H. B. 4730
(By Delegate Cann (By Request))
[Introduced February 23, 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 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.
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:
CHAPTER 11. TAXATION.
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.
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
imprisoned in the county jail for not less than thirty days nor
more than six months, or by both fine and imprisonment in the
discretion of the court. 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.
§11-16-5a. Places deemed common and public nuisances;
abatement; conspiracy.
A place where nonintoxicating beer is manufactured, sold,
possess for sale, distributed, furnish or give 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 be
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 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 a entertainment cover charge. Strike-throughs indicate
language that would be stricken from the present law, and
underscoring indicates new language that would be added to §11-
16-5. Other articles addressed herein are completely new,
therefore strike-throughs and underscoring has been omitted.