H. B. 2012
(By Delegate Cann (By Request))
[Introduced January 11, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §11-16-5 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
three new sections, designated as §11-16-5a, §11-16-5b and
§11-16-5c, all relating to the manufacture, sale, possession,
distribution, furnishing or giving away of nonintoxicating
beer contrary to law in unlicensed establishments; and
providing criminal and civil penalties.
Be it enacted by the Legislature of West Virginia:
That §11-16-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto three new sections, designated §11-16-5a, §11-16-5b and
§11-16-5c, all to read as follows:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-5. State license required; alcoholic content of beer
manufactured for sale without state.
No person
shall may manufacture, sell, possess for sale,
transport,
or distribute,
furnish or give away contrary to law,
nonintoxicating beer except in accordance with the provisions of
this article, and after first obtaining a state license therefor,
as provided in this article. Nothing contained in this article
shall prohibit prohibits any brewer located within the state from
manufacturing or transporting for sale without the state beer of an
alcoholic strength greater than that of nonintoxicating beer.
Any person who violates the provisions of this section is
guilty of a misdemeanor and, upon conviction, shall be fined not
less than twenty-five nor more than five hundred dollars, or
confined in jail for not less than thirty days nor more than six
months, or be both fined and confined, in the discretion of the
court. Magistrates 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.
§11-16-5a. Places deemed common and public nuisances; abatement;
conspiracy.
A place where nonintoxicating beer is manufactured, sold,
possessed for sale, distributed, furnished or given away contrary
to law is a common and public nuisance. Boats, cars (including
railroad and traction passenger cars operating in this state),
automobiles, wagons, water and aircraft, beasts of burden, or vehicles of any kind are places within the meaning of this section
and may be proceeded against under the provisions of section five-b
of this article. A person who maintains, or aids or abets or
knowingly is associated with others in maintaining such common and
public nuisance is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by a fine of not less than one hundred
nor more than five hundred dollars, or by confinement in jail not
less than sixty days nor more than six months for each offense, and
judgment shall be given that the nuisance be abated or closed as a
place for the manufacture, sale, possession for sale, distribution,
furnishing or giving away contrary to law of nonintoxicating beer,
as the court may determine.
If two or more persons conspire to maintain such common and
public nuisance or to manufacture, sell, possess for sale,
distribute, furnish or give away nonintoxicating beer in violation
of any of the provisions of this chapter, and one or more of the
persons do any act to effect the object of the conspiracy, each of
the parties to the conspiracy is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not less than
one hundred dollars nor more than five hundred dollars or by
confinement in jail for not less than one month nor more than six
months, or in the discretion of the court, by both such fine and
confinement.
§11-16-5b. Suits to abate nuisances; injunction.
The Alcohol Beverage Control Commissioner, the commissioner's
agents, the Attorney General, the prosecuting attorney or a citizen
of the county or municipality where a nuisance as defined in
section five-a of this article is located, may maintain a suit in
equity in the name of the state to abate and perpetually enjoin the
same. Courts of equity have jurisdiction of the suit. The
injunction may be granted at the commencement of the suit and no
bond is required. On the finding that the material allegations of
the complaint are true, the court or judge thereof in vacation
shall order the injunction for such period of time as it or he or
she may think proper, with the right to dissolve the injunction
upon the application of the owner of the place, if a proper case is
shown for dissolution.
The continuance of the injunction as provided in this section
may be ordered, although the place complained of may not at the
time of hearing be unlawfully used.
§11-16-5c. Search warrants.
If there is a complaint on oath or affirmation supported by
affidavit or affidavits setting forth the facts for the belief that
nonintoxicating beer is being manufactured, sold, possessed for
sale, distributed, furnished or given away in a particular house or
other place contrary to law, the magistrate or circuit court judge
thereof, if satisfied that there is probable cause for the belief,
shall issue a warrant to search the house or other place for nonintoxicating beer. The warrants, except as otherwise provided in
this section, shall be issued, directed and executed in accordance
with the laws of West Virginia pertaining to search warrants.
Warrants issued under this chapter for the search of any
automobile, boat, conveyance or vehicle, or for the search of any
trunk, grip or other article of baggage, for nonintoxicating beer,
may be executed in any part of the state where the same are
overtaken, and shall be made returnable before any magistrate or
circuit court judge in the county where the nonintoxicating beer
was transported or attempted to be transported contrary to law.
An officer charged with the execution of a warrant issued
under this section, may, whenever it is necessary, break open and
enter a house, or other place described in this section.
NOTE: The purpose of this bill is to allow the same kind of
public nuisance provisions with relation to nonintoxicating beer as
there currently exist for alcoholic liquor under W.Va. Code
§60-6-16, §60-6-17 and §60-6-18. The bill will allow counties and
the Alcohol Beverage Control Commissioner another enforcement tool
to curb proliferation of unlicensed establishments that "give away"
nonintoxicating beer upon the payment of an entertainment cover
charge.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§11-16-5a,5b and 5c are new; therefore, strike-throughs and
underscoring have been omitted.
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