federal government, or with any person, individual, partnership, or corporation to effect any or all of the purposes of this article;

(7) Without in any way limiting any other subdivision of this section, to accept grants and loans from and enter into contracts and other transactions with any federal agency;

(8) To maintain an office at such places within the state as it may designate;

(9) To accept gifts or grants of property, funds, money, materials, labor, supplies, or services from the federal government or from any governmental unit, or any person, firm, or corporation;

(10) To construct, reconstruct, improve, maintain, repair, operate, and manage certain facilities in the National Coal Heritage Area as may be determined by the commission;

(11) To enter into contract with landowners and other persons holding an interest in the land being used for its recreational facilities to hold those landowners and other persons harmless with respect to any claim in tort growing out of the use of the land for public recreation or growing out of the public activities operated or managed by the commission from any claim except a claim for damages proximately caused by the willful or malicious conduct of the landowner or other person or any of his or her agents or employees; and

(12) To assess and collect a reasonable fee from those persons who use the designated facilities which are part of the national coal heritage area, and to retain and utilize that revenue for any purposes consistent with this article.

(f) Continuation of legal obligations. —

Nothing in this section may be considered as superseding, amending, modifying, or repealing any contract or agreement entered into for the benefit of the National Coal Heritage Area prior to the date of enactment of this section. All obligations, contracts, grants, and assets currently belonging to the Coal Heritage Highway Authority and the National Coal Heritage Area Authority shall be transferred to and become the responsibility and property of the National Coal Heritage Area Commission.

§29-33-1. Applicability.

The provisions of this article apply to all professions requiring an occupational license or other authorization to practice or perform a specific occupation in this state regulated by this chapter. This article may be known and cited as the “RECAP Act.”

§29-33-10. Cost for application.

The board may charge a fee to the person to recoup its costs. The fee may not exceed the cost of an application for original licensure charged by the board. Any application for renewing a license after obtaining a license under this article shall comply with the board’s established renewal procedures and fee schedule.

§29-33-11. Preemption.

This article preempts laws by township, municipal, county, and other governments in the state which regulate occupational licenses and other authorization to practice.

§29-33-12. Rulemaking.

Boards affected by these provisions may promulgate rules pursuant to §29A-3-1 et seq. of this code to carry out the provisions of this article.

§29-33-2. Definitions.

The words defined in this section have the meanings given them for purposes of this article unless the context clearly requires otherwise.

“Board” means a government agency, board, department, or other government entity that regulates a lawful occupation and issues an occupational license or other authorization to practice to an individual.

“Lawful occupation” means a course of conduct, pursuit, or profession that includes the sale of goods or services that are not themselves illegal to sell irrespective of whether the individual selling them is subject to an occupational license.

“Occupational license” is a nontransferable authorization in law for an individual to perform or practice a lawful occupation based on meeting personal qualifications established by the Legislature. In an occupation for which a license is required, it is illegal for an individual who does not possess a valid occupational license to perform or practice the occupation.

“Other authorization to practice” is a nontransferable acknowledgment, other than a license, by a state government or board that is provided to an individual asserting that the individual has met the educational and examination requirements to engage in a lawful occupation.

“Other state” or “another state” means any United States territory or state in the United States other than West Virginia.

“Scope of practice” means the procedures, actions, processes, and work that a person may perform under an occupational license or other authorization to practice issued in this state.

§29-33-3. Occupational license or other authorization to practice.

(a) Notwithstanding any other law, the board shall issue an occupational license or other authorization to practice to a person upon application, if all the following apply:

(1) The person holds a valid occupational license or other authorization to practice in another state in a lawful occupation with a similar scope of practice and with education, experience, and examination requirements for licensure or authorization to practice similar to those of this state, as determined by the board in this state;

(2) The person has held the occupational license or other authorization to practice in the state where he or she holds a valid license or other authorization to practice for at least one year;

(3) The person has met all educational and examination requirements for occupational licensure or other authorization to practice in the state where he or she holds a valid license;

(4) The person is in good standing with the board in every other state where he or she holds a valid license;

(5) The person has established residency as a West Virginia resident as defined by §11-21-7(a) of this code;

(6) The person does not have a disqualifying criminal record as determined by the board in this state;

(7) The person has never had his or her license or other authorization to practice revoked by the board in another state because of negligence or intentional misconduct related to the person’s work in the occupation;

(8) The person did not surrender an occupational license or other authorization to practice because of negligence or intentional misconduct related to the person’s work in the occupation in another state;

(9) The person does not have a complaint, allegation, or investigation pending before a board in another state. If the person has a complaint, allegation, or investigation pending, the board in this state shall not issue or deny an occupational license or other authorization to practice to the person until the complaint, allegation, or investigation is resolved; and

(10) The person pays all applicable fees and meets all applicable bonding requirements in this state.

(b) If West Virginia requires an occupational license to lawfully work in a profession, and another state does not issue an occupational license for the same profession and instead issues another authorization to practice, West Virginia shall issue an occupational license to the person if the person otherwise satisfies subsection (a) of this section.

(c) Any person issued a license under this article must comply with all relevant continuing education requirements to renew a license established by the board and any other rule promulgated by the board as required in §29-33-8 of this code.

