H. B. 2094
(By Delegate Schadler)
[Introduced February 14, 2001
; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact section five, article twelve, chapter
eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section
twelve, article seven, chapter sixty of said code, all
relating to allowing municipalities to regulate by ordinance
the hours of sale and dispensing of nonintoxicating beer, wine
and alcoholic liquors by holders of a license to operate a
private club; and providing that such ordinances do not allow
these sales during periods of time prohibited by rules of the
alcohol beverage control commissioner.
Be it enacted by the Legislature of West Virginia:
That section five, article twelve, chapter eight of the code
of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section twelve, article seven,
chapter sixty of said code be amended and reenacted, all to read as
follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND
MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST
MUNICIPALITIES.
PART III. GENERAL POWERS OF MUNICIPALITIES
AND GOVERNING BODIES.
§8-12-5. General powers of every municipality and the governing
body thereof.
In addition to the powers and authority granted by: (i) The
constitution of this state; (ii) other provisions of this chapter;
(iii) other general law; and (iv) any charter, and to the extent
not inconsistent or in conflict with any of the foregoing except
special legislative charters, every municipality and the governing
body thereof
shall have has the plenary power and authority therein
by ordinance or resolution, as the case may require, and by
appropriate action based thereon:
(1) To lay off, establish, construct, open, alter, curb,
recurb, pave or repave and keep in good repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways,
sidewalks, drains and gutters, for the use of the public, and to
improve and light the same, and have them kept free from
obstructions on or over them which have not been authorized
pursuant to the succeeding provisions of this subdivision (1); and,
subject to such terms and conditions as the governing body shall
prescribe, to permit, without in any way limiting the power and
authority granted by the provisions of article sixteen of this
chapter, any person to construct and maintain a passageway,
building or other structure overhanging or crossing the airspace
above a public street, avenue, road, alley, way, sidewalk or
crosswalk, but before any such permission for any person to
construct and maintain a passageway, building or other structure
overhanging or crossing any such airspace is granted, a public
hearing thereon shall be held by the governing body after
publication of a notice of the date, time, place and purpose of
such public hearing has been published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such
publication shall be the municipality:
Provided, That any such
permit so granted shall automatically cease and terminate in the event of abandonment and nonuse thereof for the purposes intended
for a period of ninety days, and all rights therein or thereto
shall revert to such municipality for its use and benefit;
(2) To provide for the opening and excavation of streets,
avenues, roads, alleys, ways, sidewalks, crosswalks and public
places belonging to the municipality and regulate the conditions
under which any such opening may be made;
(3) To prevent by proper penalties the throwing, depositing or
permitting to remain on any street, avenue, road, alley, way,
sidewalk, square or other public place any glass, scrap iron,
nails, tacks, wire, other litter, or any offensive matter or
anything likely to injure the feet of individuals or animals or the
tires of vehicles;
(4) To regulate the use of streets, avenues, roads, alleys,
ways, sidewalks, crosswalks and public places belonging to the
municipality;
(5) To regulate the width of streets, avenues and roads, and,
subject to the provisions of article eighteen of this chapter, to
order the sidewalks, footways and crosswalks to be paved, repaved,
curbed or recurbed and kept in good order, free and clean, by the
owners or occupants thereof or of the real property next adjacent thereto;
(6) To establish, construct, alter, operate and maintain, or
discontinue, bridges, tunnels and ferries and approaches thereto;
(7) To provide for the construction and maintenance of water
drains, the drainage of swamps or marshlands and drainage systems;
(8) To provide for the construction, maintenance and covering
over of watercourses;
(9) To control and administer the waterfront and waterways of
the municipality, and to acquire, establish, construct, operate and
maintain and regulate flood control works, wharves and public
landings, warehouses and all adjuncts and facilities for navigation
and commerce and the utilization of the waterfront and waterways
and adjacent property;
(10) To prohibit the accumulation and require the disposal of
garbage, refuse, debris, wastes, ashes, trash and other similar
accumulations whether on private or public property;
(11) To construct, establish, acquire, equip, maintain and
operate incinerator plants and equipment and all other facilities
for the efficient removal and destruction of garbage, refuse,
wastes, ashes, trash and other similar matters;
(12) To regulate or prohibit the purchase or sale of articles intended for human use or consumption which are unfit for such use
or consumption, or which may be contaminated or otherwise
unsanitary;
(13) To prevent injury or annoyance to the public or
individuals from anything dangerous, offensive or unwholesome;
(14) To regulate the keeping of gunpowder and other
combustibles;
(15) To make regulations guarding against danger or damage by
fire;
(16) To arrest, convict and punish any individual for carrying
about his
or her person any revolver or other pistol, dirk, bowie
knife, razor, slingshot, billy, metallic or other false knuckles,
or any other dangerous or other deadly weapon of like kind or
