H. B. 4056
(By Delegate Amores)
[Introduced January 19, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §11-16-18 of the Code of West Virginia,
1931, as amended; to amend and reenact §17C-5-2 of said code;
to amend and reenact §60-3-22 of said code; to amend and
reenact §60-3A-25 of said code; to amend and reenact §60-6-9
of said code; to amend and reenact §60-7-12 of said code; and
to amend and reenact §60-8-20 of said code, all relating to
the issuance of orders of interdiction prohibiting the
purchase of alcoholic liquors, nonintoxicating beer and wine
by persons convicted of alcohol related offenses; issuance of
interdiction orders for a conviction of driving under the
influence of alcohol or controlled substances or drugs;
issuance of interdiction orders for a conviction of appearing
in a public place in an intoxicated condition; procedure for
the issuance of orders of interdiction; and unlawful sale to
persons who are known to be the subject of orders of interdiction.
Be it enacted by the Legislature of West Virginia:
That §11-16-18 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5-2 of said code be amended and
reenacted; that §60-3-22 of said code be amended and reenacted;
that §60-3A-25 of said code be amended and reenacted; that §60-6-9
of said code be amended and reenacted; that §60-7-12 of said code
be amended and reenacted; and that §60-8-20 of said code be amended
and reenacted, 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 the subject of an order of interdiction issued
pursuant to section two, article five, chapter seventeen-c and
section nine, article six, 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 the containers when
title is retained by the vendor: Provided, That a distributor may
accept an electronic transfer of funds if the transfer of funds is
initiated by an irrevocable payment order on the invoiced amount
for the nonintoxicating beer. The cost of the electronic fund
transfer shall be borne by the retailer and the distributor must
initiate the transfer no later than noon of one business day after the delivery;
(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 events: Provided, however, That no 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 or her 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 to possess a federal license, tax receipt or other permit entitling, authorizing or allowing 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 or her premises by enclosure, lattice, drapes or any means
which would prevent plain view of the patrons occupying the
premises. The interior of all licensed premises shall be
adequately lighted at all times: Provided, That provisions of this
subdivision do 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;
(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 a 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 is not
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 the private wine restaurant is authorized to 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 the
business is located: Provided, That no licensee may 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
provided in this article, to obtain employment with any retailer
within the period of one year from the date of the revocation, or
for any retailer to knowingly employ that person within the
specified 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 or her licensed premises;
(17) For any Class A licensee, his, her, its or their
servants, agents or employees, or for any licensee by or through
any 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 do not apply where a person under the age of eighteen
years is in or upon the premises in the immediate company of his or
her parent or parents, or where and while a person under the age of
eighteen years is in or upon the 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 the premises;
(18) For any distributor to sell, offer for sale, distribute
or deliver any nonintoxicating beer outside the territory assigned
to any distributor by the brewer or manufacturer of nonintoxicating
beer or to sell, offer for sale, distribute or deliver
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 is considered to prohibit sales of convenience between distributors licensed in this state wherein one distributor
sells, transfers or delivers to another distributor a particular
brand or brands for sale at wholesale; and
(19) For any licensee or any agent, servant or employee of any
licensee to knowingly violate any rule 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, 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 is guilty of a
misdemeanor and, upon conviction thereof, shall be punished for
each offense by a fine of not less than twenty-five nor more than
five hundred dollars, or confined in the county or regional jail
for not less than thirty days nor more than six months, or by both
fine fined and confinement confined. 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)(1) A Class B licensee that:
(A) Has installed a transaction scan device on its licensed premises; and
(B) Can demonstrate that it requires each employee, servant or
agent to verify the age of any individual to whom nonintoxicating
beer is sold, furnished or given away by the use of the transaction
device may not be subject to: (I) Any criminal penalties
whatsoever, including those set forth in subsection (b) of this
section; (ii) any administrative penalties from the commissioner;
or (iii) any civil liability whatsoever for the improper sale,
furnishing or giving away of nonintoxicating beer to an individual
who is less than twenty-one years of age by one of his or her
employees, servants or agents. Any agent, servant or employee who
has improperly sold, furnished or given away nonintoxicating beer
to an individual less than twenty-one years of age is subject to
the criminal penalties of subsection (b) of this section. Any
agent, servant or employee who has improperly sold, furnished or
given away nonintoxicating beer to an individual less than
twenty-one years of age is subject to termination from employment,
and the employer shall have no civil liability for the termination.