§29-33-4. Work experience.

Notwithstanding any other law, the board shall issue an occupational license or other authorization to practice to a person upon application based on work experience in another state, if all the following apply:

(1) The person worked in a state that does not use an occupational license or other authorization to practice that regulates a lawful occupation, but this state uses an occupational license or other authorization to practice that regulates a lawful occupation with a similar scope of practice, as determined by the board;

(2) The person worked for at least two years in the lawful occupation and has acquired experience demonstrating knowledge and proficiency in the occupation similar to that which may be achieved through compliance with the education and examination requirements to practice of this state, as determined by the board;

(3) The person has taken and passed any required national examinations to lawfully practice the occupation or use a title in connection with an occupation in another state; and

(4) The person satisfies §29-33-3(a)(5), §29-33-3(a)(6), and §29-33-3(a)(10) of this code.

§29-33-5. State law examination.

A board may require a person to pass a jurisprudential examination specific to relevant West Virginia laws that regulate the occupation if an occupational license or other authorization to practice in this state requires a person to pass such examination for original licensure.

§29-33-6. Decision.

The board will provide the person with a written decision issuing or denying a license within 60 days after receiving a complete application.

§29-33-7. Appeal.

(a) The person may appeal the board’s decision to a court of general jurisdiction in the county where the person resides.

(b) The person may appeal the board’s:

(1) Denial of an occupational license or other authorization to practice;

(2) Determination of the occupation;

(3) Determination of the similarity of the scope of practice of the occupational license or other authorization to practice; or

(4) Other determinations under this article.

§29-33-8. State laws and jurisdiction.

A person who obtains an occupational license or other authorization to practice pursuant to this article is subject to:

(1) The laws regulating the occupation in this state; and

(2) The jurisdiction of the board in this state.

§29-33-9. Limitations.

(a) An occupational license or other authorization to practice issued pursuant to this article is valid only in West Virginia. It does not make the person eligible to work in another state under an interstate compact or reciprocity agreement unless otherwise provided in law.

(b) Nothing in this article prevents West Virginia from entering into a licensing compact or reciprocity agreement with another state, foreign province, or foreign country.

(c) Nothing in this article prevents West Virginia from recognizing occupational credentials issued by a foreign province, foreign country, international organization, or other entity.

§29-34-1. Short title; legislative findings; purpose.

(a) This article may be known and cited as the Recovery and Hope Act.

(b) The West Virginia Legislature finds that:

(1) The substance use disorder epidemic in the State of West Virginia has created a public health crisis, an economic crisis, and a social services crisis for our state;

(2) The State of West Virginia, through its various governmental branches and state agencies, offers several programs to assist the citizens of West Virginia battling substance use disorder, likewise, there are numerous programs offered by the federal government, local governments, and private entities to combat this epidemic; and

(3) Creation of the State Recovery and Hope Office is necessary to further the positive results of the Jobs and Hope Program implemented to date and to facilitate and coordinate the various programs offered through the State of West Virginia by and with the assistance of the legislative branch, the judicial branch, various federal agencies, local governments, community advocates, and private sector partners related to the prevention, treatment, and reduction of substance use disorder.

(c) It is the purpose of this article to create an office under the Office of the Governor to focus the comprehensive and coordinated statewide approach to provide West Virginians in need of treatment for substance use disorder with the support and assistance necessary to help provide assistance to combat addiction, as well as to assist those in recovery by providing them opportunities to obtain career training and to ultimately secure meaningful employment, thereby further bettering our people, our communities, and economic opportunities in this state. The office created by this article shall utilize the personnel and resources of the Department of Health and Human Resources and relevant agencies thereunder to the greatest extent practicable.

§29-34-2. State Recovery and Hope Office.

(a) The State Recovery and Hope Office is hereby created. The office shall be organized within the Office of the Governor. The office will serve as the coordinating agency of recovery efforts.

(b) The State Recovery and Hope Officer shall be appointed by the Governor with the advice and consent of the Senate.

(c) The State Recovery and Hope Officer shall be vested with the authority and duties prescribed to the office within this article.

(d) The State Recovery and Hope Officer shall be a person who has:

(1) Managerial and strategic planning experience in matters relating to substance use disorder treatment, recovery, and transition into the workforce; and

(2) Be thoroughly knowledgeable in matters relating to substance use disorder treatment, recovery, and matters relating thereto.

(e) The State Recovery and Hope Office shall be tasked with coordinating efforts toward the provision of needed assistance for those in treatment for substance use disorder, toward transitioning those in recovery with the opportunity to obtain career training, and toward ultimately securing meaningful employment.

§29-34-3. Authority of State Recovery and Hope Office and State Recovery and Hope Officer.

