Senate Bill No. 742
(By Senators Helmick, Sharpe, Prezioso, Plymale
Edgell, Love, Bailey, Bowman, McCabe, Unger, Minear, Boley,
Facemyer, Yoder, Guills and Sprouse)
[Originating in the Committee on Finance;
reported March 24, 2005.]
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;
establishing criminal penalties; and providing similar public
nuisance provisions in relation to beer as there currently
exists for liquor.
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.
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 prohibits
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.
(b) Any 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.
Any person who violates the provisions of this section a second or
subsequent time is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than five hundred nor more than
one thousand dollars.
§11-16-5a. Places considered common and public nuisances;
(a) A place where nonintoxicating beer is manufactured, sold,
possessed for sale, distributed, furnished or given away contrary
to law, is 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 are 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 maintains or aids or abets or
knowingly associates with others in maintaining a 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 the 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.
(b) If two or more persons conspire to maintain a 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 those
persons do any act to effect the object of the conspiracy, each of
the parties to the 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
§11-16-5b. Suits to abate nuisances; injunction.
(a) 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 have jurisdiction of the suit. The injunction may
be granted at the commencement of the suit and no bond is 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 any period of time 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 the dissolution.
(b) 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.
(a) If there is a complaint on oath or affirmation supported
by affidavit or affidavits setting forth the facts for the 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 that belief, shall issue a warrant to search the house or other
place for nonintoxicating beer. The warrants, except as otherwise provided in this section, shall be issued, directed and executed in
accordance with the laws of West Virginia pertaining to search
(b) 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.
(c) 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 described in this article.