H. B. 2138
(By Delegates Ennis and Perry)
[Introduced February 11, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §60-7-12 of the Code of West Virginia,
1931, as amended, relating to the creation of an affirmative
defense for certain civil and criminal actions arising from
the sale of alcoholic liquors, wine and nonintoxicating beer
by licensed private clubs to persons less than the age of 21
whose age is verified by use of scanner technology.
Be it enacted by the Legislature of West Virginia:
That §60-7-12 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
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 21 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 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 3:00 a.m. and
1:00 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 21 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 18 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 18 and 21 who
is not directly supervised by a person aged 21 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 $500.00 nor more than $1,000.00, or
imprisoned
confined in
the county jail for a period not to exceed one year, or
both fined and
imprisoned confined.
(d) In the absence of fraud, malice, bad faith, or wanton or
reckless action, it is a defense to a violation of subdivision (3)
or subdivision (6) of subsection (a) of this section, if the
licensee, agent, or employee shows that:
(1) Scanner technology as defined in and authorized by section
twenty-two, article two of this chapter was used to verify the age
of the purchaser at the time of the purchase;
(2) Scanner technology indicated that the driver's license or
identification card was valid;
(3) The driver's license or identification card stated that
the purchaser was at least 21 years of age; and
(4) The purchaser appeared to match the physical description
or picture on the driver's license or identification card.
NOTE: The purpose of this bill is to provide a defense to
licensees civilly or criminally charged with selling alcoholic
liquors, nonintoxicating beer or wine to minors when the licensees
have responsibly used scanner technology to verify age.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.