The State Recovery and Hope Office will coordinate the state’s efforts to assist those experiencing substance use disorder in their recovery and transition into the workforce. The State Recovery and Hope Officer shall serve as the primary representative of the Governor, and the agencies and departments of the state shall provide assistance, information, data, and/or resources to the State Recovery and Hope Office as may be requested from time to time. The State Recovery and Hope Officer will assist and advise the Governor on all recovery and workforce training issues for this population, and will serve as a liaison between the Governor’s office and all other parties, whether state, federal, local, or private to further the purposes of this article. The State Recovery and Hope Officer will:

(1) Coordinate all planning and implementation efforts relating to substance use disorder treatment, recovery, and transition into the workforce;

(2) Coordinate an annual review of plans relating to substance use disorder treatment, recovery, and transition into the workforce;

(3) Recommend legislation to better facilitate the implementation of recovery efforts;

(4) Report to legislative committees, as called upon to do so;

(5) Establish and facilitate regular communication between federal, state, local, and private sector agencies and organizations to further recovery efforts;

(6) Receive resources, monetary or otherwise, from any other governmental entity or private source and disburse those resources to effectuate the purposes of this article;

(7) Execute cooperative agreements, where appropriate;

(8) Contract, where appropriate, on behalf of the State Recovery and Hope Office, with the federal government, its instrumentalities and agencies, any state, territory, or the District of Columbia, and its agencies and instrumentalities, municipalities, public bodies, private corporations, partnerships, associations, and individuals;

(9) Hire necessary employees at an appropriate salary equivalent to a competitive wage rate;

(10) Enroll appropriate employees in the Public Employees Retirement System, the Public Employees Insurance Agency, and workers’ compensation and unemployment programs, or their equivalents: Provided, That the State Recovery and Hope Office, through the receipt of federal or state funds, or both, pays the required employer contributions;

(11) Have the ability to secure all other bonding, insurance, or other liability protections necessary for its employees to fulfill their duties and responsibilities;

(12) Utilize the personnel and resources of the Department of Health and Human Resources to the greatest extent practicable, and have the ability to draw upon other departments, divisions, agencies, and all other subdivisions of the state for research and input in fulfilling the requirements of this article, or to facilitate the implementation of the purposes of this article, and its requests are to have priority over other such requests;

(13) Participate in the interdepartmental transfer of permanent state employees, as if he or she were a department secretary, under the provisions of §5F-2-7 of this code;

(14) Notwithstanding any other provision of this code to the contrary, acquire legal services that are necessary, including representation of the office, its employees, and officers before any court or administrative body from the Office of the Attorney General, who shall provide such legal assistance and representation;

(15) Take all other actions necessary and proper to effectuate the purposes of this article; and

(16) The office shall have any other additional authority, duties, and responsibilities as prescribed by the Governor to effectuate the purposes of this article. Due to the at-will employment relationship with the office, its employees may not avail themselves of the state grievance procedure as set forth in §6C-2-1 et seq. of this code.

§29-34-4. Employees.

(a) The State Recovery and Hope Officer shall have the power to hire, administer, and manage employees, but only to the extent necessary to fulfill the office’s responsibilities.

(1) Any and all employees will be exempt from both the classified services category and the classified-exempt services category as set forth in §29-6-4 of this code.

(2) Employee positions are contingent upon the receipt of the necessary federal or state funds, or both.

(3) Any employee hired shall be deemed an at-will employee who may be discharged or released from his or her respective position without cause or reason.

(4) Any employee may participate in the Public Employees Insurance Agency, the Public Employees Retirement System, and workers' compensation and unemployment compensation programs, or their equivalents.

(5) Any employees and officers of the State Recovery and Hope Office who are entrusted with funds or property shall execute surety bonds.

(b) The State Recovery and Hope Officer will set appropriate salary rates for any employees equivalent to a competitive wage rate necessary to support a specific mission.

§29-35-1. Short title; purpose.

(a) This article may be known and cited as the West Virginia Workforce Resiliency Act.

(b) It is the purpose of this article to establish an office within the Office of the Governor to coordinate workforce development, job training, education, and related programs and initiatives across agencies and entities to continue to grow West Virginia’s workforce and provide greater options for West Virginians seeking work and West Virginia businesses seeking employees.

§29-35-2. West Virginia Workforce Resiliency Office.

(a) It is determined that a state authority is necessary to coordinate and better facilitate efforts toward workforce development, job training, education, and resource management between government agencies, private partners, federal programs, and all other entities working to develop, train, and reinvigorate West Virginia’s workforce. Therefore, the West Virginia Workforce Resiliency Office is hereby created.

(b) The West Virginia Workforce Resiliency Office shall be organized within the Office of the Governor:

(1) The West Virginia Workforce Resiliency Officer shall be appointed by the Governor with the advice and consent of the Senate;

(2) The West Virginia Workforce Resiliency Officer shall be vested with the authority and duties prescribed to the office within this article; and

(3) The West Virginia Workforce Resiliency Officer shall be a person who has managerial or strategic planning experience in matters relating to workforce development, job training, or related fields.

§29-35-3. Authority of West Virginia Workforce Resiliency Office and West Virginia Workforce Resiliency Officer.

The West Virginia Workforce Resiliency Officer shall:

(a) Coordinate and work with the Commissioner of WorkForce West Virginia; the Secretary of the Department of Economic Development; the Secretary of the Department of Commerce; the Secretary of the Department of Health and Human Resources; the Secretary of the Department of Tourism; the Chancellor of the Higher Education Policy Commission; the President of West Virginia University; the President of Marshall University; the Director of the West Virginia Economic Development Authority; and such other representatives of private and public partners involved in workforce development as the West Virginia Workforce Resiliency Officer may deem necessary, to facilitate and unify efforts for workforce development, job training, and education of West Virginia’s workforce.

