Bill Text: WV HB4747 | 2020 | Regular Session | Introduced
Bill Title: Extending electronic submission of various applications and forms for nonprofit and charitable organizations, professionals and licensees
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2020-04-15 - Chapter 171, Acts, Regular Session, 2020 [HB4747 Detail]
Download: West_Virginia-2020-HB4747-Introduced.html
WEST virginia legislature
2020 regular session
Introduced
House Bill 4747
By Delegates Howell and C.
Martin
[By Request of the Secretary of State]
[Introduced February 07, 2020; Referred to the Committee on Government Organization]
A BILL to amend and reenact §29-19-2, §29-19-5, §29-19-6, and §29-19-9 of the Code of West Virginia, 1931, as amended; to amend and reenact §30-18-1, §30-18-3, §30-18-6, and §30-18-10 of said code; to amend and reenact §39-4A-2 of said code; and to amend and reenact §47-2-1 and §47-2-3, all relating generally to extending current laws allowing electronic submission of applications and forms to the Secretary of State’s Office relating to licensure or regulation charities, nonprofit organizations, private investigators and firms, security guards and firms, out-of-state commissioners, and trademarks; providing new definitions for the term “sign” and “signature” relating to applications or forms in the foregoing regulated industries; providing for more efficient application processes in the foregoing regulated industries; and technical typographical changes to distinguish the Secretary of State from an entity’s secretary or administrative assistant.
Be it enacted by the Legislature of West Virginia:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 19. SOLICITATION OF CHARITABLE FUNDS ACT.
§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.
§29-19-5. 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, file
a registration statement 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 sworn to 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. and shall be
verified under oath
(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.
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 $25,000 $50,000
during a calendar year.
Charitable organizations
which do not intend to solicit and receive contributions, donations or grants
in excess of $25,000 $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 $25,000 $50,000.
§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. Applications for the
The registration application shall be submitted in writing
under oath or affirmation in the form prescribed a manner or method
authorized by the Secretary of State and contain the information he or she
requires. The application for 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 written application submitted to the
Secretary of State in a manner or method authorized and under oath
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.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 18. PRIVATE INVESTIGATIVE AND SECURITY SERVICES.
§30-18-1. Definitions.
For the purposes of this article, except where the context clearly requires otherwise, the following terms shall have the meanings ascribed to them:
(1) “Applicant” means a person who files a completed application as required by sections three and six of this article to be licensed to conduct a private investigation business or a security guard business. When a person other than a natural person is applying for a license, the applicant shall be the person whose qualifications are presented to meet the experience or education requirements of sections two or five of this article.
(2) “Private investigation business” means the business of doing an investigation or investigations, for hire, reward or any other type of remuneration, to obtain information about:
(A) A crime which is alleged to have occurred or is threatened to occur;
(B) The habits, activities, conduct, movements, location, associations, transactions, reputation or character of any person;
(C) The credibility of witnesses or other persons;
(D) The location or recovery of lost or stolen property;
(E) The causes or origins of any fire, accident or injury to any property, real or personal, or to identify or locate any person or persons responsible for any such fire, accident or injury;
(F) The truth or falsity of any statement or representation, whether written or oral, or of any type of depiction;
(G) Any matters which constitute evidence or which may lead to the discovery of evidence to be used before any judicial or quasijudicial tribunal, including, but not limited to, civil or criminal courts, administrative agencies, investigating committees, or boards of award or arbitration;
(H) The whereabouts of any missing or kidnapped person;
(I) The affiliation, connection or relationship of any person with any corporation or other business entity, union, organization, society or association, or with any official, member or representative thereof;
(J) Any person or persons seeking employment in the place of any employee or employees who have quit work by reason of any strike; or
(K) The conduct, honesty, efficiency, loyalty or activities of employees, agents, contractors and subcontractors.
(3) “Firm license” means the license held by a person whom the Secretary of State has authorized to operate a private detective investigative firm or security guard firm after such person has filed and completed an application pursuant to the application requirements contained in sections three or six of this article and has satisfied the eligibility requirements contained in sections two or five of this article.
