Senate Bill No. 718
(By Senators Wooton, Burnette, Hunter, Kessler,
Mitchell, Redd, Ross, Rowe and Deem)
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[Originating in the Committee on the Judiciary;
reported February 25, 2002.]
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A BILL to amend and reenact section four-a, article twelve, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section eighteen,
article sixteen of said chapter; to amend and reenact sections
two and seven, article nine-a, chapter sixteen of said code;
to amend article three-a, chapter sixty of said code by adding
thereto a new section, designated section twenty-five-a; and
to amend and reenact section twenty, article eight of said
chapter, all relating to the sale of tobacco products,
alcohol, wine and beer to minors; providing that registration
for license to sell tobacco products set forth each location
of sales; expanding types of tobacco products subject to
license requirements; modifying tobacco sales penalties; mandating carding of all purchasers of tobacco products,
alcohol, wine and beer of persons under the age of twenty-
seven; authorizing assessment of enforcement processing fees
against retailers for failure to card purchasers of tobacco
products, beer, wine or alcohol; limiting the use of
information derived from the use of transaction scan devices;
requiring that notification of convictions be given to
commissioner of alcohol beverage control administration;
authorizing the commissioner of the alcohol beverage control
administration and the state tax commissioner to propose
legislative rules and emergency rules; creating absolute
defenses for criminal and enforcement actions based on the
unlawful sale of alcohol, beer, wine and tobacco products;
providing for deposits of enforcement processing fees; and
defining terms.
Be it enacted by the Legislature of West Virginia:
That section four-a, article twelve, chapter eleven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section eighteen, article
sixteen of said chapter be amended and reenacted; that sections two
and seven, article nine-a, chapter sixteen of said code be amended
and reenacted; that article three-a, chapter sixty of said code be
amended by adding thereto a new section, designated section twenty-
five-a; and that section twenty, article eight of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-4a. Sellers of cigarettes, tobacco products or cigarette
wrappers required to be licensed; business registration
certificate is license; criminal penalties.
(a) For registration years beginning on or after the first day of
July, two thousand, each person who sells cigarettes, or other
tobacco products or cigarette wrappers at wholesale or retail shall
apply for and receive a license to sell cigarettes or other tobacco
products or cigarette wrappers. The cigarette license application
shall be a part of the business registration certificate
application or the renewal application for a business registration
certificate
and shall set forth each location where cigarettes or
other tobacco products are to be sold.
(b) The license shall be printed on the business registration
certificate or certificates issued under the provisions of
subsection (a), section four of this article.
(c) Any person or company who sells any cigarettes, or other
tobacco products or cigarette wrappers at wholesale or retail after
the first day of July, two thousand one, without obtaining the
license specified in subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than two hundred fifty dollars.
(d) For registration years beginning on or after the first day of
July, two thousand two, the term "tobacco products" shall include
cigars, snuff, chewing tobacco or tobacco product, in any form or
any pipes, cigarette paper or any other paper prepared,
manufactured or made for the purpose of smoking any tobacco or
tobacco product, as well as cigarettes and cigarette wrappers and
tobacco products of any kind.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-18. Unlawful acts of licensees; criminal penalties.