(2) For purposes of this section, a Class B licensee can
demonstrate that it requires each employee, servant or agent to
verify the age of any individual to whom nonintoxicating beer is
sold by providing evidence: (A) That it has developed a written
policy which requires each employee, servant or agent to verify the
age of each individual to whom nonintoxicating beer will be sold, furnished or given away; (B) that it has communicated this policy
to each employee, servant or agent; and (C) that it monitors the
actions of its employees, servants or agents regarding the sale,
furnishing or giving away of nonintoxicating beer and that it has
taken corrective action for any discovered noncompliance with this
policy.
(3) "Transaction scan" means the process by which a person
checks, by means of a transaction scan device, the age and identity
of the cardholder, and "transaction scan device" means any
commercial device or combination of devices used at a point of sale
that is capable of deciphering in an electronically readable format
the information enclosed on the magnetic strip or bar code of a
driver's license or other governmental identity card.
(d) Nothing in this article nor any rule or regulation of the
commissioner shall prevent or be considered to prohibit any
licensee from employing any person who is at least eighteen years
of age to serve in the 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 the person's duties may not include the sale or delivery of
nonintoxicating beer or alcoholic liquors:
Provided, however, That
the authorization to employ persons under the age of eighteen years
shall be clearly indicated on the licensee's license.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one
nor more than ten years and shall be fined not less than one
thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
the
county or regional jail for not less than ninety days nor more than
one year and shall be fined not less than five hundred dollars nor
more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in
the county or regional
jail for not less than one day nor more than one year, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred dollars nor
more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in
the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state, is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the
county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in
the county or regional jail for not more than
six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(g) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person who is an habitual user of
narcotic drugs or amphetamine or any derivative thereof, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
the county or regional jail for not more than six months and shall
be fined not less than one hundred dollars nor more than five
hundred dollars.
(h) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
for a first offense under this subsection, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, the person is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in
the county or regional jail for twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars. A person who is charged with a first offense under the provisions of this subsection may move for a continuance
of the proceedings, from time to time, to allow the person to
participate in the vehicle alcohol test and lock program as
provided
for in section three-a, article five-a of this chapter.
Upon successful completion of the program, the court shall dismiss
the charge against the person and expunge the person's record as it
relates to the alleged offense. In the event the person fails to
successfully complete the program, the court shall proceed to an
adjudication of the alleged offense. A motion for a continuance
under this subsection may not be construed as an admission or be
used as evidence.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (I)
of this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.
(I) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
the
county or regional jail for not less than two days nor more than
twelve months, which jail term is to include actual confinement of
not less than forty-eight hours, and shall be fined not less than
two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (I) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
the county or regional jail for not
less than six months nor more than one year, and the court may, in
its discretion, impose a fine of not less than one thousand dollars
nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (I) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years, and the court may, in its discretion, impose a fine of not
less than three thousand dollars nor more than five thousand
dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f) or (g) of this
section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of
subsection (a), (b), (c), (d) or (e) of this section, or any person
permitted to drive as described under subsection (f) or (g) of this
section, is or has been legally entitled to use alcohol, a
controlled substance or a drug does not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f) or (g) of this section.
(o) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be subject to
suspension or probation:
Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section. An order for home detention by
the court pursuant to the provisions of article eleven-b of said
chapter may be used as an alternative sentence to any period of
incarceration required by this section for a first or subsequent
offense:
Provided,
however, That for any period of home
incarceration ordered for a person convicted of second offense
under this section, electronic monitoring shall be required for no
fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days
notwithstanding the provisions of section five, article eleven-b,
chapter sixty-two of this code:
Provided further, That for any
period of home incarceration ordered for a person convicted of a
third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the
total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
(q)(1) Notwithstanding any other penalty prescribed under this
section, upon motion by a prosecuting attorney, proper notice, and
a hearing, the court may enter an order of interdiction prohibiting
the purchase of alcoholic liquors, nonintoxicating beer and wine by
a person convicted of any offense under this section.