(4) “Person” means a natural person, a group of persons or individuals acting individually or as a group, a corporation, company, partnership, association, society, firm, or any business organization or entity organized or existing under the laws of this or any other state or country;
(5) (A) “Private detective” or “private investigator” means a person who is licensed pursuant to the provisions of this article to conduct a private investigation business, as defined in subdivision (2) of this section, and who conducts such business individually and independently from any private detective or investigative firm;
(B) “Private detective” or “private investigator” does not include:
(i) Any individual while acting as an adjuster for an insurance company or companies;
(ii) Individuals employed exclusively and regularly by only one employer in connection with the affairs of such employer only;
(iii) An officer or employee of the United States, or any law-enforcement officer of this state or any political subdivision thereof, while such officer or employee is engaged in the performance of his or her official duties or while working for a private employer in his or her off-duty hours;
(iv) Attorneys or counselors-at-law or any employee or representative of such attorney or counselor;
(v) Any corporation duly authorized by this state to operate central burglar or fire alarm protection business; or
(vii)(vi) Any
investigator of crime appointed by a prosecuting attorney of a county pursuant
to the provisions §7-4-2 of this code.
(6) “Private detective or investigative firm” means any private detective agency or business or any investigative agency or business that is operated by a licensed private detective or investigator and which employs one or more other persons who actually conduct the private investigation business as defined in subdivision (2) of this section.
(7) (A) “Security guard” means a person who is licensed pursuant to the provisions of this article to conduct a security guard business, as defined in subdivision (8) of this section, and who conducts such business individually and independently from a security guard firm.
(B) “Security guard” does not include a person who is employed exclusively and regularly by only one employer in connection with the affairs of such employer only, or a person who is otherwise hereinafter excluded from the requirements of this article;
(8) (A) “Security guard business” means the business of furnishing, for hire, reward or other remuneration, watchmen, guards, bodyguards, private patrolmen or other persons, to:
(i) Protect property, real or personal, or any person;
(ii) To prevent theft, unlawful taking, misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, notes or other valuable documents, papers and articles of value; or
(iii) To furnish for hire, guard dogs or armored motor vehicle security services, in connection with the protection of persons or property;
(B) “Security guard business” does not include any activities or duties for which it is necessary to be trained and certified as a law-enforcement officer in accordance with the provisions of §30-29-1 et seq. of this code.
(9) “Security guard firm” means any security guard agency or business that is operated by a licensed security guard and which employs one or more other persons who actually conduct a security guard business as defined in subdivision (8) of this section.
(10) “Sign” means the action of affixing a person’s signature to any document or record, whether by manual, written or approved electronic means.
(11) “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.
§30-18-3. Application requirements for a license to conduct the private investigation business.
(a) To be licensed to be a
private detective, a private investigator or to operate a private detective or
investigative firm, each applicant shall complete and file a written
an application under oath with the Secretary of State in a
manner or method authorized and in such form as the secretary may
prescribe.
(b) On the application each applicant shall provide the following information: The applicant’s name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state and any other information requested by the Secretary of State in order to comply with the requirements of this article.
(c) In the case of a
corporation that is seeking a firm license, the application shall be signed by
the president and verified by the secretary or treasurer of such
corporation and shall specify the name of the corporation, the date and place
of its incorporation, the names and titles of all officers, the location of its
principal place of business, and the name of the city, town or village, stating
the street and number, and otherwise such apt description as will reasonably
indicate the location. If the corporation has been incorporated in a state
other than West Virginia, a certificate of good standing from the state of
incorporation must accompany the application. This information must be provided
in addition to that required to be provided by the applicant.
(d) The applicant shall provide:
(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;
(2) Information about offenses against the laws of West Virginia or any state; and
(3) Any facts as may be required by the Secretary of State to show the good character, competency and integrity of the applicant.
To qualify for a firm license, the applicant shall provide such information for each person who will be authorized to conduct the private investigation business and for each officer, member or partner of the firm.
(e) As part of the application, each applicant shall give the Secretary of State permission to review the records held by the division of public safety for any convictions that may be on record for the applicant.