(a) It shall be unlawful:
(1) For any licensee, his, her, its or their servants, agents or
employees to sell, give or dispense, or any individual to drink or
consume, in or on any licensed premises or in any rooms directly
connected therewith, nonintoxicating beer or cooler on weekdays
between the hours of two o'clock a.m. and seven o'clock a.m., or
between the hours of two o'clock a.m. and one o'clock p.m., on any
Sunday, except in private clubs licensed under the provisions of
article seven, chapter sixty of this code, where the hours shall
conform with the hours of sale of alcoholic liquors;
(2) For any licensee, his, her, its or their servants, agents or
employees, to sell, furnish or give any nonintoxicating beer as
defined in this article to any person visibly or noticeably
intoxicated, or to any person known to be insane or known to be a
habitual drunkard;
(3) For any licensee, his, her, its or their servants, agents or
employees, to sell, furnish or give any nonintoxicating beer as
defined in this article to any person who is less than twenty-one
years of age;
(4) For any distributor to sell or offer to sell, or any retailer
to purchase or receive, any nonintoxicating beer as defined in this
article, except for cash; and no right of action shall exist to
collect any claims for credit extended contrary to the provisions
of this subdivision. Nothing herein contained shall prohibit a
licensee from crediting to a purchaser the actual price charged for
packages or containers returned by the original purchaser as a
credit on any sale, or from refunding to any purchaser the amount
paid or deposited for such containers when title is retained by the
vendor;
(5) For any brewer or distributor or brewpub or his, her, its
or their agents, to transport or deliver nonintoxicating beer as
defined in this article to any retail licensee on Sunday;
(6) For any brewer or distributor to give, furnish, rent or
sell any equipment, fixtures, signs or supplies directly or
indirectly or through a subsidiary or affiliate to any licensee
engaged in selling products of the brewing industry at retail, or
to offer any prize, premium, gift or other similar inducement,
except advertising matter of nominal value, to either trade or
consumer buyers:
Provided, That a distributor may offer, for sale or rent, tanks of carbonic gas. Nothing herein contained shall
prohibit a brewer from sponsoring any professional or amateur
athletic event or from providing prizes or awards for participants
and winners in any such events:
Provided, however, That no such
event shall be sponsored which permits actual participation by
athletes or other persons who are minors, unless specifically
authorized by the commissioner;
(7) For any licensee to permit in his premises any lewd,
immoral or improper entertainment, conduct or practice;
(8) For any licensee except the holder of a license to operate
a private club issued under the provisions of article seven,
chapter sixty of this code, or a holder of a license or a private
wine restaurant issued under the provisions of article eight of
said chapter sixty, to possess a federal license, tax receipt or
other permit entitling, authorizing or allowing such licensee to
sell liquor or alcoholic drinks other than nonintoxicating beer;
(9) For any licensee to obstruct the view of the interior of
his premises by enclosure, lattice, drapes or any means which would
prevent plain view of the patrons occupying such premises. The
interior of all licensed premises shall be adequately lighted at
all times:
Provided, That provisions of this subdivision shall not
apply to the premises of a Class B retailer, the premises of a
private club licensed under the provisions of article seven,
chapter sixty of this code, or the premises of a private wine restaurant licensed under the provisions of article eight of said
chapter sixty;
(10) For any licensee to manufacture, import, sell, trade,
barter, possess or acquiesce in the sale, possession or consumption
of any alcoholic liquors on the premises covered by such license or
on premises directly or indirectly used in connection therewith:
Provided, That the prohibition contained in this subdivision with
respect to the selling or possessing or to the acquiescence in the
sale, possession or consumption of alcoholic liquors shall not be
applicable with respect to the holder of a license to operate a
private club issued under the provisions of article seven, chapter
sixty of this code, nor shall the prohibition be applicable to a
private wine restaurant licensed under the provisions of article
eight of said chapter insofar as such private wine restaurant is
authorized serve wine;
(11) For any retail licensee to sell or dispense
nonintoxicating beer, as defined in this article, purchased or
acquired from any source other than a distributor, brewer or
manufacturer licensed under the laws of this state;
(12) For any licensee to permit loud, boisterous or disorderly
conduct of any kind upon his or her premises or to permit the use
of loud musical instruments if either or any of the same may
disturb the peace and quietude of the community wherein such
business is located:
Provided, That no licensee shall have in connection with his or her place of business any loudspeaker
located on the outside of the licensed premises that broadcasts or
carries music of any kind;
(13) For any person whose license has been revoked, as in this
article provided, to obtain employment with any retailer within the
period of one year from the date of such revocation, or for any
retailer to employ knowingly any such person within such time;
(14) For any distributor to sell, possess for sale, transport
or distribute nonintoxicating beer except in the original
container;
(15) For any licensee to knowingly permit any act to be done
upon the licensed premises, the commission of which constitutes a
crime under the laws of this state;
(16) For any Class B retailer to permit the consumption of
nonintoxicating beer upon his licensed premises;
(17) For any Class A licensee, his, her, its or their
servants, agents or employees, or for any licensee by or through
such servants, agents or employees, to allow, suffer or permit any
person less than eighteen years of age to loiter in or upon any
licensed premises; except, however, that the provisions of this
subdivision shall not apply where such person under the age of
eighteen years is in or upon such premises in the immediate company
of his or her parent or parents, or where and while such person
under the age of eighteen years is in or upon such premises for the purpose of and actually making a lawful purchase of any items or
commodities therein sold, or for the purchase of and actually
receiving any lawful service therein rendered, including the
consumption of any item of food, drink or soft drink therein
lawfully prepared and served or sold for consumption on such
premises;
(18) For any distributor to sell, offer for sale, distribute
or deliver any nonintoxicating beer outside the territory assigned
to such distributor by the brewer or manufacturer of such
nonintoxicating beer or to sell, offer for sale, distribute or
deliver any such nonintoxicating beer to any retailer whose
principal place of business or licensed premises is within the
assigned territory of another distributor of such nonintoxicating
beer:
Provided, That nothing herein shall be deemed to prohibit
sales of convenience between distributors licensed in this state
wherein one such distributor sells, transfers or delivers to
another such distributor a particular brand or brands for sale at
wholesale; and
(19) For any licensee or any agent, servant or employee of any
such licensee to knowingly violate any rule or regulation lawfully
promulgated by the commissioner in accordance with the provisions
of chapter twenty-nine-a of this code.
