11 Va. Admin. Code § 5-90-60

Current through Register Vol. 40, No. 22, June 17, 2024

Section 11VAC5-90-60 - Applications for and issuance of facility operator's license

A. In addition to the processes and requirements set out in 11VAC5-90-40 and 11VAC5-90-50, the requirements set out in this section shall apply to the applications for a facility operator's license and the applicant's related entities and individuals.

B. Who may apply.

1. Only a preferred casino gaming operator may apply for a facility operator's license.

2. Unless approved in advance by the host city and otherwise consistent with the casino gaming law, this chapter, and any other law, regulation, or condition of the department related to casino gaming, the preferred casino gaming operator may not deviate substantively from the plan it submitted to the host city and the department during the certification process set out in §§ 58.1-4107 F and 58.1-4109 of the Code of Virginia.

C. An applicant for a facility operator license shall submit with its application all required fees for:

1. The applicant itself;

2. Its owners, principals, directors, and officers;

3. Any supplier that is expected to provide casino management for the applicant; and

4. All known key managers.

D. Evaluation.

1. The department shall review an application for a facility operator's license to determine whether the applicant is qualified to hold an operator's license.

2. An applicant for a facility operator's license shall present in its application sufficient information, documentation, and assurances to establish the following qualification criteria by clear and convincing evidence:

a. Substantiation that the applicant has made or will make prior to the issuance of an operation license for a permanent casino facility or at the end of any period of operation of casino gaming in an approved temporary facility, a capital investment of at least $300 million, including the value of the real property upon which the facility is located and all furnishings, fixtures, and other improvements;

b. Substantiation that the applicant possesses an equity interest of at least 20% in the facility;

c. For an applicant that is a Virginia Indian tribe, certification that the material terms of all relevant development agreements between the Virginia Indian tribe and any development partner have been determined in the opinion of the Office of General Counsel of the National Indian Gaming Commission after review not to deprive the Virginia Indian tribe of the sole proprietor interest in the facility's gaming operations for the purposes of federal Indian gaming law;

d. Existence of an adequate plan for addressing responsible gaming issues, including the goals of the plan, procedures, and deadlines for implementation of the plan;

e. Establishment of a policy requiring that everyone who interacts directly with the public in the facility has completed a course approved by the department in how to recognize and report suspected human trafficking;

f. Substantiation that the applicant's proposed permanent facility is or will be appropriate for gaming operations consistent with the purposes of the casino gaming law and this chapter;

g. Certification from the city where the facility will be located that the proposed project complies with all applicable land use ordinances pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia;

h. Substantiation that any required local infrastructure or site improvements, including necessary sewerage, water, drainage facilities, or traffic flow, are to be paid exclusively by the applicant without state or local financial assistance;

i. If the applicant is an entity, demonstration that its securities are fully paid and, in the case of stock, nonassessable and have been subscribed and will be paid for only in cash or property to the exclusion of past services;

j. Uncontested and enforceable written agreement that all principals meet the criteria of this chapter and have submitted to the jurisdiction of the Virginia courts, and that all nonresident principals have designated the director as their agent for receipt of process;

k. If the applicant is an entity, substantiation that it has the right to purchase at fair market value the securities of, and require the resignation of, any person who is or becomes disqualified under subsection E of this section;

l. Substantiation that the applicant meets any other criteria established by the casino gaming law and this chapter for the granting of an operator's license, including submission to the department of adequate plans for operation of casino gaming and on-premises mobile casino gaming as required by this chapter;

m. Substantiation that the applicant is qualified to do business in Virginia or is subject to the jurisdiction of the courts of the Commonwealth;

n. Substantiation that the applicant or its principals have not previously been denied a license pursuant to subsection E of this section;

o. Substantiation of the financial responsibility of the applicant and the applicant's ability to fulfill the requirements of the casino gaming law, this chapter, or any other law, regulation, or condition of the department related to casino gaming, including the applicant's financing plan for the casino gaming establishment; and

p. Where "minority individual" and "minority-owned business" mean the same as those terms are defined in § 2.2-1604 of the Code of Virginia, submission of:

(1) A minority investment plan disclosing any equity interest owned by a minority individual or minority-owned business or the applicant's efforts to seek equity investment from minority individuals or minority-owned businesses, and

(2) A plan for the participation of minority individuals or minority-owned businesses in the applicant's purchase of goods and services related to the casino gaming establishment.