(b) Assist in the development, implementation, and management of a common application for workforce development, job training, and wrap-around services available across agencies and programs, which shall be established to ensure that West Virginians encounter no wrongdoer when seeking out services and programs that may be available to them.

(c) Advise the Office of the Governor on the status and overall workforce development landscape across the State of West Virginia and assist in developing policies, plans, and procedures that will ensure that state agencies, private partners, and federal programs are efficiently, effectively, and properly utilized for workforce development across the State of West Virginia.

(d) Propose opportunities for legislative changes to the Office of the Governor that may result in more efficient, effective, and expedient access to programs across the State of West Virginia to improve workforce development.

§29-35-4. Employees of the office.

(a) The West Virginia Workforce Resiliency Officer shall have the power to hire, administer, and manage employees necessary to fulfill its responsibilities:

(1) All employees will be exempt from both the classified services category and the classified-exempt services category as set forth in §29-6-4 of this code;

(2) Employee positions are contingent upon the receipt of necessary federal and/or state funds;

(3) Each employee hired shall be deemed an at-will employee who may be discharged or released from his or her respective position without cause or reason;

(4) Due to the at-will employment relationship with the office, its employees may not avail themselves of the state grievance procedure as set forth in §6C-2-1 et seq. of this code;

(5) Employees may participate in the PEIA, PERS, workers' compensation, and unemployment compensation programs, or their equivalents; and

(6) All employees and officers of the West Virginia Workforce Resiliency Office who are entrusted with funds or property shall execute surety bonds.

(b) The West Virginia Workforce Resiliency Officer will set appropriate salary rates for employees equivalent to a competitive wage rate necessary to support a specific mission.

§29-36-1. Findings.

Findings—the Legislature finds that:

Over 15 percent of West Virginia’s population is of Irish descent, which, according to the Irish diplomat Barbara Jones, represents a higher figure than that in Boston or New York City;

The ties that bind Ireland to West Virginia are deep and lasting, reflected on West Virginia’s map from Ireland to Irish Mountain, from Tyrone to Tralee; and

Irish heritage has been the fortunate lot of many great West Virginians, such as philanthropist Bernard P. McDonough, the inventor Michael Owens, and US Senator John Kenna;

Ireland and West Virginia are attempting to reinvent their economies for success in the twenty-first century; and

West Virginians have both historic and practical reasons to desire the building of firmer commercial links with Ireland.

§29-36-2. Establishment of commission; Composition; Appointments; Vacancies.

For these and other reasons, there is hereby established the West Virginia-Ireland Trade Commission. The commission shall consist of 9 members, to be appointed as follows:

(a) Two members of the Senate, who shall be appointed by the President of the Senate, shall have knowledge of or current or past involvement in organizations that promote Irish affairs, or shall have interest in the well-being of trade relations between West Virginia and Ireland; and two members of the House of Delegates, who shall be appointed by the Speaker of the House of Delegates, shall have knowledge of or current or past involvement in organizations that promote Irish affairs, or shall have interest in the well-being of trade relations between West Virginia and Ireland. The legislative members of the commission shall serve during the two-year legislative term in which the appointments are made.

(b) Five members of the commission shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve for a term of four years. The members thus appointed shall include at least one representative from: a public institution of higher education; the West Virginia Chamber of Commerce, or its successor organization; and at least two public members shall represent Irish American communities or interest, neither of whom shall be members of the same political party.

(c) All appointments shall be made no later than July 1, 2023. A vacancy in the membership of the commission shall be filled in the same manner as the original appointment was made.

§29-36-3. Compensation; Meetings; Chair; Records; Quorum.

(a) Members of the commission shall receive the same compensation authorized by law for members of the Legislature for the interim duties for each day, or portion thereof, the member is engaged in the discharge of official duties. All members shall be reimbursed for their actual and necessary expenses incurred in the discharge of official duties, except that mileage shall be reimbursed at the same rate as that authorized for members of the Legislature.

(b) (1) The commission shall meet and hold hearings at the places it designates throughout the State.

(2) The commission shall elect a chair from amongst its members. The chair may appoint from among the commission members subcommittees and subcommittee chairs at their discretion.

(c) The commission shall keep records of all proceedings which shall be public and open to inspection, shall adopt a seal, and shall exercise and perform the duties prescribed by this section.

(d) A majority of the members of the commission shall constitute a quorum for the transaction of the business of the commission.

§29-36-4. Purpose of Commission.

The purpose of the West Virginia-Ireland Trade Commission shall be to:

(1) Advance bilateral trade and investment between West Virginia and Ireland;

(2) Initiate joint action on policy issues of mutual interest to West Virginia and Ireland;

(3) Promote business and academic exchanges between West Virginia and Ireland;

(4) Encourage mutual economic support between West Virginia and Ireland;

(5) Encourage mutual investment in the infrastructure of West Virginia and Ireland; and

(6) Address such other issues as determined by the Commission.

