Lottery officials can put up 300-foot buffer, court rules

CHARLESTON – State lottery commissioners can require 300 foot buffer zones around video lottery machines, the Supreme Court of Appeals decided on April 26.

Four Justices rejected claims of a landlord in one case and an Elks club in another that the commissioners exercised powers of the Legislature in passing a 300 foot rule.

Chief Justice Robin Davis knocked down a plea that the rule violated rights.

"The Legislature very explicitly has cautioned that a license to participate in limited video lottery is a privilege, not a right," she wrote.

She quoted from the law that, "A person seeking a license or other affirmative lottery commission approval has no right to a license or to the granting of the approval sought."

David Kokochak of Chester, who wished to lease a building to a lottery operator, challenged a ban on machines near gas stations.

The Elks of Parkersburg challenged a ban near churches.

In Kanawha County circuit court, Kokochak won and the Elks lost.

Circuit Judge Irene Berger, now a federal judge, ruled that commissioners regulated Kokochak's private conduct and his exercise of private privileges.

"No such restriction was made by the Legislature," she wrote.

She held the rule void and invalid because legislators had not authorized it.

Circuit Judge L.D. Egnor took an opposite view, finding no right to a license and no improper exercise of agency power.

He wrote that "the very purpose of administrative authority is to provide an agency with the flexibility and authority necessary to protect the public."

At the Supreme Court, four Justices agreed with Egnor.

"Because a limited video lottery license is not a right, the regulation at issue herein cannot be construed to be a legislative rule abridging individual rights," Davis wrote.

Justices Thomas McHugh, Margaret Workman and Menis Ketchum agreed.

Justice Brent Benjamin dissented, reserving the right to file an opinion.

Attorney General Darrell McGraw and assistant Scott Johnson represented the commissioners.

Michael Nogay of Weirton represented Kokochak.

William Richardson of Parkersburg represented the Elks.