(2) At the conclusion of a hearing held pursuant to this
subsection, the court shall make a finding upon a preponderance of
the evidence as to the defendant's continued excessive or
compulsive use of alcohol.
(3) An order of interdiction shall include the name, address,
and social security number of the person who is the subject of the
order.
(4) A court entering an order of interdiction may modify,
amend or vacate the order of interdiction as it deems proper.
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 A person who is the subject of an
order of interdiction issued pursuant to section two, article five,
chapter seventeen-c and section nine, article six, chapter sixty of
this code;
(3)
Intoxicated Visibly or noticeably 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.
(c) It shall be a defense to a violation of subdivision (2)
subsection (a) of this section if the seller has no knowledge that
the purchaser is the subject of an order of interdiction issued
pursuant to section two, article five, chapter seventeen-c and
section nine, article six, chapter sixty of this code.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-25. Certain acts of retail licensees prohibited; criminal
penalties.
(a) It is unlawful for any retail licensee, or agent or
employee thereof, on such retail licensee's premises to:
(1) Sell or offer for sale any liquor other than from the
original package or container;
(2) Sell, give away, or permit the sale of, gift of, or the
procurement of, any liquor, for or to any person under twenty-one
years of age;
(3) Sell, give away, or permit the sale of, gift of, or the
procurement of, any liquor, for or to any person visibly
intoxicated;
(4) Sell or offer for sale any liquor on any Sunday or other
than during the hours permitted for the sale of liquor by retail
licensees as provided under this article;
(5) Permit the consumption by any person of any liquor;
(6) With the intent to defraud, alter, change or misrepresent the quality, quantity or brand name of any liquor;
(7) Permit any person under eighteen years of age to sell,
furnish or give liquor to any other person;
(8) Purchase or otherwise obtain liquor in any manner or from
any source other than that specifically authorized in this article;
or
(9) Permit any person to break the seal on any package or
bottle of liquor;
or
(10) Sell, give away, or permit the sale of, gift of, or the
procurement of, any liquor to any person known to be the subject of
an order of interdiction issued pursuant to section two, article
five, chapter seventeen-c and section nine, article six, chapter
sixty of this code.
(b) Any person who violates any provision of this article,
except section twenty-four of this article, including, but not
limited to, any provision of this section, or any rule promulgated
by the board or the commissioner, or who makes any false statement
concerning any material fact, or who omits any material fact with
intent to deceive, in submitting an application for a retail
license or for a renewal of a retail license or in any hearing
concerning the suspension or revocation thereof, or who commits any
of the acts declared in this article to be unlawful, is guilty of
a misdemeanor, and
shall, upon conviction thereof, for each offense
be fined not less than one hundred or more than five thousand dollars, or
imprisoned confined in
the county jail for not less
than thirty days nor more than one year, or both fined and
imprisoned confined. Magistrates have concurrent jurisdiction with
the circuit courts for offenses under this article.
(c) Nothing in this article, or any rule of the board or
commissioner, prevents or prohibits any retail licensee from
employing any person who is at least eighteen years of age to serve
in any retail licensee's lawful employment at any retail outlet
operated by such retail licensee, or from having such person sell
or deliver liquor under the provisions of this article. With the
prior approval of the commissioner, a retail licensee may employ
persons at any retail outlet operated by such retail licensee who
are less than eighteen years of age but at least sixteen years of
age, but such persons' duties
shall may not include the sale or
delivery of liquor:
Provided, That the authorization to employ
such persons under the age of eighteen years shall be clearly
indicated on the retail license issued to any such retail licensee.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-9. Intoxication or drinking in public places; illegal
possession of alcoholic liquor; arrests by sheriffs or
their deputies for violation in their presence;
penalties.