character;
(17) To arrest, convict and punish any person for importing,
printing, publishing, selling or distributing any pornographic
publications;
(18) To arrest, convict and punish any person for keeping a
house of ill fame, or for letting to another person any house or
other building for the purpose of being used or kept as a house of
ill fame, or for knowingly permitting any house owned by him
or her or under his
or her control to be kept or used as a house of ill
fame, or for loafing, boarding or loitering in a house of ill fame,
or frequenting same;
(19) To prevent and suppress conduct and practices which are
immoral, disorderly, lewd, obscene and indecent;
(20) To prevent the illegal sale of intoxicating liquors,
drinks, mixtures and preparations;
(21) To arrest, convict and punish any individual for driving
or operating a motor vehicle while intoxicated or under the
influence of liquor, drugs or narcotics;
(22) To arrest, convict and punish any person for gambling or
keeping any gaming tables, commonly called "A, B, C," or "E, O,"
table or faro bank or keno table, or table of like kind, under any
denomination, whether the gaming table be played with cards, dice
or otherwise, or any person who shall be a partner or concerned in
interest, in keeping or exhibiting such table or bank, or keeping
or maintaining any gaming house or place, or betting or gambling
for money or anything of value;
(23) To provide for the elimination of hazards to public
health and safety and to abate or cause to be abated anything which
in the opinion of a majority of the governing body is a public nuisance;
(24) To license, or for good cause to refuse to license in a
particular case, or in its discretion to prohibit in all cases, the
operation of pool and billiard rooms and the maintaining for hire
of pool and billiard tables notwithstanding the general law as to
state licenses for any such business and the provisions of section
four, article thirteen of this chapter; and when the municipality,
in the exercise of its discretion,
shall have has refused to grant
a license to operate a pool or billiard room, mandamus
shall does
not lie to compel such municipality to grant
such the license
unless it
shall clearly
appear appears that the refusal of the
municipality to grant
such the license is discriminatory or
arbitrary; and in the event that the municipality determines to
license any such business, the municipality
shall have has plenary
power and authority, and it
shall be is the duty of its governing
body to make and enforce reasonable ordinances regulating the
licensing and operation of such businesses;
(25) To protect places of divine worship and to preserve peace
and order in and about the premises where held;
(26) To regulate or prohibit the keeping of animals or fowls
and to provide for the impounding, sale or destruction of animals or fowls kept contrary to law or found running at large;
(27) To arrest, convict and punish any person for cruelly,
unnecessarily or needlessly beating, torturing, mutilating, killing
or overloading or overdriving, or willfully depriving of necessary
sustenance, any domestic animal;
(28) To provide for the regular building of houses or other
structures, for the making of division fences by the owners of
adjacent premises and for the drainage of lots by proper drains and
ditches;
(29) To provide for the protection and conservation of shade
or ornamental trees, whether on public or private property, and for
the removal of trees or limbs of trees in a dangerous condition;
(30) To prohibit with or without zoning the location of
occupied house trailers or mobile homes in certain residential
areas;
(31) To regulate the location and placing of signs,
billboards, posters, and similar advertising;
(32) To erect, establish, construct, acquire, improve,
maintain and operate a gas system, a waterworks system, an electric
system, or sewer system and sewage treatment and disposal system,
or any combination of the foregoing (subject to all of the pertinent provisions of articles nineteen and twenty of this
chapter and particularly to the limitations or qualifications on
the right of eminent domain set forth in said articles nineteen and
twenty), within or without the corporate limits of the
municipality, except that the municipality
shall may not erect any
such system partly without the corporate limits of the municipality
to serve persons already obtaining service from an existing system
of the character proposed, and where
such the system is by the
municipality erected, or has heretofore been so erected, partly
within and partly without the corporate limits of the municipality,
the municipality
shall have has the right to lay and collect
charges for service rendered to those served within and those
served without the corporate limits of the municipality, and to
prevent injury to
such the system or the pollution of the water
thereof and its maintenance in a healthful condition for public use
within the corporate limits of the municipality;
(33) To acquire watersheds, water and riparian rights, plant
sites, rights-of-way and any and all other property and
appurtenances necessary, appropriate, useful, convenient or
incidental to any such system, waterworks or sewage treatment and
disposal works, as aforesaid, subject to all of the pertinent provisions of articles nineteen and twenty of this chapter;
(34) To establish, construct, acquire, maintain and operate
and regulate markets, and prescribe the time of holding the same;
(35) To regulate and provide for the weighing of articles sold
or for sale;
(36) To establish, construct, acquire, maintain and operate
public buildings, municipal buildings or city halls, auditoriums,
arenas, jails, juvenile detention centers or homes, motor vehicle
parking lots, or any other public works;
(37) To establish, construct, acquire, provide, equip,
maintain and operate recreational parks, playgrounds and other
recreational facilities for public use, and in this connection also
