West Virginia-2012-HB2712-Introduced

H. B. 2712

(By Delegates Swartzmiller, Butcher, Skaff,

Staggers, Ferro, Hall, R. Phillips, Storch,

Ferns, Stowers and Jones)

[Introduced January 11, 2012; referred to the

Committee on the Judiciary.]

A BILL to repeal §29-5A-1, §29-5A-2, §29-5A-3, §29-5A-4, §29-5A-5, §29-5A-6, §29-5A-7, §29-5A-8, §29-5A-9, §29-5A-10, §29-5A-11, §29-5A-12, §29-5A-13, §29-5A-14, §29-5A-15, §29-5A-16, §29-5A-17, §29-5A-18, §29-5A-19, §29-5A-20, §29-5A-21, §29-5A-22, §29-5A-23, §29-5A-24, §29-5A-25, §29-5A-25A and §29-5A-26 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §29-5-1, §29-5-2, §29-5-3, §29-5-4, §29-5-5, §29-5-6, §29-5-7, §29-5-8, §29-5-9, §29-5-10, §29-5-11, §29-5-12, §29-5-13, §29-5-14, §29-5-15, §29-5-16, §29-5-17 and §29-5-18, all relating to the State Athletic Commission.

Be it enacted by the Legislature of West Virginia:

That §29-5A-1, §29-5A-2, §29-5A-3, §29-5A-4, §29-5A-5, §29-5A-6, §29-5A-7, §29-5A-8, §29-5A-9, §29-5A-10, §29-5A-11, §29-5A-12, §29-5A-13, §29-5A-14, §29-5A-15, §29-5A-16, §29-5A-17, §29-5A-18, §29-5A-19, §29-5A-20, §29-5A-21, §29-5A-22, §29-5A-23, §29-5A-24, §29-5A-25, §29-5A-25A and §29-5A-26 of the Code of West Virginia, 1931, as amended, be repealed; and that said code be amended by adding thereto a new article, designated §29-5-1, §29-5-2, §29-5-3, §29-5-4, §29-5-5, §29-5-6, §29-5-7, §29-5-8, §29-5-9, §29-5-10, §29-5-11, §29-5-12, §29-5-13, §29-5-14, §29-5-15, §29-5-16, §29-5-17 and §29-5-18, all to read as follows:

ARTICLE 5. STATE ATHLETIC COMMISSION.

§29-5-1. Commission to have sole control of boxing, semi-

professional boxing and mixed marital arts.

(a) A person may not promote a contest unless the person is licensed under this article and secures a permit to conduct the contest.

(b) A person may not participate in a contest as an official or contestant, unless the person is licensed under this article.

§29-5-2. Definitions.

As used in this article:

(a) "Amateur" means a contestant who does not compete for a prize, in cash or otherwise.

(b) “Boxing” means a contest between contestants who fight with their fists protected by gloves or mittens fashioned of leather or similar material, the duration of which is limited to a stated number of rounds separated by rest periods of equal duration. “Boxing” includes kickboxing.

(c) “Business entity” means any firm, partnership, association, club, company, corporation, limited partnership, limited liability company or other entity.

(d) "Contest" means any public or private competition or exhibition that involves boxing, mixed martial arts or tough man.

(e) "Contestant" means a person participating in a contest or exhibition including a manager, trainer, or second of a contestant.

(f) ”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.

(g) “Official” means referee, judge, matchmaker, timekeeper licensed under this article.

(h) "Professional” means an individual licensed by the commission who competes for or has competed for a money prize, purse or compensation in a contest.

(I) “Promote” means to conduct or hold a contest.

(j) "Semi-Professional" means a tournament that involves physical contact between two individuals who attempt to out point the opponent by using boxing techniques and tactics. The winner of the tournament receiving a monetary prize or compensation.

§29-5-3. State Athletic Commission.

(a) The West Virginia Athletic Commission is terminated July 1, 2011, and shall be reconstituted on July 1, 2011. The commission shall consist of the five members appointed by the Governor, by and with the advice and consent of the Senate:

(1) One member who has five years experience in professional boxing;

(2) One member who has five years of experience in professional mixed martial arts;

(3) One member who is a licensed allopathic or osteopathic physician; and

(4) Two 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.

(b) Each member of the commission must be a resident of this state during the appointment term.

(c) A person may not be appointed to the commission or be an employee of the commission who is regulated by the commission. A member may not have any legal or beneficial interest, direct or indirect, pecuniary or otherwise, in any person who is regulated by the commission or who participates in a contest.

(d) A member may not participate in any contest other than in the member's official capacity as a member of the commission.

(e) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.

(f) A vacancy on the commission shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.

(g) The Governor may remove any member from the commission for neglect of duty, incompetency or official misconduct.

(h) A member of the commission immediately and automatically forfeits membership to the commission if he or she is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.

(I) The commission shall elect annually one of its members as chairperson who serves at the will of the commission.