(f) For each applicant for
a license and for each officer, member and partner of the firm applying
for a license, the application shall be accompanied by one recent full-face
photograph. and one complete set of the person's fingerprints
(g) For each applicant, the application shall be accompanied by:
(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct the private investigation business; and
(2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State to offset the cost of license review and criminal investigation background report from the department of public safety, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm, or $500 if the applicant is a nonresident of West Virginia or a foreign corporation or business entity. The license fee shall be deposited to the General Revenue Fund, and shall be refunded only if the license is denied.
(h) All applicants for
private detective or private investigator licenses or for private investigation
firm licenses shall file in the office of Secretary of State a surety bond.
Such bond shall:
(1) Be in the sum of
$2,500 and conditioned upon the faithful and honest conduct of such business by
such applicant;
(2) Be written by a
company recognized and approved by the Insurance Commissioner of West Virginia
and approved by the Attorney General of West Virginia with respect to its form;
(3) Be in favor of the
State of West Virginia for any person who is damaged by any violation of this
article. The bond must also be in favor of any person damaged by such a
violation.
(i) Any person claiming
against the bond required by subsection (h) of this section for a violation of
this article may maintain an action at law against any licensed individual or
firm and against the surety. The surety shall be liable only for damages
awarded under section twelve of this article and not the punitive damages
permitted under that section. The aggregate liability of the surety to all
persons damaged by a person or firm licensed under this article may not exceed
the amount of the bond
§30-18-6. Application requirements for a license to conduct security guard business.
(a) To be licensed as a
security guard or to operate a security guard firm, each applicant shall complete
and file a written an application under oath with the
Secretary of State in a manner or method authorized and in such form as
the secretary may prescribe.
(b) On the application, each applicant shall provide the following information: The applicant’s name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state and any other information requested by the Secretary of State in order to comply with the requirements of this article.
(c) In the case of a
corporation that is seeking a firm license, the application shall be signed by
the president, and verified by the secretary or treasurer of such
corporation and shall specify the name of the corporation, the date and place
of its incorporation, the names and titles of all officers, the location of its
principal place of business, and the name of the city, town or village, stating
the street and number, and otherwise such apt description as will reasonably
indicate the location. If the corporation has been incorporated in a state
other than West Virginia, a certificate of good standing from the state of
incorporation must accompany the application. This information shall be
provided in addition to that required to be provided the applicant.
(d) The applicant shall provide:
(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;
(2) Information about offenses against the laws of West Virginia or any state; and
(3) Any facts as may be required by the Secretary of State to show the good character, competency and integrity of the applicant.
To qualify for a firm license, the applicant shall provide such information for each person who would be authorized to conduct security guard business under the applicant’s firm license and for each officer, member or partner in the firm.
(e) As part of the application, each applicant shall give the Secretary of State permission to review the records held by the department of public safety for any convictions that may be on record for the applicant.
(f) For each applicant for
a license, and for each officer, member and partner of the firm applying for
a license the application shall be accompanied by one recent full-face
photograph and one complete set of the person's fingerprints of each
applicant.
(g) For each applicant, the application shall be accompanied by:
(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct security guard business; and
(2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State to offset the cost of license review and criminal investigation background report from the department of public safety, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm, or $500 if the applicant is a nonresident of West Virginia or a foreign corporation or business entity. The license fee shall be deposited to the General Revenue Fund, and shall be refunded only if the license is denied.
(h) All applicants for security guard licenses or security guard firm licenses shall file in the office of Secretary of State a surety bond. Such bond shall:
(1) Be in the sum of $2,500 and conditioned upon the faithful and honest conduct of such business by such applicant;
(2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and approved by the Attorney General of West Virginia with respect to its form;
(3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.
(i) Any person claiming against the bond required by subsection (h) of this section for a violation of this article may maintain an action at law against any licensed individual or firm and against the surety. The surety shall be liable only for damages awarded under §30-18-12 of this code and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person or firm licensed under this article may not exceed the amount of the bond.
§30-18-10. Authority of Secretary of State.
(a) When the Secretary of State is satisfied as to the good character, competency and integrity of an applicant, of all employees or individuals conducting the private investigation business or security guard services under a firm license and, if the applicant is a firm, of each member, officer or partner, he or she shall issue and deliver to the applicant a certificate of license. Each license issued shall be for a period of one year and is revocable at all times for cause shown pursuant to subsection (b) of this section or any rules promulgated pursuant thereto.