to proceed in accordance with the provisions of article two,
chapter ten of this code;
(38) To establish, construct, acquire, maintain and operate a
public library or museum or both for public use;
(39) To provide for the appointment and financial support of
a library board in accordance with the provisions of article one,
chapter ten of this code;
(40) To establish and maintain a public health unit in
accordance with the provisions of section two, article two, chapter sixteen of this code, which unit
shall must exercise its powers and
perform its duties subject to the supervision and control of the
West Virginia board of health and state department of health;
(41) To establish, construct, acquire, maintain and operate
hospitals, sanitaria and dispensaries;
(42) To acquire, by purchase, condemnation or otherwise, land
within or near the corporate limits of the municipality for
providing and maintaining proper places for the burial of the dead
and to maintain and operate the same and regulate interments
therein upon such terms and conditions as to price and otherwise as
may be determined by the governing body, and, in order to carry
into effect such authority the governing body may acquire any
cemetery or cemeteries already established;
(43) To exercise general police jurisdiction over any
territory without the corporate limits owned by the municipality or
over which it has a right-of-way;
(44) To protect and promote the public morals, safety, health,
welfare and good order;
(45) To adopt rules for the transaction of business and the
government and regulation of its governing body;
(46) Except as otherwise provided, to require and take such bonds from such officers, when deemed necessary, payable to the
municipality, in its corporate name, with such sureties and in such
penalty as the governing body may see fit, conditioned upon the
faithful discharge of their duties;
(47) To require and take from such employees and contractors
such bonds in such penalty, with such sureties and with such
conditions, as the governing body
may see sees fit;
(48) To investigate and inquire into all matters of concern to
the municipality or its inhabitants;
(49) To establish, construct, require, maintain and operate
such instrumentalities, other than free public schools, for the
instruction, enlightenment, improvement, entertainment, recreation
and welfare of the municipality's inhabitants as the governing body
may deem considers necessary or appropriate for the public
interest;
(50) To create, maintain and operate a system for the
enumeration, identification and registration, or either, of the
inhabitants of the municipality and visitors thereto, or such
classes thereof as
may be deemed is considered advisable;
(51) To appropriate and expend not exceeding twenty-five cents
per capita per annum for advertising the municipality and the entertainment of visitors;
(52) To conduct programs to improve community relations and
public relations generally and to expend municipal revenue for
such
those purposes;
(53) To reimburse applicants for employment by the
municipality for travel and other reasonable and necessary expenses
actually incurred by
such the applicants in traveling to and from
such the municipality to be interviewed;
(54) To provide revenue for the municipality and appropriate
the same to its expenses;
(55) To create and maintain an employee benefits fund, which
shall may not exceed one tenth of one percent of the annual payroll
budget for general employee benefits and which shall be set up for
the purpose of stimulating and encouraging employees to develop and
implement cost-saving ideas and programs, and to expend moneys from
such the fund for such purposes;
(56) To enter into reciprocal agreements with governmental
subdivisions or agencies of any state sharing a common border for
the protection of people and property from fire and for emergency
medical services and for the reciprocal use of equipment and
personnel for such purposes;
and
(57) To regulate the hours during which a private club
licensee licensed pursuant to the provisions of article seven,
chapter sixty of this code may sell, give or dispense
nonintoxicating beer, wine or alcoholic liquors in or on any
licensed premises or in any rooms directly connected therewith:
Provided, That the regulation may not allow the licensees to sell,
give or dispense nonintoxicating beer, wine, or alcoholic liquors
during periods of time prohibited by rules promulgated pursuant to
section ten, article seven, chapter sixty of this code; and
(57) (58) To provide penalties for the offenses and violations
of law mentioned in this section, subject to the provisions of
section one, article eleven of this chapter, and
such the penalties
shall may not exceed any penalties provided in this chapter and
chapter sixty-one of this code for like offenses and violations.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
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 considered 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 three o'clock
a.m. and one o'clock p.m. on any Sunday
or during any periods of
time proscribed by any municipal ordinance of any municipality in which the licensee may be located;
(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 the private club or a guest of
such the 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 in the county
or regional jail for a period
not to exceed one year, or both fined and imprisoned.
NOTE: The purpose of this bill is to allow municipalities to
regulate the hours of operation of private liquor clubs by
ordinance. However, the regulation may not allow hours of
operation which are in conflict with hours of prohibited operation
set by rule by the alcoholic beverage control commissioner.
Strike-throughs indicate language that would be stricken from
present law, and underscoring indicates new language that would be
added.
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