Senate Bill No. 463

(By Senator Chafin)

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[Introduced February 20, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section eighteen, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section eight, article six, chapter sixty of said code, all relating to defining "habitual drunkard"; providing that notice and opportunity for a hearing be required before a person is declared to be a habitual drunkard; judges of circuit courts to adjudicate persons as habitual drunkards; physician's affidavit required to accompany petition to declare a person a habitual drunkard; burden of proof required for adjudication; and providing notice to establishments that sell alcoholic beverages of the names of persons who are habitual drunkards.

Be it enacted by the Legislature of West Virginia:
That section eighteen, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section twenty- two, article three, chapter sixty of said code be amended and reeancted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.

§11-16-18. Unlawful acts of licensees; criminal penalties.

(a) It shall be unlawful:
(1) For any licensee, his, her, its or their servants, agents or employees to sell, give or dispense, or any individual to drink or consume, in or on any licensed premises or in any rooms directly connected therewith, nonintoxicating beer or cooler on weekdays between the hours of two o'clock a.m. and seven o'clock a.m., or between the hours of two o'clock a.m. and one o'clock p.m., on any Sunday, except in private clubs licensed under the provisions of article seven, chapter sixty of this code, where the hours shall conform with the hours of sale of alcoholic liquors;
(2) For any licensee, his, her, its or their servants, agents or employees, to sell, furnish or give any nonintoxicating beer as defined in this article to any person visibly or noticeably intoxicated, or to any person known to be insane or known to be a habitual drunkard as defined in section twenty-two, article three, chapter sixty of this code;
(3) For any licensee, his, her, its or their servants, agents or employees, to sell, furnish or give any nonintoxicating beer as defined in this article to any person who is less than twenty-one years of age;
(4) For any distributor to sell or offer to sell, or any retailer to purchase or receive, any nonintoxicating beer as defined in this article, except for cash; and no right of action shall exist to collect any claims for credit extended contrary to the provisions of this subdivision. Nothing herein contained shall prohibit a licensee from crediting to a purchaser the actual price charged for packages or containers returned by the original purchaser as a credit on any sale, or from refunding to any purchaser the amount paid or deposited for such the containers when title is retained by the vendor;
(5) For any brewer or distributor or brewpub or his, her, its or their agents, to transport or deliver nonintoxicating beer as defined in this article to any retail licensee on Sunday;
(6) For any brewer or distributor to give, furnish, rent or sell any equipment, fixtures, signs or supplies directly or indirectly or through a subsidiary or affiliate to any licensee engaged in selling products of the brewing industry at retail, or to offer any prize, premium, gift or other similar inducement, except advertising matter of nominal value, to either trade or consumer buyers: Provided, That a distributor may offer, for sale or rent, tanks of carbonic gas. Nothing herein contained shall prohibit a brewer from sponsoring any professional or amateur athletic event or from providing prizes or awards for participants and winners in any such events: Provided, however, That no such event shall be sponsored which permits actual participation by athletes or other persons who are minors, unless specifically authorized by the commissioner;
(7) For any licensee to permit in his premises any lewd, immoral or improper entertainment, conduct or practice;
(8) For any licensee except the holder of a license to operate a private club issued under the provisions of article seven, chapter sixty of this code, or a holder of a license or a private wine restaurant issued under the provisions of article eight of said chapter sixty, to possess a federal license, tax receipt or other permit entitling, authorizing or allowing such the licensee to sell liquor or alcoholic drinks other than nonintoxicating beer;
(9) For any licensee to obstruct the view of the interior of his premises by enclosure, lattice, drapes or any means which would prevent plain view of the patrons occupying such the premises. The interior of all licensed premises shall be adequately lighted at all times: Provided, That provisions of this subdivision shall not apply to the premises of a Class B retailer, the premises of a private club licensed under the provisions of article seven, chapter sixty of this code, or the premises of a private wine restaurant licensed under the provisions of article eight of said chapter sixty;