(b) The Secretary of State may propose for promulgation in accordance with the provisions of chapter 29A of this code legislative rules necessary for the administration and enforcement of this article and for the issuance, suspension and revocation of licenses issued under the provisions of this article. The Secretary of State shall afford any applicant an opportunity to be heard in person or by counsel when a determination is made to deny, revoke or suspend an applicant’s license or application for license, including a renewal of a license. The applicant has 15 days from the date of receiving written notice of the Secretary of State’s adverse determination to request a hearing on the matter of denial, suspension or revocation. The action of the Secretary of State in granting, renewing, or in refusing to grant or to renew, a license is subject to review by the circuit court of Kanawha County or other court of competent jurisdiction.
(c) At any hearing before the Secretary of State to challenge an adverse determination by the Secretary of State on the matter of a denial, suspension or revocation of a license, if the adverse determination is based upon a conviction for a crime which would bar licensure under the provisions of this article, the hearing shall be an identity hearing only and the sole issue which may be contested is whether the person whose application is denied or whose license is suspended or revoked is the same person convicted of the crime.
(d) The Secretary of State shall require each applicant to submit to a state and national criminal history record check, as set forth in this subsection:
(1) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.
(2) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:
(A) Submitting fingerprints for the purposes set forth in this section, if required by the Secretary of State, West Virginia State Police or the Federal Bureau of Investigation; and
(B) Authorizing the Secretary of State, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.
(3) The results of the state and national criminal history record check may not be released to or by a private entity except:
(A) To the individual who is the subject of the criminal history record check;
(B) With the written authorization of the individual who is the subject of the criminal history record check; or
(C) Pursuant to a court order.
(4) The criminal history record check and related records are not public records for the purposes of chapter 29B of this code.
(5) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.
(6) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.
CHAPTER 39. RECORDS AND PAPERS.
ARTICLE 4A. OUT-OF-STATE COMMISSIONERS.
§39-4A-2. Powers of commissioners; official seals.
(a) Upon approval of a successful application, commissioners shall hold office for 10 years, unless removed by the Secretary of State under the grounds set forth in §39-4A-1(e) of this code.
(b) When any oath may lawfully be administered, or affidavit or deposition taken, within the state, territory or district for which any such commissioner is appointed, to be used in this state, it may be done by the commissioner.
(c) Each commissioner shall have an official seal, which shall be a rubber stamp and shall contain:
(1) The words “Official Seal”;
(2) The words “Commissioner for West Virginia”;
(3) The commissioner’s name exactly as it is written as an official signature;
(4) The city and state of residence of the commissioner; and
(5) The words “My Commission Expires” and the date of expiration of the commission.
(d) A stamped imprint of the seal, together with the
official signature, shall be filed in the office of the Secretary of State
(e) (d) Commissioners may take, within or any
place out of the State of West Virginia, the acknowledgements of deeds and
other writings to be admitted to the record in the State of West Virginia, but
each acknowledgement shall reflect where the acknowledgement was taken,
including, but not limited to, the state and county or territory.
(f) (e)
Every certificate of the commissioner shall be authenticated by his or her
signature and official seal.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 2. TRADEMARKS IN GENERAL.
§47-2-1. Definitions.
As used in this article:
(1) The term “trademark” means any word, name, symbol or device or any combination thereof used by a person to identify and distinguish the goods of such person, including a unique product, from those manufactured and sold by others, and to indicate the source of the goods, even if that source is unknown.
(2) The term “service mark” means any word, name, symbol or device or any combination thereof used by a person to identify and distinguish the services of one person, including a unique service, from the services of others, and to indicate the source of the services, even if that source is unknown. Titles, character names used by a person, and other distinctive features of radio or television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor.
(3) The term “mark” includes any trademark or service mark, entitled to registration under this article whether registered or not.
(4) The term “trade name” means any name used by a person to identify a business or vocation of such person.
(5) The term “person” and any other word or term used to designate the applicant or other party entitled to a benefit or privilege or rendered liable under the provisions of this article includes a juristic person as well as a natural person. The term “juristic person” includes a firm, partnership, corporation, union, association or other organization capable of suing and being sued in a court of law.