§29-36-5. Reports

The commission shall report its findings, results, and recommendations to the Governor, and the Legislature, within one year of its initial organizational meeting and by February 1st of each succeeding year for the activities of the preceding calendar year. The report shall be in writing and include recommendations as deemed appropriate by the commission to effectuate its purpose, as provided by this section.

§29-36-6. Funds.

The West Virginia-Ireland Trade Commission shall be authorized to raise funds, through direct solicitation or other fundraising events, alone, or with other groups, and accept gifts, grants, and bequests from individuals, corporations, foundations, governmental agencies, and public and private organizations and institutions, to defray the commission’s administrative expenses and to carry out its purposes.

§29-36-7. Effective Date.

This act shall take effect March 17, 2023.

§29-17-2.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-17-3.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-17-4.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-17-5.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-17-6.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-17-7.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.

§29-1C-2.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1C-3.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1C-4.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1C-5.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1D-2.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1D-3.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1D-4.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1D-5.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1D-6.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§29-1G-2.

Repealed.

Acts, 1979 Reg. Sess., Ch. 3.

§29-1G-3.

Repealed.

Acts, 1979 Reg. Sess., Ch. 3.

§29-1G-4.

Repealed.

Acts, 1979 Reg. Sess., Ch. 3.

§29-1G-5.

Repealed.

Acts, 1979 Reg. Sess., Ch. 3.

§29-4A-2.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-4A-3.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-4A-4.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-4A-5.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-4A-6.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-4A-7.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-4A-8.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.

§29-31-10. West Virginia Flood Resiliency Trust Fund.

(a) There is hereby created a special trust fund which shall be designated and known as the West Virginia Flood Resiliency Trust Fund to be administered by the State Resiliency Officer. The Flood Fund shall consist of: (1) Any appropriations, grants, gifts, contributions, or revenues received by the Flood Fund from any source, public or private; and (2) all income earned on moneys, properties, and assets held in the Flood Fund. When any funds are received by the State Resiliency Officer from any source for flood resiliency activities, they shall be paid into the Flood Fund, and shall be disbursed and otherwise managed in the manner set forth in this article. The Flood Fund shall be treated by the Auditor and Treasurer as a special revenue fund and not as part of the general revenues of the state.

(b) All moneys, properties, and assets acquired by the State of West Virginia in the Flood Fund shall be held by it in trust for the purposes of carrying out its powers and duties and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys, properties, and assets shall at no time be commingled with other public funds except as authorized for investment under §29-31-12 of this code. Disbursements from the Flood Fund shall be made only upon the written requisition of the State Resiliency Officer as set forth in §29-31-11 and §29-31-12 of this code. If no need exists for immediate use or disbursement, moneys, properties, and assets in the Flood Fund shall be invested or reinvested by the State Resiliency Officer as provided in this article.

§29-31-11. West Virginia Flood Resiliency Trust Fund disbursement.

Upon the development of a new state Flood Resiliency Plan, the State Resiliency Officer shall have the power to disburse funds from the Flood Fund for the purposes of implementing the Flood Resiliency Plan to any person, political subdivision, or local organization in such amounts and in such manner, and to take such other actions, as the State Resiliency Officer may determine is necessary or appropriate and is outlined within the Flood Resiliency Plan. All assistance to any person, political subdivision, or local organization shall be for the purposes of building flood resiliency in the face of current and projected future flood disaster events: Provided, That except as provided hereafter in this section, requisitions for payment shall not be made or authorized for payment by the Auditor without the express approval of the State Resiliency Officer: Provided, however, That all disbursements shall require the express approval of the State Resiliency Officer, which approval shall be contingent on the proposed activity appearing as a valid proposed flood resiliency activity and prioritized for implementation within the most recent Flood Resiliency Plan as reviewed and approved by the State Resiliency Office Board.

Following the development and approval of a new state Flood Resiliency Plan, the State Resiliency Officer is granted the power to disburse funds from the Flood Resiliency Trust Fund. In accordance with these powers, the following provisions and conditions shall be adhered to:

(1) Disbursements from the Flood Fund shall be used solely for the purposes of enhancing flood prevention or protection as required by this article. The State Resiliency Office shall manage the Flood Fund and may disburse from the Flood Fund its reasonable costs and expenses incurred in the management of the Flood Fund; 

(2) Disbursements shall be prioritized to the benefit of low-income geographic areas, and not less than 50 percent of all funds disbursed through the Flood Resiliency Trust Fund shall be disbursed to the benefit of low-income geographic areas and low-income households;

(3) Disbursements shall be prioritized toward the implementation of nature-based solutions, and not less than 50 percent of all funds disbursed through the Flood Resiliency Trust Fund shall be disbursed to implement nature-based solutions. Of disbursements made to implement nature-based solutions, not less than 25 percent of these disbursements shall be utilized for the acquisition of single-family primary residences and multifamily residences in areas currently or projected to be subjected to significant flood impacts, assistance to residents relocating outside of the floodplain, and floodplain restoration activities on properties acquired through the Flood Fund;

