W. Va. Code R. § 179-5-34

Current through Register Vol. XLI, No. 36, September 6, 2024

Section 179-5-34 - Prohibition against a business selling petroleum products establishing 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

34.1. The commission may grant a license to and renew the license of an applicant for a limited video lottery retailer license for a restricted access adult-only facility that is contiguous to or adjoining a business that sells petroleum products so long as all of the following requirements are met:

34.1.a. The restricted access adult-only facility is not owned or operated either directly or indirectly by a direct or indirect owner of the business selling petroleum products; and

34.1.b. If the facility is leased, directly or indirectly, from the business selling petroleum products or from the direct or indirect owner of that business, the lease must be for a fixed monthly fair market rent and may not be based, in whole or in part, on the gross or net income of the video lottery terminals or on the video lottery income of the tenant licensee; or

34.1.c. If the facility is leased, directly or indirectly, from the landlord who directly or indirectly also leases space to the business selling petroleum product, the lease must be for a fixed monthly fair market rent and may not be based, in whole or in part, on the gross or net income of the video lottery terminals or on the video lottery income of the tenant licensee.

34.2. The commission shall not grant a license to an applicant for a restricted access adult-only facility that fits within one or more of the following situations:

34.2.a. A business that sells petroleum products has subdivided its building or space within a building in order to create a restricted access adult-only facility to be owned or operated either directly or indirectly by a direct or indirect owner of the business that sells petroleum products;

34.2.b. The owner of a commercial business facility leased to a business that sells petroleum products has subdivided the facility on or after April 21, 2001, in order to create a restricted access adult-only facility to be owned or operated either directly or indirectly by a direct or indirect owner of the lessor;

34.2.c. A business that sells petroleum products has subdivided its parcel of land in order to create a restricted access adult-only facility to be owned or operated either directly or indirectly by a direct or indirect owner of the business selling petroleum products;

34.2.d. The owner of a commercial business facility leased to a business that sells petroleum products has subdivided the parcel of land on which the business selling petroleum products operates in order to create a restricted access adult-only facility on a separate parcel to be owned or operated either directly or indirectly by a direct or indirect owner of the lessor or the business selling petroleum products;

34.2.e. The restricted access adult-only facility is in a facility that is contiguous to, adjoining, or on a parcel of real property adjoining a business that sells petroleum products and is owned or operated either directly or indirectly by a direct or indirect owner of the business selling petroleum products;

34.2.f. The restricted access adult-only facility is leased from an adjoining or contiguous business selling petroleum products, and the consideration for the lease is based in whole or in part on the gross or net income of the video lottery terminals or on the video lottery income of the tenant; or

34.2.g. The restricted access adult-only facility is leased from the same landlord who also leases space to an adjoining or contiguously located business selling petroleum products, and the consideration for the lease is based in whole or in part on the gross or net income of the video lottery terminals or on the video lottery income of the tenant.

34.3. For purposes of determining whether property is "directly or indirectly" owned or leased by or from a related person, the related party rules set forth in 26 U.S.C. §§ 267 and 707, as amended, apply, including any regulations for that section issued by the United States Secretary of the Treasury, which are hereby incorporated by reference.

W. Va. Code R. § 179-5-34