FLOOR BOOK MEMORANDUM House Judiciary Committee
Comm. Sub. for S.B. 450
Prepared by: Robert Williams
(3/04/2014) Phone: 304-325-3215
email: robert.williams@wvhouse.gov
SPONSORS: Senators Walters, Blair, Carmichael, McCabe, Palumbo and Wells.
TITLE: Relating to sale and consumption of alcoholic liquors in certain outdoor dining areas
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DATE INTRODUCED: February 5, 2014.
CODE SECTIONS AFFECTED: W.Va. Code §60-1-5 (amend and reenact)
IDENTICAL/SIMILAR BILLS: None.
CHAIRMAN’S ANALYSIS: The purpose of this bill is to allow for the sale and consumption of alcoholic beverages in demarcated outdoor dining areas of restaurants and other establishments which are licensed to sell such beverages with its food.
This bill accomplishes that end by adding a proviso the statutory definition of “public place” to declare that an area which has been legally demarcated solely for the consumption of legal beverages and freshly prepared food, which adjoins a premises which is licensed to seel alcohol for consumption on the premises.
This juxtaposition is being placed into code to get around the longstanding constitutional provisions prohibiting the sale of “intoxicating liquors” in a saloon or other public place. Since “nonintoxicating beer” with an alcohol content of less than 12% by weight is not considered to be an “intoxicating liquor”, under those same constraints, beer is now served in those same areas under current laws and limitations.
FLOOR AMENDMENT
The pending floor amendment offered by Manchin, Fleischauer, Pasdon, Marchall, Barill, Reynolds, Skaff and Craig would allow the ABCA Commissioner to issue a special license to allow for the sale of wine at NCAA Division I college and university sports stadiums at a cost of $250 per license. The bill provides that the wine sales area must be closed to free and unrestricted entry by the general public.
The amendment would allow for the issuance of the special license, and includes an appropriate amendment to the definition of a public place which recognizes the parameters of this special license.
BACKGROUND AND RELATED CONSTITUTIONAL ISSUES:
The West Virginia Constitution, as amended in 1934 as West Virginia was emerging from prohibition, provides that any law permitting the manufacture and sale of intoxicating liquors within the state must forbid the sale of intoxicating liquors “in a saloon or other public place.”
By statute, public places were defined to mean any place, building or conveyance to which the public has or is permitted to have access, including hotel dining areas, restaurants, soda fountains, and any highway, street, lane, park or place of public resort or amusement.
Since nonintoxicating beer, which at was allowed at the same time to be sold in those same locations by licenses issued by the Tax Commissioner, non intoxicating beer could be sold in those same public locations, while alcoholic liquors could not.
As some of these constraints were lifted, and the Legislature wanted to allow restaurants, hotel restaurants and other locations serve alcoholic beverages to its customers, the Legislature created the category of a private club, and essentially provided that any establishment which has been licensed to sell alcoholic liquors for consumption of the premises as a private club is not considered to be a “public place” (even though the public freely enters and leaves the establishment). Private clubs have been authorized by statute since 1967. In 1986, the West Virginia legislature added a proviso to the definition of “public place” to essentially provide that any area which is qualified and licensed under the provisions of the chapter to sell alcoholic liquors for consumption on the premises as a private club is not considered to be within the definition of a “public area” for purposes of Chapter 60 of the West Virginia Code.
This bill represents the next logical progression to stretch the definition of “public place” to exclude the areas where the restaurant or club has established a demarcated outside dining area for its customers to eat and drink.
I. SUBSTANTIVE ANALYSIS
A. EXISTING LAW:
Private clubs are allowed by statute to sell alcoholic liquor for consumption on its premises. However, alcoholic liquor cannot be sold or drunk on the public streets or sidewalk.
Some restaurants have outside dining areas on its private property. Alcohol liquor may be sold on those portions of its premises under current law.
Recently, some restaurants have been allowed to established demarcated dining areas which effectively cordon off part of the public sidewalk for dining. Nonintoxicating beer can be served to diners in these areas, without violating the current statutory and licensed restrictions. However, the service of alcoholic liquors in these same dining areas is highly suspect or illegal under current laws.
B. THIS BILL:
This bill would get around that issue by declaring that such demarcated areas, which are extension of a licensed business’ designated service area for meals and beverages, will not be considered to be a “public place, for purposes of Chapter 60.
C. COMMITTEE AMENDMENT:
No recommended Committee Amendment
II. SECTION DIRECTORY:
III. FISCAL ANALYSIS: None.
IV. COMMENTS
A. CONSTITUTIONAL ISSUES: Article VI, §46 of the West Virignia Constitution provides as follows:
§46. The legislature shall by appropriate legislation regulate the manufacture and sale of intoxicating liquors within the limits of this State, and any law authorizing the sale of such liquors shall forbid and penalize the consumption and the sale thereof for consumption in a saloon or other public place.
B. GOVERNMENT AGENCIES AFFECTED: Alcoholic Beverage Control Commission.
C. RULE MAKING AUTHORITY: None.
D. COMMITTEE REFERENCE: Judiciary.
E. TITLE ANALYSIS: OK.
F. DRAFTING ISSUES OR OTHER COMMENTS: None.
G. EFFECTIVE DATE: 90 days from passage.