E. Required denials.

1. The board shall deny a facility operator's license to an applicant if the board finds that for any reason the issuance of a license to the applicant would reflect adversely on the honesty and integrity of the casino gaming industry in the Commonwealth or that the applicant, or any officer, principal, manager, or director of the applicant:

a. Has failed to prove by clear and convincing evidence that the applicant and each person who owns or controls the applicant are qualified under subsection D of this section;

b. Is under current prosecution for or has been found guilty of any illegal act, conduct, or practice in connection with gaming operations in this or any other state or has been convicted of a felony, provided that, at the request of the applicant, the board may defer its decision on the application during the pendency of the charge;

c. Has had a license or permit to hold or conduct a gaming operation denied for cause, suspended, or revoked, in this or any other state or country, unless the license or permit was subsequently granted or reinstated;

d. Has at any time during the previous five years knowingly failed to comply with the provisions of the casino gaming law, this chapter, or any other law, regulation, or condition of the department related to casino gaming;

e. Has knowingly made a false statement of material fact to the department or has deliberately failed to disclose any information requested by the department;

f. Has willfully defied a legislative investigatory body or other official investigatory body of the United States, or a jurisdiction within the United States, when the body is engaged in the investigation of crimes relating to gambling, official corruption, or organized crime activity;

g. Has defaulted in the payment of any obligation or debt due to the Commonwealth and has not cured such default; or

h. Has operated or caused to be operated a casino gaming establishment for which a license is required under this chapter without obtaining such license.

F. Issuance term and conditions.

1. As a condition of accepting a facility operator's license to an applicant, the licensee expressly acknowledges its duty to adhere to its application, the plan it submitted to the host city and the department during the certification process set out in §§ 58.1-4107 F and 58.1-4109 of the Code of Virginia, all requirements of the casino gaming law, this chapter, and any other law, regulation, or condition of the department related to casino gaming.

2. The term of a facility operator's license begins on the day of issuance and continues for 10 years, subject to annual review consistent with § 58.1-4111 of the Code of Virginia.

3. A casino may not begin operations before the board has issued the facility operator's license.

4. The department may issue a facility operator's license subject to conditions.

5. No portion of any structure developed with the assistance of grants or loans provided by a redevelopment and housing authority created by § 36-4 of the Code of Virginia may be used as a casino gaming establishment.

6. The facility operator shall submit a nonrefundable issuance fee of $15 million before the operation license is issued and upon any approved transfer of the license

7. The board may issue a facility operator's license only after determining that:

a. The facility complies with the casino gaming law, this chapter, and any other law, regulation, or condition of the department related to casino gaming;

b. All gaming machines and associated equipment have been tested and comply with the casino gaming law, this chapter, and any other law, regulation, or condition of the department related to casino gaming;

c. The gaming floor plan complies with the casino gaming law, this chapter, and any other law, regulation, or condition of the department related to casino gaming;

d. The facility operator's internal controls comply with the casino gaming law, this chapter, and any other law, regulation, or condition of the department related to casino gaming;

e. The facility operator is prepared to implement the internal controls, surveillance, and security procedures that are necessary to ensure that the operation of all casino gaming is conducted safely and legally;

f. The facility operator's employees are:

(1) Properly permitted by the department; and

(2) Trained in the performance of their responsibilities;

g. The facility is prepared in all respects to receive the public;

h. The facility operator has complied with any additional pre-opening conditions imposed by the department; and

i. The facility operator has successfully completed a test period.

