West Virginia is among some of the smaller US states, ranked 41st in terms of land mass and 38th in population with 1,850,326 (est. 2014). Nicknamed the ‘Mountain State’, it’s a hotbed for tourists who enjoy outdoor recreational activities like white water rafting, skiing, hiking, fishing and hunting. For many years, the region has drawn a majority of its economic value from logging, coal mining and other labor industries. Since 2007, casino gambling and poker rooms were added to the state’s list of tax generators.
Government officials in West Virginia have generally adopted a pattern of following their neighbors’ footsteps when it comes to gambling regulations. Although online poker is not currently authorized or regulated in the Mountain State, legalization in nearby Delaware and New Jersey, combined with talks of impending legislation in Pennsylvania, could result in online poker regulations in West Virginia in the near future.
While we know online poker isn’t specifically legal in the state, the aim of this document is to determine whether it’s illegal, or falls into a grey area of the law. We’ll do that by examining the current gambling industry and relative legalities as they may pertain to online poker.
Land-based Gambling in West Virginia
West Virginia is home to a modest number of gambling establishments, the majority of which are racinos. While race tracks have been operating in the state since the 1920’s, it wasn’t until 2007 that a referendum to permit slot machines in licensed casinos was passed, followed by the county-by-county passage of table game allotments.
Since then, all four pari-mutuel facilities in West Virginia have installed casinos with slot, table games and poker rooms. The only commercial casino in the state, Casino Club at the Greenbrier, is not authorized to install table games, and is only permitted to open its casino to “guests” of the establishment.
Deciphering the Laws of West Virginia as they relate to Online Poker
The following excerpts are taken directly from the West Virginia Code Chapter 61, Article 10, Crimes Against Public Policy, and Chapter 29, Article 22, State Lottery Code.
|Section||Text||Meaning (in re online poker)|
|§61-10-1 Keeping or exhibiting gaming table, machine, or device; penalty; seizure of table, machine or device; forfeiture of money used in such gaming.||Any person who shall keep or exhibit a gaming table, commonly called A.B.C. or E.O. table, or faro bank, or keno table, or any…device in the nature of a slot machine, or any other gaming table or device of like kind…whether the game, table, bank, machine or device be played with cards, dice or otherwise…shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not less than two nor more than twelve months and be fined not less than one hundred nor more than one thousand dollars. Any such…gaming device, and all money staked…may be seized by order of a court…and the…gaming device shall be completely destroyed…||This section refers to penalties for operators who provide gambling devices that are not authorized by law or located in licensed facilities. We’ve included this section because its definitions of gambling amusements relate to the contents of the following WVC excerpts.|
|§61-10-4 Playing or betting at gaming tables and devices; playing or betting on games at hotels and public places; penalty.||If any person bet or play at any such gaming table, bank or device as is mentioned in the first section of this article…shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than five nor more than one hundred dollars, and…may be imprisoned in the county jail not more than three months.||To be convicted of placing any illegal bet in West Virginia, including at a “gaming table” where the game is “played with card” (i.e. poker), can be punished with a fine of $5-$100 and/or up to 3 months in jail.
According to §61-10-5 (below), this section seems to refer to poker and other games that combine chance and skill.