(b)
Any Except for a violation of subsection (c) of this
section, any person who violates any provision of this article including, but not limited to, any provision of this section, or
any rule, regulation, or order lawfully promulgated by the
commissioner, or who makes any false statement concerning any
material fact in submitting application for license or for a
renewal of a license or in any hearing concerning the revocation
thereof, or who commits any of the acts herein declared to be
unlawful, shall be guilty of a misdemeanor, and shall be punished
for each offense by a fine of not less than twenty-five nor more
than five hundred dollars, or imprisoned in the county jail for not
less than thirty days or 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.
(c)(1)
No individual, firm, corporation or business entity may
sell or give for a commercial purpose to another under the age of
twenty-seven any non-intoxicating beer,
as defined in section
three, article sixteen, chapter eleven of this code,
without first
verifying the age of the person purchasing or receiving such
product or products by requiring the presentation of
a valid West
Virginia driver's license or other photographic identification
issued by this state, another state or the United States
government, or a passport of a foreign government or similar
identification issued by a governmental entity.
Such identification shall not be required from an individual whom the
person selling or giving the product has reasonable cause to
believe is at least twenty-seven years of age. As used in this
subsection, "reasonable cause" means having enough information as
would lead an ordinarily prudent person to believe that the person
in question is at least twenty-seven years of age.
(2) Any individual, firm, corporation or business entity that
violates the provisions of this subsection may be assessed an
enforcement processing fee by the commissioner of the alcohol
beverage control administration in an amount no greater than
twenty-five dollars for each violation: Provided, That in any
enforcement action pursuant to the provisions of this subsection,
it shall be an absolute defense that the individual to whom the
non-intoxicating beer was sold or given was at least twenty-one
years of age.
(3) The requirements of subdivision (1) of this subsection may
be satisfied by the performance of a transaction scan that verifies
the age of the cardholder if it is shown that the individual
selling or giving the non-intoxicating beer acted reasonably to
determine that the purchaser or recipient of the product was the
person identified on the identification card.
(4) "Transaction scan" means the process by which a person
checks by means of a transaction scan device the age and identity
of the cardholder, and "transaction scan device" means any commercial device or combination of devices used at a point of sale
that is capable of deciphering in an electronically readable format
the information enclosed on the magnetic strip or bar code of a
driver's license or identity card.
(5) Information from a transaction scan may not be used or
released for any purpose other than to verify compliance or
noncompliance with the provisions of this article.
(6) In any administrative enforcement action by the
commissioner of the alcohol beverage control administration or
criminal action arising out of the sale of nonintoxicating beer to
an individual under the age of twenty-one years, it shall be an
absolute defense that the individual, firm, corporation or business
entity complied with the provisions of this subsection by
requesting and being shown a qualifying photographic identification
showing the person receiving the nonintoxicating beer to be at
least twenty-one years of age.
(7) In determining whether an individual, firm, corporation or
business entity has proven the absolute defense provided by
subdivision six of this subsection, the trier of fact shall
consider whether the person delivering the nonintoxicating beer
product on a commercial basis acted reasonably to determine whether
the description and picture appearing on the driver's license or
identity card presented by the cardholder is that of the
cardholder.