8. A licensed casino gaming facility operator is not prohibited from operating:

a. An online sports betting operation licensed by the Lottery under the Virginia Lottery Law (§ 58.1-4000 et seq. of the Code of Virginia) and the Sports Betting regulation (11VAC5-70); or

b. A sports betting facility for individuals to participate in sports betting activities in the casino gaming establishment, including in-person sports betting where a player places a wager directly with a gaming employee of the casino or the sports betting permit holder, or through a kiosk or device.

G. Temporary facility.

1. The holder of, or applicant for, a facility operator's license may ask the department to authorize casino gaming to occur in a temporary facility.

2. Gaming may be conducted in a temporary facility for one year.

3. Gaming in a temporary facility does not extend the 10-year term of the facility operator's license.

4. Approval to conduct casino gaming in a temporary facility shall be conditioned upon:

a. The applicant's having been issued a facility operator's license;

b. Approval by the host city and the department of the facility operator's construction schedule for the permanent facility;

c. Using the same site for the temporary facility as was approved by the host city's voters in the referendum held pursuant to § 58.1-4123 of the Code of Virginia;

d. The facility operator having secured suppliers and employees holding the permits required and sufficient for the routine operations of the site where the temporary gaming will be authorized; and

e. Posting of a performance bond in an amount acceptable to the department.

5. The department may extend the authorization to conduct casino gaming in a temporary facility for an additional year if it determines that the licensee has made a good faith effort to comply with the approved construction schedule.

H. Suspension, civil penalties, revocation, and nonrenewal.

1. In addition to any other sanctions or civil penalties, including those set out in 11VAC5-90-90, the director may impose a civil penalty or suspend, revoke, or refuse to renew a facility operator's license for:

a. Failure to comply with, or violation of, any provision of the casino gaming law, this chapter, or any other law, regulation, or condition of the department related to casino gaming;

b. Failure to disclose facts during the application process that indicate that the operation license should not have been issued;

c. Conviction of a felony under the laws of the Commonwealth of Virginia or any other state, or of the United States subsequent to issuance of the facility operator's license;

d. Failure to file any return or report, keep any record, or pay any fee or other charges required by the casino gaming law, this chapter, or any other law, regulation, or condition of the department related to casino gaming;

e. Any act of fraud, deceit, misrepresentation, or conduct prejudicial to public confidence in the integrity of gaming operations; or

f. A material change, since issuance of the facility operator's license, with respect to any matters required to be considered by the director under the casino gaming law, this chapter, or any other law, regulation, or condition of the department related to casino gaming.

2. The director may temporarily suspend a facility operator's license without notice pending any prosecution, hearing, or investigation, whether by a third party or by the director.

3. Disputes related to a suspension, revocation, or refusal to renew a facility operator's license shall be conducted pursuant to the procedures set out in 11VAC5-90-40 F.

I. Renewal.

1. A license may be renewed for additional 10-year terms.

2. The criteria and procedures for license renewal shall be the same for successive renewal terms as for the initial term of licensure, including the application fees for background and other investigations, unless the facility operator's operational and capital investment plans have been approved for amendment by the department.

3. A facility operator shall notify the department 18 months before the expiration of its license term if it does not intend to seek renewal.

4. A facility operator shall submit a completed renewal application, for itself and its principals and employees, along with any required fees, between 15 and 12 months before the expiration of its current license.

5. A facility operator shall submit a nonrefundable renewal fee of $15 million before the operation license is re-issued.

6. A license renewal request shall not be unreasonably refused by the board.

11 Va. Admin. Code § 5-90-60

Derived from Virginia Register Volume 37, Issue 16, eff. 3/11/2021; Amended, Virginia Register Volume 38, Issue 13, eff. 3/16/2022.

Statutory Authority: §§ 58.1-4101 and 58.1-4102 of the Code of Virginia.