(4) Disbursements to the benefit of a political subdivision may only be allowed upon the verification to the State Resiliency Officer that the recipient political subdivision has adopted, or will adopt within 24 months, the following programs or measures:

(A) Town road and bridge standards consistent with or exceeding those listed under the most current version of standards published by the West Virginia Department of Transportation;

(B) A flood hazard bylaw, or an adopted interim flood hazard bylaw as an intermediary step to secure enrollment and participation in the National Flood Insurance Program (NFIP), if applicable;

(C) A local Hazard Mitigation Plan that meets the provisions of 44 CFR § 201.6 that has been approved by the local community, and is approved or in the process of securing final approval by FEMA. The local mitigation plan may be part of a larger multijurisdictional or regional mitigation plan;

(D) Adoption of a local Emergency Operations Plan (EOP) in accordance with state standards; and,

(E) Attainment of an active rate classification (class #1 through #9) under FEMA’s Community Rating System (CRS) that includes activities that prohibit new structures in mapped flood hazard zones; and

(5) Prioritization and conditions for disbursements at the discretion of the State Resiliency Officer and upon approval of the State Resiliency Office Board.

§29-31-12. Powers and duties related to the West Virginia Flood Resiliency Trust Fund.

The State Resiliency Officer is hereby granted, has, and may exercise all powers necessary or appropriate to carry out and effectuate the purposes set forth in §29-31-11 of this code. The State Resiliency Officer has the power:

(1) To accept appropriations, gifts, grants, bequests, and devises from any source, public or private, for deposit into the Flood Fund, and to use or dispose of the same to provide assistance to any person, political subdivision, or local organization for flood resiliency, flood prevention, and flood protection activities;

(2) To make and execute contracts, leases, releases, and other instruments necessary or convenient for the exercise of its power;

(3) To make, and from time to time, amend, and repeal bylaws for the governance of its activities not inconsistent with the provisions of this article;

(4) To sue and be sued;

(5) To acquire, hold, and dispose of real and personal property;

(6) To enter into agreements or other transactions with any federal or state agency, political subdivision, or person;

(7) To provide for the deposit of any funds or assets of the West Virginia Flood Resiliency Trust Fund with the state Treasurer for investment pursuant to §12-6C-6 of this code;

(8) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable;

(9) To procure services related to the development and updating of the state Flood Resiliency Plan;

(10) To provide loans or grants to political subdivisions and individual beneficiaries for the purpose of implementing activities proposed and outlined within the Flood Resiliency Plan;

(11) To provide loans or grants to governmental entities and organizations exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code for the purpose of implementing activities proposed and outlined within the Flood Resiliency Plan;

(12) To provide loans or grants to political subdivisions for the purpose of conducting flood prevention and protection studies in areas that are subject to recurrent flooding as confirmed by a locality-certified floodplain manager; and

(13) Do all acts necessary and proper to carry out the powers granted to the State Resiliency Office for flood resiliency activities.

§29-31-13. Capitalization of the West Virginia Flood Resiliency Trust Fund.

(a) The West Virginia Flood Resiliency Trust Fund may be granted an initial one-time allocation of $40 million in state general funds for the purposes outlined in this article.

(b) The State Resiliency Officer shall, with the concurrence of the State Auditor, present an expenditure report to the State Resiliency Office Board by no later than December 1 annually.

(c) Upon review and verification by the State Resiliency Office Board that all expenditures within the West Virginia Flood Resiliency Trust Fund expenditure report are valid and justified uses of Flood Fund resources, the State Resiliency Office Board shall submit to the Governor by no later than December 31 annually a budget and may request to replenish the Flood Fund up to its initial $40 million capitalization.

(d) Upon state receipt of Community Development Block Grant-Disaster Recovery funds in relation to a flood disaster event, and in order to provide the state with the flexibility required to provide assistance to any person, political subdivision, or local organization recovering from the flood disaster event, a minimum of six percent of those funds shall be dedicated for the purposes of Flood Resiliency Plan development and implementation activities to the extent that those purposes are in compliance with applicable federal laws and regulations governing such funds and compatible with the state’s long-term recovery goals.

§29-31-14. Tax exemption.

The State Resiliency Officer shall not be required to pay any taxes and assessments to the state or any political subdivision of the state upon any of its moneys, properties, or assets or upon its obligations or other evidences of indebtedness pursuant to the provisions of this article, or upon any moneys, funds, revenues, or other income held or received into the West Virginia Disaster Recovery Trust Fund or the West Virginia Flood Resiliency Trust Fund.

§29-31-2a. Definitions.