(j) Each member of the commission is entitled to compensation and expense reimbursement in accordance with article one, chapter thirty.

(k) A majority of the members of the commission constitutes a quorum.

(l) The commission shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.

(m) Prior to commencing his or her duties as a member of the commission, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§29-5-4. Powers and duties of the commission.

(a) The commission has all the powers and duties set forth in this article, by rule, and elsewhere in law.

(b) The commission shall:

(1) Have control over professional boxing and mixed martial arts contests and amateur mixed martial arts contest;

(2) Have control over semi-professional boxing;

(3) Hold meetings and conduct hearings;

(4) Establish requirements for licenses;

(5) Establish procedures for submitting, approving and rejecting applications for licenses and permits;

(6) Determine the qualifications of any applicant for licenses and permits;

(7) Hire, discharge, establish the job requirements and fix the compensation of the executive director;

(8) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;

(9) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the commission;

(10) Establish the criteria for the training of investigators;

(11) Set the requirements for investigations;

(12) Conduct disciplinary hearings of persons regulated by the commission;

(13) Determine disciplinary action and issue orders;

(14) Institute appropriate legal action for the enforcement of the provisions of this article;

(15) Maintain an accurate registry of names and addresses of all licensees;

(16) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(17) Issue, renew, combine, deny, suspend, revoke or reinstate licenses and permits;

(18) Establish a fee schedule;

(19) Have access to the financial records of licensees and permittees;

(20) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(21) Take all other actions necessary and proper to effectuate the purposes of this article.

(1) Sue and be sued in its official name as an agency of this state; and

(2) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§29-5-5. Rulemaking.

(a) The commission 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, including:

(1) Standards and requirements for licenses and permits;

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

(3) Adopting the unified rules of boxing;

(4) Adopting rules governing semi-professional boxing contests;

(5) Procedures for the issuance and renewal of licenses and permits;

(6) A fee schedule;

(7) Increase the surety bond or required insurance above the statutory minimum;

(8) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees and permitees;

(9) Requirements for investigations;

(10) Requirements for the reinstatement of revoked licenses or permits; and

(11) Any other rules necessary to effectuate the provisions of this article.

(b) All of the commission’s rules in effect on July 1, 2011, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

§29-5-6. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the commission shall be deposited in a separate special revenue fund in the State Treasury designated the “West Virginia State Athletic Commission”, which is continued. The fund is used by the commission for the administration of this article. Except as may be provided in article one of this chapter, the commission retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§29-5-7. Promoter’s license requirements.

(a) To be eligible for a license to promote a contest the applicant must:

(1) Apply to the commission on a form prescribed by the commission;

(2) Be of good moral character;

(3) Conduct his or her business in the best interest and welfare of the public and preserving the safety and health of participants;

(4) Pay the prescribed fee; and

(5) Adhere to and comply with the rules of the commission.

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

(c) The inspector and other officials designated by the commission to be in charge of a contest shall be paid by the promoter for each weigh-in ceremony and for each day of the contest.

(d) A promoter shall, after the determination of a contest, furnish to the commission a written report detailing the number of tickets sold, the amount of the gross proceeds and other matters as the commission may prescribe.

(e) A promoter shall execute and file with the commission a surety bond in an amount not less than $100,000.

(f) A license issued pursuant to this section shall bear the name of the licensee, the address of the licensee, the date of expiration, and an identification number designated by the commission.

(g) A promoter's license shall expire twelve months after its date of issuance and shall become invalid on that date unless renewed. A promoter's license may be renewed upon application to the commission and upon payment of the renewal fee.

(h) A licensee shall insure each contestant in a contest for hospital, nursing, and medication expenses and for physicians' and surgeons' services. The amount of the insurance may not be less than $20,000 and shall be paid to or for the use of a contestant for any injuries sustained in a contest.

(I) A licensee shall provide life insurance to each contestant. The amount of life insurance may not be less than $20,000 and it shall be paid to the contestant's estate if the contestant dies as the result of participation in the contest.

§29-5-8. Contestant license requirements.

(a) To be eligible for a license to be a contestant in a boxing or mixed martial arts contest, the applicant must:

(1) Apply to the commission on a form prescribed by the commission;

(2) Is physically fit and mentally sound;

(3) Pay the prescribed fee;

(4) Provide two recent photos, passport size;

(5) Will adhere to and comply with the rules of the commission;

(6) Has passed a physical by a licensed physician the day of the scheduled contest;

(7) An applicant for a license to be a contestant shall present documentary evidence, satisfactory to the commission, that:

(A) Within the one year, before a contest, the applicant has been tested for the presence of:

(I) Antibodies to the human immunodeficiency virus (HIV);

(ii)The antigen of virus hepatitis B;

(iii) Antibodies to virus hepatitis C;

(iv) A pregnancy test, if applicable;

(B) The results of all tests are negative;

(D) All contestants must sign a medical information release form to permit the commission to review the contestant’s medical information.

§29-5-9. Semi-professional contestant license requirements.