(c) (d) Nothing in this article nor any rule or regulation of
the commissioner shall prevent or be deemed to prohibit any
licensee from employing any person who is at least eighteen years
of age to serve in such licensee's lawful employ, including the
sale or delivery of nonintoxicating beer as defined in this
article. With the prior approval of the commissioner, a licensee
whose principal business is the sale of food or consumer goods or
the providing of recreational activities, including, but not
limited to, nationally franchised fast food outlets,
family-oriented restaurants, bowling alleys, drug stores, discount
stores, grocery stores, and convenience stores, may employ persons
who are less than eighteen years of age but at least sixteen years
of age: Provided, That such person's duties shall not include the
sale or delivery of nonintoxicating beer or alcoholic liquors:
Provided, however, That the authorization to employ such persons
under the age of eighteen years shall be clearly indicated on the
licensee's license.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe, cigar,
snuff, or chewing tobacco to persons under eighteen penalties
for first and subsequent offense; licensing penalties for
failure to obtain license.
(a) No
person individual, firm, corporation or business entity may sell, give or furnish, or cause to be sold, given or furnished,
to any person under the age of eighteen years:
(1) Any pipe, cigarette paper or any other paper prepared,
manufactured or made for the purpose of smoking any tobacco or
tobacco product; or
(2) Any cigar, cigarette, snuff, chewing tobacco or tobacco
product, in any form.
(b) Any firm
, or corporation
or business entity that violates
any of the provisions of
subdivision (1) or (2), subsection (a) of
this section and any individual who violates any of the provisions
of subdivision (1), subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined
twenty-five fifty dollars for the first offense. Upon any
subsequent violation at the same location or operating unit, the
individual, firm, corporation, or
licensee business entity shall be
fined as follows: At least one hundred dollars but not more than
two hundred dollars for the second offense, if it occurs within two
years of the first conviction; at least two hundred fifty dollars
but not more than five hundred dollars for the third offense, if it
occurs within two years of the first conviction; at least two
hundred fifty dollars but not more than five hundred dollars for
the fourth offense, if it occurs within five years of the first
conviction; and at least one thousand dollars but not more than
five thousand dollars for the fifth and any subsequent offenses, if the fifth or subsequent offense occurs within five years of the
first conviction.
(c) Any individual who knowingly and intentionally sells,
gives or furnishes or causes to be sold, given or furnished to any
person under the age of eighteen years any cigar, cigarette, snuff,
chewing tobacco or tobacco product, in any form, is guilty of a
misdemeanor and, upon conviction thereof, for the first offense
shall be fined not more than one hundred dollars; upon conviction
thereof for a second or subsequent offense, is guilty of a
misdemeanor and shall be fined not less than one hundred nor more
than five hundred dollars.
(d) Any individual who is not at least eighteen years of age
and who, with or without the use of false identification, attempts
to have an individual, firm, corporation or business entity sell or
give to him or her on a commercial basis any tobacco product, as
defined in section four-a, article twelve, chapter eleven of this
code, is guilty of a misdemeanor and, upon conviction thereof shall
for the first violation be fined twenty-five dollars and be
required to serve eight hours of community service; for a second
violation, the person shall be fined fifty dollars and be required
to serve sixteen hours of community service; and for a third and
each subsequent violation, the person shall be fined one hundred
dollars and be required to serve twenty-four hours of community
service. Notwithstanding the provisions of section two, article
five, chapter forty-nine of this code, the magistrate court shall
have concurrent jurisdiction.
(e) No individual, firm, corporation or business entity may
sell or give for a commercial purpose to another under the age of
twenty-seven any tobacco product as defined in section four-a,
article twelve, chapter eleven of this code without first verifying
the age of the person purchasing or receiving such product or
products by requiring the presentation of a valid West Virginia
driver's license or other photographic identification issued by
this state, another state or the United States government, or a
passport of a foreign government or similar identification issued
by a governmental entity.
Such identification shall not be
required from an individual whom the person selling or giving the
product has reasonable cause to believe is at least twenty-seven
years of age. As used in this subsection "reasonable cause" means
having enough information as would lead an ordinarily prudent
person to believe that the person in question is at least twenty-
seven years of age.