(a) A person
shall may not:
(1) Appear in a public place in an intoxicated condition;
(2) Drink alcoholic liquor in a public place;
(3) Drink alcoholic liquor in a motor vehicle on any highway,
street, alley or in a public garage;
(4) Tender a drink of alcoholic liquor to another person in a
public place;
(5) Possess alcoholic liquor in the amount in excess of ten
gallons, in containers not bearing stamps or seals of the
commissioner, without having first obtained written authority from
the said commissioner therefor; or
(6) Possess any alcoholic liquor which was manufactured or
acquired in violation of the provisions of this chapter.
(b) Any law-enforcement officer may arrest without a warrant
and take the following actions against a person who, in his or her
presence, violates subdivision (1) of subsection (a) of this
section: (1) If there is some nonintoxicated person who will
accept responsibility for the intoxicated person, the officer may
issue the intoxicated person a citation specifying a date for
appearance before a judicial officer and release him or her to the
custody of the individual accepting responsibility:
Provided, That
the issuance of a citation shall be used whenever feasible; (2) if
it does not impose an undue burden on the officer, he or she may,
after issuance of such a citation, transport the individual to the
individual's present residence or arrange for such transportation;
(3) if the individual is incapacitated or the alternatives provided in subdivisions (1) and (2) of this subsection are not possible,
the officer shall transport or arrange for transportation to the
appropriate judicial officer as defined by section seventeen,
article eleven, chapter twenty-seven of this code; or (4) if the
individual is incapacitated and, in the law-enforcement officer's
judgment, is in need of acute medical attention, that officer shall
arrange for transportation by ambulance or otherwise to a hospital
emergency room. The officer shall accompany the individual until
he or she is discharged from the emergency room or admitted to the
hospital. If the individual is released from the emergency room,
the officer may proceed as described in subdivisions (1), (2) and
(3) of this subsection. If the individual is admitted to the
hospital, the officer shall issue a citation to the individual
specifying a date for appearance before a judicial officer.
(c) Upon presentment before the proper judicial officer, the
law-enforcement officer shall serve as the chief complaining
witness. The judicial officer must make a finding that there is
probative evidence that the individual may be guilty of the charge
of public intoxication. If such evidence is not presented, the
charge shall be dismissed and the individual released. If
sufficient evidence is presented, the judicial officer shall issue
a warrant and establish bail or issue a summons to the individual.
Once a warrant or summons has been issued, the following actions
may be taken: (1) If the individual is no longer incapacitated, he or she may be released; (2) if the individual is still
incapacitated but a nonintoxicated person is available to accept
responsibility for him or her, he or she may be released to the
responsible person; or (3) if the individual is still
incapacitated and no responsible person is available, the judicial
officer shall proceed under the provisions of article five or
six-a, chapter twenty-seven of this code.
(d) Any law-enforcement officer is hereby authorized and
empowered to arrest and hold in custody, without a warrant, until
complaint may be made before a judicial officer and a warrant or
summons issued, any person who in the presence of the
law-enforcement officer violates any one or more of subdivisions
(1) through (6), subsection (a) of this section:
Provided, That
the law-enforcement officer may use reasonable force to prevent
harm to himself or herself, the individual arrested or others in
carrying out the provisions of this section.
(e) Any person who violates subdivision (1), subsection (a) of
this section
shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be sentenced by a judicial officer in
accordance with the following options: (1) Upon first offense, a
fine of not less than five dollars nor more than one hundred
dollars. If the individual, prior to conviction, agrees to
voluntarily attend an alcohol education program of not more than
six hours duration at the nearest community mental health --mental retardation center, the judicial officer may delay sentencing until
the program is completed and upon completion may dismiss the
charges; (2) upon conviction for a second offense, a fine of not
less than five dollars nor more than one hundred dollars and not
more than sixty days in
the county or regional jail or completion
of not less than five hours of alcoholism counseling at the nearest
community mental health--mental retardation center; (3) upon third
and subsequent convictions, a fine of not less than five dollars
nor more than one hundred dollars and not less than five nor more
than sixty days in
county or regional jail or a fine of not less
than five dollars nor more than one hundred dollars and completion
of not less than five hours of alcoholism counseling at the nearest
community mental health--mental retardation center:
Provided, That
three convictions for public intoxication within the preceding six
months shall be considered evidence of alcoholism:
Provided,
however, That for the educational counseling programs described in
this subsection the community mental health --mental retardation
center may charge each participant its usual and customary fee and
shall certify in writing to the referring judicial officer the
completion or failure to complete the prescribed program for each
individual.