As used in this article:

"Board" means the West Virginia State Resiliency Office Board created by this article;

"Code" means the Code of West Virginia, 1931, as amended;

"Community facilities" means a specific work, or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public;

"Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural, or terrorist, or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action;

"Disaster recovery activities" means activities undertaken following a disaster to provide, or to participate in, the provision of long-term rehabilitation of infrastructure, housing, community facilities, and economic activity impacted by a disaster event;

"Flood Fund" means the West Virginia Flood Resiliency Trust Fund created by this article;

"Flood prevention or protection study" means the conduct of a hydraulic or hydrologic study of a flood plain with historic and predicted future floods, the assessment of current and projected future flood risk, and the development of strategies to prevent or mitigate damage from flash or riverine flooding;

"Flood resiliency" means efforts and activities intended to minimize damages during times of flooding resulting in reduced risk to people and infrastructure, and ensuring there is ample room for flooding and river adjustment to occur where the opportunity may exist;

"Low-income geographic area" means any locality, or community within a locality, that has a median household income that is not greater than 80 percent of the local median household income, or any area in the state designated as a qualified opportunity zone by the U.S. Secretary of the Treasury via his delegation of authority to the Internal Revenue Service;

"Low-income household" means any household whose income does not exceed 80 percent of the local median household income;

"Nature-based solution" means sustainable planning, design, environmental management, and engineering practices that weave natural features or processes into the built environment to promote flood resiliency and preserve or enhance natural hydrologic function;

"Person" means any individual, corporation, voluntary organization or entity, partnership, firm, or other association, organization, or entity organized or existing under the laws of this or any other state or country;

"Political subdivision" means any county or municipal corporation in this state;

"Recovery Trust Fund" means the West Virginia Disaster Recovery Trust Fund created by this article; and,

"Stafford Act" means the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. Chapter 68).

§29-31-6. West Virginia Disaster Recovery Trust Fund.

(a) There is hereby created a special trust fund which shall be designated and known as the West Virginia Disaster Recovery Trust Fund to be administered by the State Resiliency Officer. The recovery fund shall consist of: (1) Any appropriations, grants, gifts, contributions, or revenues received by the recovery fund from any source, public or private; and (2) all income earned on moneys, properties, and assets held in the Recovery Fund. When any funds are received by the State Resiliency Officer from any source for the purpose of disaster recovery, they shall be paid into the Recovery Fund, and shall be disbursed and otherwise managed in the manner set forth in this article unless such a transfer is not allowable by law. The Recovery Fund shall be treated by the Auditor and Treasurer as a special revenue fund and not as part of the general revenues of the state.

(b) All moneys, properties, and assets acquired by the State of West Virginia in the Disaster Recovery Trust Fund shall be held by it in trust for the purposes of carrying out its powers and duties and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys, properties, and assets shall at no time be commingled with other public funds except as authorized for investment under §29-31-8 of this code. Disbursements from the Recovery Fund shall be made only upon the written requisition of the State Resiliency Officer as set forth in §29-31-7 and §29-31-8 of this code. If no need exists for immediate use or disbursement, moneys, properties, and assets in the Recovery Fund shall be invested or reinvested by the State Resiliency Officer as provided in this article.

§29-31-7. West Virginia Disaster Recovery Trust Fund disbursement.

Upon the proclamation of the existence of a state of emergency due to a natural hazards event under the provisions of §15-5-6 of this code or upon a Presidential declaration of a major disaster under Section 406 of the Stafford Act, the State Resiliency Officer shall have the power to disburse funds from the Disaster Recovery Trust Fund created pursuant to §29-31-6 of this code to any person, political subdivision, or local organization for emergency services in such amounts and in such manner, and to take such other actions, as the State Resiliency Officer may determine is necessary or appropriate in order to provide assistance to any person, political subdivision, or local organization for recovering from the disaster, or otherwise involved in disaster recovery activities: Provided, That except as provided hereafter in this section, requisitions for payment shall not be made or authorized for payment by the Auditor without the express approval of the State Resiliency Officer: Provided, however, That all disbursements arising out of the events surrounding the aftermath of a disaster event giving rise to the relevant disbursements shall require the express approval of the State Resiliency Officer, which approval shall not be unduly withheld or delayed.

In the occurrence of a qualifying event granting the State Resiliency Officer the power to disburse funds from the Disaster Recovery Trust Fund, the following provisions and conditions shall be adhered to:

(1) Disbursements shall be prioritized to the benefit of low-income households and geographic areas, and not less than 50 percent of all funds disbursed through the Disaster Recovery Trust Fund following any particular disaster event shall be disbursed to the benefit of low-income geographic areas, low-income households, or to local organizations conducting disaster recovery activities to the benefit of low-income geographic areas or low-income households;

(2) Disbursements to the benefit of a political subdivision may only be allowed upon the verification to the State Resiliency Officer that the recipient political subdivision has adopted, or will adopt within 24 months, the following programs or measures or risk forfeiture of future funding opportunities:

(A) Town road and bridge standards consistent with or exceeding those listed under the most current version of standards published by the West Virginia Department of Transportation;

(B) A flood hazard bylaw, or an adopted interim flood hazard bylaw as an intermediary step to secure enrollment and participation in the National Flood Insurance Program (NFIP), if applicable;

(C) A local Hazard Mitigation Plan that meets the provisions of 44 CFR § 201.6 that has been approved by the local community and is approved or in the process of securing final approval by FEMA. The local mitigation plan may be part of a larger multijurisdictional or regional mitigation plan;

(D) Adoption of a local Emergency Operations Plan (EOP) in accordance with State standards; and

(E) Attainment of an active rate classification (class #1 through #9) under FEMA’s Community Rating System (CRS) that includes activities that prohibit new structures in mapped flood hazard zones; and

(3) Disbursements may be further prioritized or conditioned at the discretion of the State Resiliency Officer and upon approval of the State Resiliency Office Board.

