WSR 98-19-132

PERMANENT RULES

GAMBLING COMMISSION

[Order 363--Filed September 23, 1998, 11:26 a.m., effective January 1, 1999]



Date of Adoption: August 14, 1998.

Purpose: This rule was rewritten to more clearly state the requirements an organization must meet to demonstrate it has made significant progress towards its stated purposes. Also set out in this rule are the criteria that an organization must meet when requesting a waiver from the director when it has been unable to make the required progress towards its stated purposes.

Citation of Existing Rules Affected by this Order: Amending WAC 230-08-255.

Statutory Authority for Adoption: RCW 9.46.070.

Adopted under notice filed as WSR 98-10-049 on April 29, 1998, with a publication date of May 20, 1998.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 1, repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 1, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: January 1, 1999.

September 22, 1998

Susan Arland

Public Information Officer

OTS-2332.3

AMENDATORY SECTION (Amending WSR 96-07-075, filed 3/19/96, effective 7/1/96)



WAC 230-08-255  Bona fide charitable or nonprofit organizations--Significant progress required--Procedures--Exception. ((Any charitable or nonprofit organization requesting to be certified to conduct gambling activities must demonstrate it has made significant progress toward meeting its stated purpose(s) during the period under review. "Significant progress" means an organization has complied with requirements set forth in its bylaws and articles of incorporation; has actively engaged in providing services to the public or its members during the entire period under consideration; and the services provided directly relate to the stated purposes of the organization. Such activities will be deemed significant when an organization utilizes a substantial portion of the resources it has available, including net gambling income, for providing services. Provided that: Any organization requesting to be certified to operate gambling activities in Group III, IV, or V, as defined in WAC 230-12-076, shall demonstrate it has made "significant progress" by meeting the following additional requirements:

(1) Elections to select officers were held at least once in the previous two years;

(2) A general membership meeting to conduct the business of the organization was held at least once in the previous two years;

(3) At least sixty percent of the net gambling income earned in the organization's most recently completed fiscal accounting year was utilized in the same period as functional expenses to provide services to members or the public. The following procedures apply for purposes of determining compliance with this subsection:

(a) Fees paid by members or the public to receive services or to participate in specific activities shall be classified as a reduction to expenses for providing such services and as income to the extent fees paid exceed the cost of providing such services;

(b) The amount of net gambling income used to provide services in the year under review shall be determined by the following procedure:

(i) Compute the amount of net gambling income that must be used for services by multiplying net gambling income for the period by sixty percent or six tenths (0.6);

(ii) Compute the ratio of net gambling income when compared to total net revenue from all sources for the period by dividing net gambling income by total net revenue from all sources;

(iii) Compute the amount of net gambling income that was used for services by multiplying total expenses of providing services for the period by the result of the computation in (b)(ii) of this subsection; and

(iv) The results of the computation in (b)(iii) of this subsection must be equal to or greater than the results of the computation in (b)(i) of this subsection;

(c) An organization may be exempted from this subsection for a limited time if it:

(i) Has a formal plan to utilize an amount that is equal to or greater than sixty percent of the net gambling income earned in the current period to provide services in the next fiscal accounting period and the plan is submitted to the commission as a part of its annual progress and financial report required by WAC 230-08-122. Such services shall be in addition to those required for the next period; or

(ii) Is reserving funds to start or expand specific programs. If funds are being reserved to start or expand specific programs, the organization must expend at least twenty-five percent of net gambling income for providing services in the current fiscal accounting period;

(4) It does not expend more than thirty-five percent of functional expenses for supporting service expenses. If more than fifty percent of functional expenses are provided through indirect methods such as contributions, scholarships, and/or sponsorships, services, then not more than twenty percent of functional expenses shall be spent for supporting services;

(5) Compliance with the requirements of this section shall be prima facie evidence that an organization has made significant progress towards accomplishing its stated purposes.)) A charitable or nonprofit organization requesting to be certified to conduct gambling activities must demonstrate that it has made significant progress toward its stated purposes during the period under review. Any organization that demonstrates compliance with all requirements of this section, during the fiscal year under review, shall be deemed as having made the progress required for its purposes. The following definitions and procedures will be utilized to measure an organization's progress:

(1) An organization will be deemed to have made progress toward its stated purposes when it:

(a) Complies with all requirements set forth in its bylaws and articles of incorporation; and

(b) Actively engages in providing services to the public or its members during the entire period under consideration, and such services directly relate to the stated purposes of the organization.