(10) For any licensee to manufacture, import, sell, trade, barter, possess or acquiesce in the sale, possession or consumption of any alcoholic liquors on the premises covered by such license or on premises directly or indirectly used in connection therewith: Provided, That the prohibition contained in this subdivision with respect to the selling or possessing or to the acquiescence in the sale, possession or consumption of alcoholic liquors shall not be applicable with respect to the holder of a license to operate a private club issued under the provisions of article seven, chapter sixty of this code, nor shall the prohibition be applicable to a private wine restaurant licensed under the provisions of article eight of said chapter insofar as such private wine restaurant is authorized serve wine;
(11) For any retail licensee to sell or dispense nonintoxicating beer, as defined in this article, purchased or acquired from any source other than a distributor, brewer or manufacturer licensed under the laws of this state;
(12) For any licensee to permit loud, boisterous or disorderly conduct of any kind upon his or her premises or to permit the use of loud musical instruments if either or any of the same may disturb the peace and quietude of the community wherein such the business is located: Provided, That no licensee shall have in connection with his or her place of business any loudspeaker located on the outside of the licensed premises that broadcasts or carries music of any kind;
(13) For any person whose license has been revoked, as in this article provided, to obtain employment with any retailer within the period of one year from the date of such the revocation, or for any retailer to employ knowingly any such person within such this time;
(14) For any distributor to sell, possess for sale, transport or distribute nonintoxicating beer except in the original container;
(15) For any licensee to knowingly permit any act to be done upon the licensed premises, the commission of which constitutes a crime under the laws of this state;
(16) For any Class B retailer to permit the consumption of nonintoxicating beer upon his licensed premises;
(17) For any Class A licensee, his, her, its or their servants, agents or employees, or for any licensee by or through such servants, agents or employees, to allow, suffer or permit any person less than eighteen years of age to loiter in or upon any licensed premises; except, however, that the provisions of this subdivision shall not apply where such the person under the age of eighteen years is in or upon such premises in the immediate company of his or her parent or parents, or where and while such person under the age of eighteen years is in or upon such premises for the purpose of and actually making a lawful purchase of any items or commodities therein sold, or for the purchase of and actually receiving any lawful service therein rendered, including the consumption of any item of food, drink or soft drink therein lawfully prepared and served or sold for consumption on such the premises;
(18) For any distributor to sell, offer for sale, distribute or deliver any nonintoxicating beer outside the territory assigned to such the distributor by the brewer or manufacturer of such nonintoxicating beer or to sell, offer for sale, distribute or deliver any such nonintoxicating beer to any retailer whose principal place of business or licensed premises is within the assigned territory of another distributor of such nonintoxicating beer: Provided, That nothing herein shall be deemed to prohibit sales of convenience between distributors licensed in this state wherein one such distributor sells, transfers or delivers to another such distributor a particular brand or brands for sale at wholesale; and
(19) For any licensee or any agent, servant or employee of any such licensee to knowingly violate any rule or regulation lawfully promulgated by the commissioner in accordance with the provisions of chapter twenty-nine-a of this code.
(b) Any person who violates any provision of this article including, but not limited to, any provision of this section, or any rule, regulation, or order lawfully promulgated by the commissioner, or who makes any false statement concerning any material fact in submitting application for license or for a renewal of a license or in any hearing concerning the revocation thereof, or who commits any of the acts herein declared to be unlawful, shall be guilty of a misdemeanor, and shall be punished for each offense by a fine of not less than twenty-five nor more than five hundred dollars, or imprisoned in the county jail for not less than thirty days or more than six months, or by both fine and imprisonment in the discretion of the court. Magistrates shall have concurrent jurisdiction with the circuit court, and any other courts having criminal jurisdiction in their county, for the trial of all misdemeanors arising under this article.
(c) Nothing in this article nor any rule or regulation of the commissioner shall prevent or be deemed to prohibit any licensee from employing any person who is at least eighteen years of age to serve in such licensee's lawful employ, including the sale or delivery of nonintoxicating beer as defined in this article. With the prior approval of the commissioner, 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, may employ persons who are less than eighteen years of age but at least sixteen years of age: Provided, That such the person's duties shall not include the sale or delivery of nonintoxicating beer or alcoholic liquors: Provided, however, That the authorization to employ such the persons under the age of eighteen years shall be clearly indicated on the licensee's license.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 3. SALES BY COMMISSIONER.