§29-31-8. Powers and duties related to the West Virginia Disaster Recovery Trust Fund.

The State Resiliency Officer is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purposes set forth in §29-31-7 of this code. The State Resiliency Officer has the power:

(1) To accept appropriations, gifts, grants, bequests, and devises from any source, public or private, for deposit into the Recovery Fund, and to use or dispose of the same to provide assistance to any person, political subdivision, or local organization for recovering from a disaster, or otherwise involved in disaster recovery activities;

(2) To make and execute contracts, leases, releases, and other instruments necessary or convenient for the exercise of its power;

(3) To make, and from time to time, amend, and repeal bylaws for the governance of its activities not inconsistent with the provisions of this article;

(4) To sue and be sued;

(5) To acquire, hold, and dispose of real and personal property;

(6) To enter into agreements or other transactions with any federal or state agency, political subdivision, or person;

(7) To provide for the deposit of any funds or assets of the West Virginia Disaster Recovery Trust Fund with the state Treasurer for investment pursuant to §12-6C-6 of this code;

(8) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable;

(9) To provide financial assistance to state and local governmental entities for the nonfederal share for federal disaster assistance programs;

(10) To provide for financial assistance to homeowners and communities that are not eligible for Community Development Block Grant-Disaster Recovery and other federal funding assistance;

(11) To provide loans and grants to local governments in disaster areas that need immediate cash flow assistance;

(12) To provide grants to governmental entities and organizations exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code to repair or replace infrastructure or equipment damaged as a result of a natural disaster;

(13) To provide financial assistance for verifiable losses of agricultural commodities due to a natural disaster; and

(14) Do all acts necessary and proper to carry out the powers granted to the State Resiliency Office within its disaster recovery mission.

§29-31-9. Capitalization of the West Virginia Disaster Recovery Trust Fund.

(a) The West Virginia Disaster Recovery Trust Fund may be granted an initial one-time allocation of $10 million in state general funds for the purposes outlined in this article.

(b) The State Resiliency Officer shall, with the concurrence of the State Auditor, present an expenditure report to the State Resiliency Office Board by no later than December 1 annually.

(c) Upon review and verification by the State Resiliency Office Board that all expenditures within the West Virginia Disaster Recovery Trust Fund expenditure report are valid and justified uses of Recovery Fund resources, the State Resiliency Office Board shall submit to the Governor by no later than December 31 annually a budget and may request to replenish the Recovery Fund up to its initial $10 million capitalization.

§29-1-15. Development or improvement on land; State Historic Preservation Office; rules and regulations.

All development or improvement on land, including any disturbance in a right-of-way, construction project, or infrastructure project, subject to review by the State Historic Preservation Office or by any other agency, office, or component of the Division of Culture and History for prehistorical, historical, archaeological, architectural, or cultural value shall be conducted in the most expedient manner possible. The division shall not add any additional impediment to such review beyond those required by applicable Federal laws, rules, and regulations and shall have no authority to comment, regulate, or otherwise cause another governmental entity to comment upon or regulate, that activity, except in consideration for primacy or continued federal funding.

The commissioner shall have the power to make and promulgate rules and regulations in in conformity with this section, and the commissioner shall modify, upon the effective date of this legislation, any active rule in conflict with the provisions of this section.

§29-12-15. Moratorium on providing new or additional insurance coverage for any permissive entity, property, activity, etc.

 There is a moratorium on the board’s authority under this article to provide new or additional property or liability insurance coverage for certain entities as of the effective date of the enactment of this section during the regular session of the Legislature, 2024. This moratorium prohibits new or additional insurance coverage by the board of those entities to which coverage is permissive, not mandatory, under this article, including, but not limited to, a political subdivision, charitable or public service organization, or an emergency medical services agency, each as defined in §29-12-5(b)(1) of this code. For the purposes of this section, “coverage” includes property or liability insurance to insure the property, activities, and responsibilities of an entity. This moratorium shall remain in effect until July 1, 2025: Provided, That this moratorium shall have no effect upon any contracts or agreements which are currently in effect, or the status of any insurance coverage in place on the effective date of this section, nor does it prohibit the board from extending any contracts or agreements which are currently in effect, or any insurance coverage in place on the effective date of this section: Provided, however, That this moratorium shall not apply to county boards of education, teachers, supervisory and administrative staff members, service personnel, county superintendents of schools, school board members, public charter schools, and any other entity or person required to be insured by the board pursuant to §29-12-5a of this code.

§29-12-16. Non-renewal of policies for permissive non-governmental entities.

Notwithstanding any provision of law to the contrary, and notwithstanding the decision of the West Virginia Supreme Court of Appeals in State ex rel. Human Res. Dev. & Empl. v. Bd. of Risk & Ins. Mgmt. of W. Va., 214 W. Va. 460 (2003), the board may, upon 60 days’ advance notice to the insured, non-renew any policy of liability insurance or other insurance by the board to a non-governmental entity for which coverage is permissive, and not mandatory, pursuant to §29-12-5(b)(1) of this code.