H. B. 4670
(By Delegate Miley)
[Introduced February 21, 2006; 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 §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.
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; criminal
penalties.
No person shall 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 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.
A person who violates the provisions of this section is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than twenty-five nor more than five hundred dollars, or
imprisoned in jail for not less than six months, or be both fined
and imprisoned at the discretion of the court. Magistrates shall
have concurrent jurisdiction with the circuit courts and any other
court 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 shall be deemed 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 shall be deemed 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 shall maintain, or
shall aid or abet or knowingly be 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 such 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 such
persons do any act to effect the object of the conspiracy, each of
the parties to such 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
imprisonment.
§11-16-5b. Suits to abate nuisances; injunction.
The Alcohol Beverage Control Commission, its 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 shall have jurisdiction thereof. The injunction
may be granted at the commencement of the suit and no bond shall be
required. On the finding that the material allegations of the bill
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 such 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 be complaint on oath or affirmation supported by
affidavit or affidavits setting forth the facts for such 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 a probable cause
for such belief, shall issue a warrant to search such house or other place for nonintoxicating beer. Such warrants, except as
herein otherwise provided, 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 were 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 herein described.
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.V. Code
§60-6-16, §60-6-17 and §60-6-18. This proposed 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, §11-16-5b and §11-16-5c are completely new,
therefore, strike-throughs and underscoring have been omitted.
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