|§61-10-5 Betting on games of chance; furnishing money or thing of value therefor; penalty.||If any person at any place, public or private, bet or wage money or other thing of value on any game of chance, or shall knowingly furnish any money or other thing of value to any other person to bet or wage on any such game, he shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than five nor more than three hundred dollars, and shall, if required by the court, give security for his good behavior for one year, and in default of the payment of such fine and the costs and the execution of such bond, if such bond be required, shall be imprisoned in the county jail not less than ten nor more than thirty days.||This section is similar to §61-10-4, except that it refers specifically to wagers on a “game of chance”. Thus, by default, §61-10-4 appears to refer to games that involve skill, such as poker. However, if poker were to be deemed a game of chance, the penalty would rise to $5-$300 and/or possible jail time of 10-30 days.|
|§29-22B-331 Video gambling machine defined.||(a) “Video gambling machine” means a computerized device:|
|(1) That is not approved and registered by the commission…||Any “video gambling machine” not authorized by the state is illegal.|
|(3) That has a storage medium containing the source language or executable code of a computer program that cannot be reasonably demonstrated to have any use other than, through the display of pictures, words, numbers or symbols, simulating the play of such games as poker, blackjack, roulette, baccarat, keno, craps, or any other game of skill or chance of whatever name or kind;||A computer/laptop with real-money online poker software, or a mobile device with a real-money poker application installed, can be construed as a “video gambling device” if…|
|(4) That allows a person, by inserting currency, coins, tokens or other similar objects into the machine, or by otherwise making some payment of consideration, to make the machine available for the person to play;||…the game is playable for real money or any other thing of value.|
|(5) That allows a person playing the machine an opportunity to win (A) cash, (B) play credits, (C) tokens, tickets, vouchers or other things that can be exchanged for cash or any other thing of value, or (D) prizes, premiums, merchandise or any other thing of value, whether by reason of the skill of the player or by the application of the element of chance, or both; and||…the player is able to make a payment to play for money or anything of value.|
|(6) That can result in a payoff to a winning player automatically from the machine or in any other manner whatsoever.||…the player is able to receive or withdrawal any winnings in any way, including by withdrawal to a credit/debit card, bank account or online payment processor.|
Is Online Poker Illegal in West Virginia?
Yes. Although online gambling isn’t specifically mentioned in the West Virginia Code, the legislation above clearly implies that anyone caught gambling on any unauthorized game of chance, with or without an element of skill, in a public or private place, is unlawful. The definition of a “video gambling device” could easily be interpreted to include a computer or mobile device, thus we must conclude that real money online poker games are illegal by default in West Virginia, and punishable by law.
It should be noted at least that no one has ever been charged with or convicted of illegal online poker, or even playing in an unlawful home poker game, in West Virginia. With that in mind, until the state chooses to either authorize or explicitly prohibit online poker games, the threat of penalty is a minimal one.
Is West Virginia working to Legalize Online Poker?
Maybe. According to John Musgrave, Director of the West Virginia Lottery, lawmakers are considering various options in regards to the regulation of online gambling. Administrators held a meeting in August 2014, after which Musgrave made this statement to the press:
|“We’re still exploring [online gaming] because we feel that’s the way the industry’s moving, so we want to plan for it. We have not yet made any decision for how we’re going to implement it, but we are looking at it, studying it and seeing how our casinos in our jurisdiction can move in that direction.”|
The Director indicated that a steady reduction in gaming revenue was the result of cannibalization from new gambling opportunities in nearby states, particularly land-based casino expansion projects in Maryland and Ohio. Musgrave said he believes the state could implement online lottery sales without the need for new legislation, but that online poker and casino gambling would require amendments to the current gambling laws.
Thus far, no online gaming legislation has been introduced in 2015.
Online Poker Players from West Virginia
West Virginia may not be a heavily populated state, but there are plenty of online poker fans hoping legislators will follow in the footsteps of Delaware, Nevada and New Jersey to regulate internet gaming. Of the state’s few online poker players that have made their identities known over the years are Dana “dwatts1350” Watts, John “letsdothis68” Altizer, Brad “actbriz” Brizendine, Gerry “roledupkings” Harris,
Land-Based Card Rooms in West Virginia
West Virginia plays host to 5 gambling destinations, including 1 commercial casino and 4 racinos. Only racinos are authorized by the state to present their guests with a live poker room.
Casino Club at The Greenbrier
Poker Room: No
Hollywood Casino at Charles Town Races
Charles Town, WV
Poker Room: Yes
Mardi Gras Casino and Resort
Cross Lanes, WV
Poker Room: Yes
Mountaineer Casino, Racetrack and Resort
Poker Room: Yes
Wheeling Island Hotel-Casino-Racetrack
Poker Room: Yes