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.