(f) A person charged with a violation of subdivision (1),
subsection (a) of this section who is an alcoholic shall be found
not guilty by reason of addiction and proper disposition made pursuant to articles five and six-a, chapter twenty-seven of this
code.
(g)(1) Notwithstanding any other penalty prescribed by
subsection (e) of this section, upon motion by a prosecuting
attorney, proper notice, and a hearing, the court may enter an
order of interdiction prohibiting the purchase of alcoholic
liquors, nonintoxicating beer and wine by a person convicted of a
second or subsequent offense under this section.
(2) At the conclusion of a hearing held pursuant to this
subsection, the court shall make a finding upon a preponderance of
the evidence as to the defendant's continued excessive or
compulsive use of alcohol.
(3) An order of interdiction shall include the name, address,
and social security number of the person who is the subject of the
order.
(4) A court entering an order of interdiction may modify,
amend or vacate the order of interdiction as it deems proper.
(g)(h) Any person who violates subdivision (2), subsection (a)
of this section
shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five nor more than
one hundred dollars; and upon a second or subsequent conviction
thereof, shall be fined not less than five nor more than one
hundred dollars, or confined in
the county or regional jail not
more than sixty days, or both
fined and confined.
(h) (I) Any person who violates subdivision (3), subsection
(a) of this section shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five nor more than
one hundred dollars, or confined in
the county or regional jail not
more than sixty days, or both
fined and confined.
(i)(j) Any person who violates subdivision (4) or (5),
subsection (a) of this section shall be guilty of a misdemeanor
and, upon his or her first conviction, shall be fined not less than
one hundred dollars nor more than five hundred dollars; and upon
conviction of second or subsequent offense, he or she shall be
guilty of a felony and shall be confined in
the penitentiary a
correctional facility of this state for a period of not less than
one year nor more than three years.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§60-7-12. Certain acts of licensee prohibited; criminal penalties.
(a) It is unlawful for any licensee, or agent, employee or
member thereof, on such licensee's premises to:
(1) Sell or offer for sale any alcoholic liquors other than
from the original package or container;
(2) Authorize or permit any disturbance of the peace;
obscene, lewd, immoral or improper entertainment, conduct or
practice, gambling or any slot machine, multiple coin console
machine, multiple coin console slot machine or device in the nature
of a slot machine;
(3) Sell, give away or permit the sale of, gift to or the
procurement of any nonintoxicating beer, wine or alcoholic liquors
for or to, or permit the consumption of nonintoxicating beer, wine
or alcoholic liquors on the licensee's premises, by any person less
than twenty-one years of age;
(4) Sell, give away or permit the sale of, gift to or the
procurement of any nonintoxicating beer, wine or alcoholic liquors,
for or to any person known to be deemed legally incompetent
, or who
is known to be the subject of an order of interdiction issued
pursuant to section two, article five, chapter seventeen-c and
section nine, article six, chapter sixty of this code, or for or to
any person who is physically incapacitated due to consumption of
nonintoxicating beer, wine or alcoholic liquor or the use of drugs;
(5) Sell, give or dispense nonintoxicating beer, wine or
alcoholic liquors in or on any licensed premises or in any rooms
directly connected therewith, between the hours of three o'clock
a.m. and one o'clock p.m. on any Sunday;
(6) Permit the consumption by, or serve to, on the licensed
premises any nonintoxicating beer, wine or alcoholic liquors,
covered by this article, to any person who is less than twenty-one
years of age;
(7) With the intent to defraud, alter, change or misrepresent
the quality, quantity or brand name of any alcoholic liquor;
(8) Sell or offer for sale any alcoholic liquor to any person who is not a duly elected or approved dues paying member in good
standing of said private club or a guest of such member;
(9) Sell, offer for sale, give away, facilitate the use of or
allow the use of carbon dioxide, cyclopropane, ethylene, helium or
nitrous oxide for purposes of human consumption except as
authorized by the commissioner;
(10)(A) Employ any person who is less than eighteen years of
age in a position where the primary responsibility for such
employment is to sell, furnish or give nonintoxicating beer, wine
or alcoholic liquors to any person;
(B) Employ any person who is between the ages of eighteen and
twenty-one who is not directly supervised by a person aged
twenty-one or over in a position where the primary responsibility
for such employment is to sell, furnish or give nonintoxicating
beer, wine or alcoholic liquors to any person; or
(11) Violate any reasonable rule of the commissioner.