(2) Progress toward an organization's stated purpose will be deemed to be significant when such organization uses a substantial portion of its available resources for providing program services in an efficient manner.

(a) For purposes of this section, available resources include the net income generated by or from the following sources for the period under review:

(i) All fund-raising activities, including net gambling income;

(ii) Grants, gifts, and contributions from private sources; and

(iii) Public support.

(b) Available resources do not include:

(i) Funds generated in periods other than the period under review;

(ii) Funds that are raised or contributed from outside the organization for purposes of purchasing land or capital assets or to endow future operations when such funds are specifically identified by the board or contributors as restricted and separately recorded in the organization's records;

(iii) Fees paid by members or the public to receive services or to participate in specific activities. Such fees shall be classified as a reduction to both program service and supporting service expenses on a pro rata basis and as a reduction to resources available for providing services in the current period; or

(iv) Net income from the sale of assets.

(3) In addition to the criteria outlined above, any organization requesting to be certified to operate gambling activities at Group IV or V levels, as defined in WAC 230-12-076, shall demonstrate it has made significant progress by providing evidence that:

(a) Elections to select officers were held at least once in the previous two years;

(b) A general membership meeting to conduct the business of the organization was held at least once in the previous two years;

(c) A substantial portion of available resources was used to provide services during the period. An organization shall be deemed to have met this requirement when it demonstrates it has expended at least sixty percent of the net gambling income earned in the organization's most recently completed fiscal accounting year, for both program and supporting services (functional expenses); and

(d) Available resources were utilized in an efficient manner during the period. Available resources will be deemed to be utilized in an efficient manner when no more than thirty-five percent of total functional expenses is utilized to provide supporting services as defined by WAC 230-02-279: Provided, That if more than fifty percent of total program services expenses was utilized to provide services through indirect methods such as grants, contributions, scholarships, and/or sponsorships, then supporting services expenses shall not exceed twenty percent of functional expenses.

(4) For purposes of computing the percentage of functional expenditures utilized to provide supporting services in the year under review as set forth in subsection (3)(d) of this section, the following procedures apply:

(a) Compute the amount of expenditures made for supporting services;

(b) Divide supporting service expenditures by the total amount expended for functional expenses; and

(c) The result of the computation made at (b) of this subsection must be equal to or less than the limitation set forth in subsection (3)(d) of this section.

(5) When an organization does not keep assets procured with gambling proceeds physically and functionally separate from all other assets, the amount of net gambling income required to be utilized to provide program and supporting services (functional expenses) in the year under review shall be determined as follows:

(a) Compute the amount of net gambling income that must be used for functional expenses by multiplying net gambling income for the period by sixty percent;

(b) Compute the ratio of net gambling income when compared to total net revenue from all sources for the period by dividing net gambling income by total net revenue from all sources;

(c) Compute the amount of net gambling income used for functional expenses by multiplying total functional expenses by the result of the computation in (b) of this subsection; and

(d) Total functional expenses must equal or exceed the result from (a) of this subsection.

(6) An organization that is unable to demonstrate it has made significant progress by complying with the financial standards and procedures set forth elsewhere in this section may request the director to waive all or portions of the requirements.

(a) In determining whether to grant such a waiver, the director may consider the following:

(i) Whether the organization's inability to comply is temporary and due to unusual circumstances;

(ii) Whether the organization is reserving funds to start or expand specific programs in the future;

(iii) Whether the organization utilizes a substantial amount of capital assets that are not subject to depreciation or amortization to provide program services. Examples are: Fully depreciated building or equipment; fully amortized leasehold improvements; assets which are not normally depreciated such as land used for athletic fields, riding areas, parks, etc.; and

(iv) Whether the organization conducts a substantial portion of its services through volunteers.

(b) In order for the director to consider a waiver, the organization shall meet the following requirements:

(i) The organization's board shall acknowledge in writing that they are aware of the circumstances, have taken steps to correct the situation which prevented compliance, and have approved a plan that addresses delivery of program services in the future; and

(ii) The organization must expend at least twenty-five percent of its net gambling income to provide program services in the current period.

(c) The director will provide the licensee a hearing pursuant to WAC 230-50-010(6), if a waiver will be denied.



[Statutory Authority: RCW 9.46.070 (1), (8-11), (14), (16), (20). 96-07-075, 230-08-255, filed 3/19/96, effective 7/1/96. Statutory Authority: RCW 9.46.070, 9.46.0261 and 9.46.0209. 94-01-035, 230-08-255, filed 12/6/93, effective 1/6/94.]

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