(6) The term “applicant”
embraces the person filing an application for registration of a mark under this
article, and the legal representatives, successors or assigns of such that
person.
(7) The term “registrant”
as used herein embraces the person to whom the registration of a mark under
this article is issued, and the legal representatives, successors or assigns of
such that person.
(8) The term “use” means
the bona fide use of a mark in the ordinary course of trade, and not made
merely to reserve a right in a mark. For the purposes of this article, a mark shall
be deemed is considered to be in use: (A) On goods when it is placed
in any manner on the goods or other containers or the displays associated
therewith or on the tags or labels affixed thereto, or if the nature of the
goods makes such placement impracticable, then on documents associated with the
goods or their sale, and the goods are sold or transported in commerce in this
state; and (B) on services when it is used or displayed in the sale or
advertising of services and the services are rendered in this state.
(9) A mark shall be
deemed is considered to be “abandoned “when either of the following
occurs:
(A) When its use has been
discontinued with intent not to resume such that use. Intent not
to resume may be inferred from circumstances. Nonuse for two consecutive years
shall constitute prima facie evidence of abandonment.
(B) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.
(10) The term “secretary” means the Secretary of State or the designee of the secretary charged with the administration of this article.
(11) The term “dilution” means the lessening of the capacity of registrant’s mark to identify and distinguish goods or services, regardless of the presence or absence of: (A) Competition between the parties; or (B) likelihood of confusion, mistake or deception.
(12) “Retail value” means:
(A) For items that bear a counterfeit mark and are components of a finished product, the regular selling price of the finished product in which the component would be utilized.
(B) For items that bear a counterfeit mark other than items described in paragraph (A) of this subdivision and for services that are identified by a counterfeit mark, the regular selling price of the item or service.
(13) “Sign” means the action of affixing a person’s signature to any document or record, whether by manual, written or approved electronic means.
(14) “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.
§47-2-3. Application for registration.
(a) Subject to the limitations set forth in this article, any person who uses a mark may file in the office of the secretary, in a manner complying with the requirements of the secretary, an application for registration of that mark setting forth, but not limited to, the following information:
(1) The name and business address of the person applying for such registration; and, if a corporation, the state of incorporation, or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the secretary;
(2) The goods or services on or in connection with which the mark is used and the mode or manner in which the mark is used on or in connection with such goods or services and the class in which such goods or services fall;
(3) The date when the mark was first used anywhere and the date when it was first used in this state by the applicant or a predecessor in interest; and
(4) A statement that the applicant is the owner of the mark, that the mark is in use, and that, to the knowledge of the person verifying the application, no other person has registered, either federally or in this state, or has the right to use such mark either in the identical form thereof or in such near resemblance thereto as to be likely, when applied to the goods or services of such other person, to cause confusion, or to cause mistake, or to deceive.
(b) The secretary may also require a statement as to whether an application to register the mark, or portions or a composite thereof, has been filed by the applicant or a predecessor in interest in the United States Patent and Trademark Office; and, if so, the applicant shall provide full particulars with respect thereto including the filing date and serial number of each application, the status thereof and, if any application was finally refused registration or has otherwise not resulted in a registration, the reasons therefor.
(c) The secretary may also require that a drawing of the mark, complying with such requirements as the secretary may specify, accompany the application.
(d) The application shall
be signed and verified before a notary public manually in writing or
electronically by the applicant or by a member of the firm or an officer of
the corporation or association applying.
(e) The application shall be accompanied by three specimens showing the mark as actually used.
(f) The application shall be accompanied by the application fee payable to the Secretary of State.
NOTE: The purpose of this bill is to continue implementation of the provisions of W. Va. Code § 31D-1-131 by removing certain unnecessary or redundant requirements to allow for electronic submission of various applications and forms for nonprofit and charitable organizations, professionals and licensees. These changes are consistent with existing business and licensing electronic filing processes and capabilities now available through the Secretary of State’s Office’s One Stop Web Portal, which was created in the year 2017 and has been modernized to allow for full implementation of the law.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.