(f) Any individual, firm, corporation or business entity that
violates the provisions of subsection (e) of this section may be
assessed an enforcement processing fee by the commissioner of the
alcohol beverage control administration in an amount no greater
than twenty-five dollars for each violation: Provided, That in any
enforcement action pursuant to the provisions of subsection (e) of
this section, it shall be an absolute defense that the individual
to whom the tobacco product was sold or given was at least eighteen
years of age.
(g) The requirements of subsection (e) may be satisfied by the performance of a transaction scan that verifies the age of the
cardholder if it is shown that the individual selling or giving the
tobacco product acted reasonably to determine that the purchaser or
recipient of the tobacco product was the person identified on the
identification card.
(1) "Transaction scan" means the process by which a person
checks by means of a transaction scan device the age and identity
of the cardholder, and "transaction scan device" means any
commercial device or combination of devices used at a point of sale
that is capable of deciphering in an electronically readable format
the information enclosed on the magnetic strip or bar code of a
driver's license or identity card.
(2) Information from a transaction scan may not be used or
released for any purpose other than to verify compliance or
noncompliance with the provisions of this article.
(h) The products listed in subsection (a) of this section may
be sold from vending machines without meeting the identification
requirements of subsection (e) of this section if the machine is
operated in compliance with the provisions of section eight of this
article and notice is posted on the machine in a conspicuous manner
and place indicating that the purchase and possession of tobacco
products by minors is illegal.
(i)(1) In any criminal action for a violation of subsection
(a), (b) or (c) of this section or any administrative enforcement
action by the commissioner of the alcohol beverage control
administration arising out of the sale of a tobacco to an individual under the age of eighteen years, it shall be an absolute
defense that the individual, firm, corporation or business entity
complied with the provisions of subsection (e) of this section by
requesting and being shown a qualifying photographic identification
showing the person receiving the tobacco product to be at least
eighteen years of age.
(2) In determining whether an individual, firm, corporation or
business entity has proven the absolute defense provided by
subdivision (1) of this subsection, the trier of fact shall
consider whether the person delivering the tobacco product on a
commercial basis acted reasonably to determine whether the
description and picture appearing on the driver's license or
identity card presented by the cardholder is that of the
cardholder.
(j) The commissioner of the alcohol beverage control
administration and the state tax department shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code and emergency rules
providing procedures for suspending, revoking, denying or refusing
to renew the license required by the provisions of section four-a,
article twelve, chapter eleven of this code for any location at
which a violation of this section occurs. The rules shall specify
reasons for which a license may not be issued or renewed and
reasons for which a license to sell tobacco products may be
suspended, revoked, denied or refused to renew at any location
selling tobacco products for violation of this article: Provided, That only convictions for violations of subsections (a), (b) or (c)
of this section and actual administrative violations arising out of
the sale of a tobacco product to an individual under the age of
eighteen years may be considered as grounds for any action
affecting the license of a retailer to sell tobacco products:
Provided, however, That the rules may only be applied to affect the
license of the retail location at which a violation is committed
and may not be applied to affect any location operated by a single
business entity as a result of a violation or violations occurring
at other retail locations owned by that entity.
(k) The clerk of a court shall notify the commissioner of the
alcohol beverage control administration within five days that a
judgment of conviction for the offenses set forth in subsections
(a), (b) or (c) of this section has been entered.
(l) The commissioner of the alcohol beverage control administration
shall deposit enforcement processing fees collected pursuant to
this section into the operating fund created in article three,
chapter sixty of this code to be used to defray the costs of
administering and enforcing the provisions of this section.
§16-9A-7. Enforcement of youth smoking laws; retail tobacco outlet
inspections; use of minors in inspections; annual reports;
penalties; defenses.