(a) To be eligible for a license to be a semi-professional contestant, the applicant must:

(1) Apply to the commission on a form prescribed by the commission;

(2) Is physically fit and mentally sound;

(3) Pay the prescribed fee;

(4) Will adhere to and comply with the rules of the commission; and

(5) Has passed a physical by a licensed physician the day of the scheduled contest.

§29-5-10. Officials license requirements.

(a) To be eligible for a license to be an official, the applicant must:

(1) Apply to the commission on a form prescribed by the commission;

(2) Be of good moral character;

(3) Be physically fit and mentally sound;

(4) Pay the prescribed fee;

(5) Adhere to and comply with the rules of the commission;

(6) Not likely to engage in acts detrimental to the fair and honest conduct of contests;

(7) Be qualified to hold a license by reason of the applicant's knowledge and experience; and

(8) Any other requirements the commission prescribes by legislative.

(b) The chief official of the contest is the chief deputy. The referee is the chief official of the bout. The referee shall have general supervision and control over the contest and shall be paid by the promoter.

(c) The officials shall be appointed by the commission, and shall receive from the commission a card authorizing them to act as such.

§29-5-11. Permit requirements.

(a) To be eligible for a permit to conduct a contest an applicant must:

(1) Be licensed under section seven of this article;

(2) Apply to the commission on a form prescribed by the commission. The form shall require the following information:

(A) The date and starting time of the contest;

(B) The address of the place where the contest is to be held;

(D) The seating capacity of the building where the contest is to be held;

(E) The admission charge or any other charges;

(F) Provide a copy of the contracts the promoter and the contestants have signed; and

(G) The name and address of the applicant; and

(3) Pay the applicable fee.

(b) The commission shall determine if the contestants are evenly and fairly matched according to skill, experience and weight so as to produce a fair and sportsmanlike contest.

(c) Each permit issued pursuant to this section shall bear the name and address of the applicant, the address of the place where the contest is to be held, and the date and starting time of the contest.

(d) The permit allows the permit holder to conduct only the contest named in the permit. A permit is not transferable.

§29-5-12. Amateur boxing.

Amateur boxing shall be governed by United States Boxing Association.

§29-5-13. Deputy chief and inspectors at contests.

(a) The commission shall employ a deputy chief and inspectors to attend each contest held under a permit.

(b) At least one deputy chief and at least two inspectors shall be assigned to a facility for a contest.

(c) The compensation of the deputy chief and the inspectors for attending a contest, shall be charged and paid by the permitee at whose facility the inspector serves.

(d) The inspectors shall report any violations of this article and legislative rules to the chief deputy.

§29-5-14. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The commission may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the commission.

(b) Upon initiation or receipt of the complaint, the commission shall provide a copy of the complaint to the licensee or permittee.

(c) After reviewing any information obtained through an investigation, the commission shall determine if probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the commission may enter into a consent decree or hold a hearing for the suspension or revocation of the license or permit or the imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance with the provisions of this article.

(e) Any member of the commission or the executive director of the commission may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the commission or its executive director may sign a consent decree or other legal document on behalf of the commission.

(g) The commission may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license or permit of, impose probationary conditions upon or take disciplinary action against, any licensee or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the commission;

(4) Intentional violation of a lawful order or legislative rule of the commission;

(5) Having had an authorization revoked, suspended, other disciplinary action taken, by the proper authorities of another jurisdiction;

(6) Having had an application denied by the proper authorities of another jurisdiction;

(7) Aiding or abetting unlicensed practice;

(8) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public;

(9) Is an habitual drunkard or addicted to the use of a controlled substance;

(10) Is or has become mentally incompetent;

(l1) Has failed to maintain in force the bond required by this chapter;

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

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

(14) Knowingly permit a person less than eighteen years of age to participate in a public boxing or wrestling contest;

(15) Knowingly permit gambling, betting, or wagering on the result of a contingency in connection with a contest; or

(16) Knowingly conduct or allow to be conducted a sham or fake contest.

(h) For the purposes of subsection (g) of this section disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Practicing under supervision or other restriction;

(5) Requiring the licensee to report to the commission for periodic interviews for a specified period of time; or

(6) Other corrective action considered by the commission to be necessary to protect the public.

§29-5-15. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.

(b) The commission may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the commission so directs. The commission may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the commission has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the commission determines the licensee or permittee has violated subsection (g) of this section or the commission’s rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§29-5-16. Judicial review.

Any licensee or permittee adversely affected by a decision of the commission entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§29-5-17. Injunctive relief for violation of chapter.

When there is a 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.

§29-5-18. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the commission has reason to believe that a licensee or permittee has committed a criminal offense under this article, the commission may bring its information to the attention of an appropriate law-enforcement official.

(b) A person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000 or confined in jail not more than six months, or both fined and confined.

NOTE: The purpose of this bill is to reorganize the State Athletic Commission and to require it to authorize mixed martial arts.

This article is new; therefore, it has been completely underscored.