(b) It is unlawful for any licensee to advertise in any news
media or other means, outside of the licensee's premises, the fact
that alcoholic liquors may be purchased thereat.
(c) Any person who violates any of the foregoing provisions is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than five hundred dollars nor more than one thousand
dollars, or
imprisoned confined in
the county jail for a period not
to exceed one year, or both fined and
imprisoned confined.
ARTICLE 8. SALES OF WINES.
§60-8-20. Unlawful acts generally.
It shall be unlawful:
(a) For a distributor to sell or deliver wine purchased or
acquired from any source other than a person registered under the
provisions of section six of this article or for a retailer to sell
or deliver wine purchased or acquired from any source other than a
licensed distributor or a farm winery as defined in section five-a,
article one of this chapter;
(b) Unless otherwise specifically provided by the provisions
of this article, for a licensee under this article to acquire,
transport, possess for sale or sell wine other than in the original
package;
(c) For a licensee, his or her servants, agents or employees
to sell, furnish or give wine to any person less than twenty-one
years of age,
or to a mental incompetent,
or to any person known to
be the subject of an order of interdiction issued pursuant to
section two, article five, chapter seventeen-c and section nine,
article six, chapter sixty of this code, or person who is
physically incapacitated due to the consumption of alcoholic liquor
or the use of drugs:
Provided, That the provisions of section
twenty-five-a, article three-a of this chapter shall apply to sales
of wine;
(d) For a licensee to permit a person who is less than eighteen years of age to sell, furnish or give wine to any person;
(e) For a distributor to sell or deliver any brand of wine
purchased or acquired from any source other than the primary source
of supply of the wine which granted the distributor the right to
sell the brand at wholesale. For the purposes of this article,
"primary source of supply" means the vintner of the wine, the
importer of a foreign wine who imports the wine into the United
States, the owner of a wine at the time it becomes a marketable
product, the bottler of a wine or an agent specifically authorized
by any of the above-enumerated persons to make a sale of the wine
to a West Virginia distributor:
Provided, That no retailer shall
sell or deliver wine purchased or acquired from any source other
than a distributor licensed in this state:
Provided, however, That
nothing herein is considered to prohibit sales of convenience
between distributors licensed in this state wherein one distributor
sells, transfers or delivers to another distributor a particular
brand or brands for sale at wholesale, of which brand or brands the
other distributor may be temporarily out of stock. The
commissioner shall promulgate rules necessary to carry out the
provision of this subsection;
(f) For a person to violate any reasonable rule or regulation
promulgated by the commissioner under this article;
(g) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be considered to prohibit any licensee from employing any person who is at least eighteen years
of age to serve in any licensee's lawful employment, including the
sale or delivery of wine under the provisions of 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 the person's duties may not include the sale or
delivery of nonintoxicating beer or alcoholic liquors:
Provided,
however, That the authorization to employ persons under the age of
eighteen years shall be clearly indicated on the licensee's
license.
NOTE: The purpose of this bill is permit courts to issue
orders of interdiction prohibiting the purchase of alcoholic
liquors, nonintoxicating beer and wine by persons convicted of
second offense driving under the influence of alcohol, controlled
substances or drugs or third offense public intoxication. The bill
would also make it a violation of law for retail liquor licensees
and vendors of alcoholic liquors, nonintoxicating beer and wine to
sell to a person known to be the subject of an order of
interdiction.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.