(a) The commissioner of the West Virginia alcohol beverage
control administration, the superintendent of the West Virginia
state police, the sheriffs of the counties of this state and the
chiefs of police of municipalities of this state, may periodically conduct unannounced inspections at locations where tobacco products
are sold or distributed to ensure compliance with the provisions of
sections two and three of this article and in such manner as to
conform with applicable federal and state laws, rules and
regulations. Persons under the age of eighteen years may be
enlisted by such commissioner, superintendent, sheriffs or chiefs
of police or employees or agents thereof to test compliance with
these sections: Provided, That the minors may be used to test
compliance only if the testing is conducted under the direct
supervision of the commissioner, superintendent, sheriffs or chiefs
of police or employees or agents thereof and written consent of the
parent or guardian of such person is first obtained and such minors
shall not be in violation of section three of this article and
chapter when acting under the direct supervision of the
commissioner, superintendent, sheriffs or chiefs of police or
employees or agents thereof and with the written consent of the
parent or guardian. It is unlawful for any person to use persons
under the age of eighteen years to test compliance in any manner
not set forth herein and the person so using a minor is guilty of
a misdemeanor and, upon conviction thereof, shall be fined the same
amounts as set forth in subsection (c), section two of this
article.
(b) A person charged with a violation of section two or three
of this article as the result of an inspection under subsection (a)
of this section has a complete defense if, at the time the
cigarette or other tobacco product or cigarette wrapper was sold, delivered, bartered, furnished or given:
(1) The buyer or recipient falsely evidenced that he was
eighteen years of age or older; and or
(2) The appearance of the buyer or recipient was such that a
prudent person would believe the buyer or recipient to be eighteen
years of age or older; and
(3) Such person carefully checked a driver's license or an
identification card issued by this state or another state of the
United States, a passport or a United States armed services
identification card presented by the buyer or recipient and acted
in good faith and in reliance upon the representation and
appearance of the buyer or recipient in the belief that the buyer
or recipient was eighteen years of age or older.
(2) The person complied with the requirements of subsection
(e), section two of this article: Provided, That if a transaction
scan device was used, the individual acted reasonably to determine
whether the description and picture appearing on the driver's
license or identity card presented by the cardholder was that of
the cardholder.
(c) Any fine collected after a conviction of violating section
two of this article shall be paid to the clerk of the court in
which the conviction was obtained: Provided, That the clerk of the
court upon receiving the fine shall promptly notify the
commissioner of the West Virginia alcohol beverage control
administration of the conviction and the collection of the fine:
Provided, however, That any community service penalty imposed after a conviction of violating section three of this article shall be
recorded by the clerk of the court in which the conviction was
obtained: Provided further, That the clerk of the court upon being
advised that community service obligations have been fulfilled
shall promptly notify the commissioner of the West Virginia alcohol
beverage control administration of the conviction and the
satisfaction of imposed community service penalty.
(d) The commissioner of the West Virginia alcohol beverage
control administration or his or her designee shall prepare and
submit to the governor on the last day of September of each year a
report of the enforcement and compliance activities undertaken
pursuant to this section and the results of the same, with a copy
to the secretary of the West Virginia department of health and
human resources. The report shall be in the form and substance
that the governor shall submit to the applicable state and federal
programs.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-25a. Mandatory verification of age of persons purchasing
alcohol.
(a) No individual, firm, corporation or business entity may
sell or give for a commercial purpose to another under the age of
twenty-seven any alcoholic liquor without first verifying the age
of the person purchasing or receiving such product by requiring the
presentation of a valid West Virginia driver's license or other
photographic identification issued by this state, another state or the United States government, or a passport of a foreign government
or similar identification issued by a governmental entity. Such
identification shall not be required from an individual whom the
person selling or giving the product has reasonable cause to
believe is at least twenty-seven years of age. As used in this
subsection, "reasonable cause" means having enough information as
would lead an ordinarily prudent person to believe that the person
in question is at least twenty-seven years of age: Provided, That
the age verification provisions of this subsection do not apply to
sales in the licensed premises by a holder, or the holder's
employees, of a license for a private club issued under article
seven of this chapter.
(b) The requirements of subsection (a) may be satisfied by the
performance of a transaction scan that verifies the age of the
cardholder if it is shown that the individual selling or giving the
alcoholic liquor acted reasonably to determine that the purchaser
or recipient of the tobacco product was the person so identified on
the identification card.
(1) "Transaction scan" means the process by which a person
checks by means of a transaction scan device the age and identity
of the cardholder, and "transaction scan device" means any
commercial device or combination of devices used at a point of sale
that is capable of deciphering in an electronically readable format
the information enclosed on the magnetic strip or bar code of a
driver's license or identity card.
