Senate Bill No. 75
(By Senators Kessler, Guills and White)
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[Introduced February 11, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §11-16-19 of the Code of West Virginia,
1931, as amended; and to amend and reenact §49-1-4 of said
code, all relating to changing the use of alcoholic beverages
by minors from a status offense to a juvenile delinquent
offense.
Be it enacted by the Legislature of West Virginia:
That §11-16-19 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §49-1-4 of said code be amended
and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-19. Unlawful acts of persons; criminal penalties.
(a) (1) Any person eighteen or over, but under the age of
twenty-one years, who purchases, consumes, sells, possesses or
serves nonintoxicating beer is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed $500 or
shall be incarcerated in jail for a period not to exceed
seventy-two hours, or both fined and imprisoned or, in lieu of such
fine and incarceration, may, for the first offense, be placed on
probation for a period not to exceed one year. Any person under
the age of eighteen years who purchases, consumes, sells, possesses
or serves nonintoxicating beer is guilty of a status offense as
that term is defined in section four, article one, chapter
forty-nine of this code and, upon adjudication therefor, shall be
referred to the Department of Health and Human Resources for
services, as provided in section eleven, article five of said
chapter.
(2) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be deemed to prohibit any person who
is at least eighteen years of age from serving in the lawful
employment of any licensee, which may include the sale or delivery
of nonintoxicating beer as defined in this article. Further,
nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be deemed to prohibit any person who
is less than eighteen but at least sixteen years of age from being
employed by a licensee whose principal business is the sale of food
or consumer goods or the providing of recreational activities,
including, but not limited to, nationally franchised fast-food
outlets, family-oriented restaurants, bowling alleys, drug stores, discount stores, grocery stores and convenience stores: Provided,
That such person shall not sell or deliver nonintoxicating beer.
(3) Nothing in this subsection shall prohibit a person who is
at least eighteen years of age from purchasing or possessing
nonintoxicating beer when he or she is acting upon the request of
or under the direction and control of any member of a state,
federal or local law-enforcement agency or the West Virginia
Alcohol Beverage Administration while the agency is conducting an
investigation or other activity relating to the enforcement of the
alcohol beverage control statutes and the rules of the
commissioner.
(b) Any person under the age of twenty-one years who, for the
purpose of purchasing nonintoxicating beer, misrepresents his or
her age or who for such purpose presents or offers any written
evidence of age which is false, fraudulent or not actually his or
her own or who illegally attempts to purchase nonintoxicating beer
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed $50 or shall be imprisoned in jail
for a period not to exceed seventy-two hours, or both such fine and
imprisonment or, in lieu of such fine and imprisonment, may, for
the first offense, be placed on probation for a period not
exceeding one year.
(c) Any person who shall knowingly buy for, give to or furnish
nonintoxicating beer to anyone under the age of twenty-one to whom they are not related by blood or marriage is guilty of a
misdemeanor and, upon conviction thereof, shall be fined an amount
not to exceed $100 or shall be imprisoned in jail for a period not
to exceed ten days, or both such fine and imprisonment.
(d) (1) Any person who at any one time transports into the
state for their personal use, and not for resale, more than six and
seventy-five hundredths gallons of nonintoxicating beer, upon which
the West Virginia barrel tax has not been imposed, shall be guilty
of a misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed $100 and have all the untaxed nonintoxicating
beer in their possession at the time of the arrest confiscated, or
imprisoned for ten days in jail, or both fined and imprisoned.
(2) If the Congress of the United States repeals the mandate
established by the Surface Transportation Assistance Act of 1982
relating to national uniform drinking age of twenty-one as found in
section six of Public Law 98-363, or a court of competent
jurisdiction declares the provision to be unconstitutional or
otherwise invalid, it is the intent of the Legislature that the
provisions contained in this section and section eighteen of this
article which prohibit the sale, furnishing, giving, purchase or
ownership of nonintoxicating beer to or by a person who is less
than twenty-one years of age shall be null and void and the
provisions therein shall thereafter remain in effect and apply to
the sale, furnishing, giving, purchase or ownership of nonintoxicating beer to or by a person who is less than nineteen
years of age.
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities or any facility that provides care for
unmarried mothers and their children;
(2) "Child advocacy center" means a community-based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:
(A) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients;
(B) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services; prosecution; mental health; medical; victim advocacy; child
advocacy center;
(C) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices;
(D) Cultural competency and diversity: The child advocacy
center promotes policies, practices and procedures that are
culturally competent. Cultural competency is defined as the
capacity to function in more than one culture, requiring the
ability to appreciate, understand and interact with members of
diverse populations within the local community.
(E) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact-finding nature, and
coordinated to avoid duplicative interviewing;
(F) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to child advocacy center clients
as part of the team response, either at the child advocacy center
or through coordination and referral with other specialized medical
providers;
(G) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the child advocacy center or through coordination and
referral with other appropriate treatment providers;
(H) Victim support/advocacy: Victim support and advocacy are to be made available as part of the team response, either at the
child advocacy center or through coordination with other providers,
throughout the investigation and subsequent legal proceedings;
(I) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis;
(J) Case tracking: Child advocacy centers must develop and
implement a system for monitoring case progress and tracking case
outcomes for team components:
Provided, That a child advocacy
center may establish a safe exchange location for children and
families who have a parenting agreement or an order providing for
visitation or custody of the children that require a safe exchange
location;
(3) "Community based", when referring to a facility, program,
or service, means located near the juvenile's home or family and
involving community participation in planning, operation and
evaluation and which may include, but is not limited to, medical,
educational, vocational, social and psychological guidance,
training, special education, counseling, alcoholism and any
treatment and other rehabilitation services;
(4) "Court" means the circuit court of the county with
jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(5) "Custodian" means a person who has or shares actual physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(6) "Department" or "state department" means the State
Department of Health and Human Resources;
(7) "Division of Juvenile Services" means the division within
the Department of Military Affairs and Public Safety pursuant to
article five-e of this chapter;
(8) "Guardian" means a person who has care and custody of a
child as a result of any contract, agreement or legal proceeding;
(9) "Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime under
state law or a municipal ordinance if committed by an adult;
(10) "Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(11) "Referee" means a juvenile referee appointed pursuant to
section one, article five-a of this chapter, except that in any
county which does not have a juvenile referee, the judge or judges
of the circuit court may designate one or more magistrates of the
county to perform the functions and duties which may be performed by a referee under this chapter;
(12) "Secretary" means the Secretary of Health and Human
Resources;
(13) "Secure facility" means any public or private residential
facility which includes construction fixtures designed to
physically restrict the movements and activities of juveniles or
other individuals held in lawful custody in such facility;
(14) "Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the
movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community, but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents;
(15) "Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good cause;
or
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county or state
law regarding use of alcoholic beverages by minors;
(16) "Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to such
order and who received, before the issuance of such order, the full
due process rights guaranteed to such juvenile by the Constitutions
of the United States and the State of West Virginia.
NOTE: The purpose of this bill is to make §11-16-19 and
§49-1-4 consistent with prior amendments to the code which changed
the use of alcoholic beverages by minors from a status offense to
a juvenile delinquent offense.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.