§60-3-22. Sales to certain persons prohibited.

(a) Alcoholic liquors and nonintoxicating beer as defined in section three, article sixteen, chapter eleven of this code shall not be sold to a person who is:
(1) Less than twenty-one years of age;
(2) An habitual drunkard: Provided, That the term "habitual drunkard" means a person who has been adjudicated as such by a judge of a circuit court in this state, because, the person is chronically and psychologically dependent on the consumption of alcoholic beverages in order to attain or maintain a state of physical and mental intoxication as the result of excessive and compulsive use of alcoholic beverages, including, but not limited to, beer: Provided, however, That no person shall be adjudicated as a habitual drunkard unless the person is provided with notice and the opportunity to be heard in opposition to the intended adjudication: Provided further, That any petitioner who seeks an adjudication under this provision shall bear the burden of clearly and convincingly proving that the respondent for which adjudication is sought is deserving of adjudication: And provided further, That any petition brought pursuant to this subsection shall be accompanied by a licensed and practicing medical or osteopathic physician's affidavit that the respondent's medical and psychological condition is consistent with the meaning of the term "habitual drunkard" prescribed herein: And provided further, That any physician whose affidavit accompanies a petition brought under the provisions of this subsection shall be subject to cross-examination, upon a request for a hearing as provided for herein: And provided further, That it shall be the responsibility of the prosecuting attorney of the county wherein any person, subject to the provisions of this subsection, is adjudicated as a habitual drunkard, to provide sufficient notice of the identity of the person so adjudicated, to any person or establishment which, in the discretion of the prosecuting attorney, is subject to the prohibitions set forth in this section. For the purpose of this subsection, "sufficient notice" means written notice personally served or sent by certified mail, return receipt requested, to the person or establishment subject to the prohibitions of this section: And provided further, That, in the event any person adjudicated as a habitual drunkard purchases liquor from any person or establishment after the adjudication, the prosecuting attorney of the county wherein the person was so adjudicated, shall cause to be published in a newspaper of general circulation in the county wherein the person or establishment is situated, as well as in the county wherein the person so adjudicated resides, the name of the person and the social security number assigned to the person.
(3) Intoxicated;
(4) Addicted to the use of any controlled substance as defined by any of the provisions of chapter sixty-a of this code; or
(5) Mentally incompetent.
(b) It shall be a defense to a violation of subdivision (1), subsection (a) of this section if the seller shows that the purchaser:
(1) Produced written evidence which showed his or her age to be at least the required age for purchase and which bore a physical description of the person named on the writing which reasonably described the purchaser; or
(2) Produced evidence of other facts that reasonably indicated at the time of sale that the purchaser was at least the required age.







NOTE: The purpose of this bill is to provide a definition to the term "habitual drunkard" as such term is used in the code relative to the prohibition to sell alcoholic beverages. The bill additionally provides for the adjudication of persons as habitual drunkards after the provision of notice of the intention to seek such adjudication and the opportunity for a hearing in order to contest such intention. The bill further provides that a burden of proof of "clear and convincing" is required before a person can be adjudicated as a habitual drunkard and that minimum requirements to bring a petition intended to adjudicate a person as a habitual drunkard requires the attachment of a physician's affidavit in support of the petition. Finally, the bill provides for notice to persons and establishments who sell alcoholic beverages of the identity of persons adjudicated as habitual drunkards.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.