(2) Information from a transaction scan may not be used or released for any purpose other than to verify compliance or
noncompliance of the licensee with the provisions of this article.
(c)(1) In any administrative enforcement action by the
commissioner of the alcohol beverage control administration or
criminal action arising out of the sale of a alcoholic liquor to an
individual under the age of twenty-one years, it shall be an
absolute defense that the individual, firm, corporation or business
entity complied with the provisions of subsection (a) of this
section by requesting and being shown a qualifying photographic
identification showing the person receiving the alcoholic liquor
product to be at least twenty-one years of age.
(2) In determining whether an individual, firm, corporation or
business entity has proven the absolute defense provided by
subdivision (1) of this subsection, the trier of fact shall
consider whether the person delivering the alcoholic liquor on a
commercial basis acted reasonably to determine whether the
description and picture appearing on the driver's license or
identity card presented by the cardholder is that of the
cardholder.
(d) Any individual, firm, corporation or business entity that
violates the provisions of subsection (a) of this section may be
assessed an enforcement processing fee in an amount no greater than
twenty-five dollars for each violation: Provided, That in any
enforcement action pursuant to the provisions of subsection (a) of
this section, it shall be an absolute defense that the individual
to whom the alcoholic liquor was sold or given was at least twenty-one years of age.
ARTICLE 8. SALE OF WINES.
§60-8-20. Unlawful acts generally.
It shall be unlawful:
(a) For a distributor to sell or deliver wine purchased or
acquired from any source other than a person registered under the
provisions of section six, article eight, chapter sixty of this
code, or for a retailer to sell or deliver wine purchased or
acquired from any source other than a licensed distributor or a
farm winery as defined in section five-a, article one of this
chapter;
(b) Unless otherwise specifically provided for by the
provisions of this article, for a licensee under this article to
acquire, transport, possess for sale, or sell wine other than in
the original package;
(c) For a licensee, his servants, agents or employees to sell,
furnish or give wine to any person less than twenty-one years of
age, or to a mental incompetent, or person who is physically
incapacitated due to the consumption of alcoholic liquor or the use
of drugs; : Provided, That the provisions of section twenty-five-a,
article three-a of this chapter shall apply to sales of wine.
(d) For a licensee to permit a person who is less than
eighteen years of age to sell, furnish or give wine to any person;
(e) For a distributor to sell or deliver any brand of wine
purchased or acquired from any source other than the primary source
of supply of the wine which granted the distributor the right to sell such brand at wholesale. For the purposes of this article,
"primary source of supply" means the vintner of the wine, the
importer of a foreign wine who imports the wine into the United
States, the owner of a wine at the time it becomes a marketable
product, the bottler of a wine, or an agent specifically authorized
by any of the above-enumerated persons to make a sale of the wine
to a West Virginia distributor: Provided, That no retailer shall
sell or deliver wine purchased or acquired from any source other
than a distributor licensed as such in this state: Provided,
however, That nothing herein shall be deemed to prohibit sales of
convenience between distributors licensed in this state wherein one
such distributor sells, transfers or delivers to another such
distributor a particular brand or brands for sale at wholesale, of
which brand or brands such other distributor may be temporarily out
of stock. The commissioner shall promulgate such rules or
regulations as may be necessary to carry this subsection into
effect;
(f) For a person to violate any reasonable rule or regulation
promulgated by the commissioner under this article;
(g) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be deemed to prohibit any licensee
from employing any person who is at least eighteen years of age to
serve in any licensee's lawful employment, including the sale or
delivery of wine under the provisions of this article. With the
prior approval of the commissioner, a licensee whose principal
business is the sale of food or consumer goods or the providing of recreational activities, including, but not limited to, nationally
franchised fast food outlets, family-oriented restaurants, bowling
alleys, drug stores, discount stores, grocery stores, and
convenience stores, may employ persons who are less than eighteen
years of age but at least sixteen years of age: Provided, That
such person's duties shall not include the sale or delivery of
nonintoxicating beer or alcoholic liquors: Provided, however, That
the authorization to employ such persons under the age of eighteen
years shall be clearly indicated on the licensee's license.
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