ENGROSSED

Senate Bill No. 763

(By Senators Wooton, Dittmar, Kessler, Ross and Snyder)

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[Originating in the Committee on the Judiciary;


reported March 3, 1998.]

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A BILL to amend and reenact sections three and eighteen, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section five, article one, chapter sixty of said code; to amend and reenact section twenty-two, article three of said chapter; to amend and reenact section twelve, article seven of said chapter; and to amend and reenact section twenty, article eight of said chapter; all relating to the sale of nonintoxicating beer, wine and alcoholic liquor to certain persons; defining terms; providing for unlawful acts of licensees and setting forth penalties therefor; establishing defenses for violations; and making certain technical revisions.

Be it enacted by the Legislature of West Virginia:
That sections three and eighteen, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section five, article one, chapter sixty of said code be amended and reenacted; that section twenty-two, article three of said chapter be amended and reenacted; that section twelve, article seven of said chapter be amended and reenacted; and that section twenty, article eight of said chapter be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.

§11-16-3. Definitions.

For the purpose of this article, except where the context clearly requires differently:
(1) "Brewer" or "manufacturer" shall mean any person, firm, association, partnership or corporation manufacturing, brewing, mixing, concocting, blending, bottling or otherwise producing or importing or transshipping from a foreign country nonintoxicating beer for sale at wholesale to any licensed distributor.
(2) "Brewpub" shall mean a place of manufacture of nonintoxicating beer owned by a resident brewer, subject to federal regulations and guidelines, a portion of which premises are designated for retail sales.
(3) "Commissioner" shall mean the West Virginia alcohol beverage control commissioner.
(4) "Distributor" shall mean and include any person jobbing or distributing nonintoxicating beer to retailers at wholesale and whose warehouse and chief place of business shall be within this state.
(5) "Habitual drunkard" shall mean any person whom a retailer reasonably knows is habitually addicted to the use of nonintoxicating beer or any alcoholic liquor or any person whose health care surrogate, medical power of attorney, guardian or conservator has given written notice to the retailer that said person is habitually addicted to the use of nonintoxicating beer or any alcoholic liquor.
(6) "Mentally incompetent" shall mean any person who is known by the individual actually making a sale to be currently subject to an involuntary hospitalization order pursuant to article five, chapter twenty-seven of this code and who is visibly or noticeably intoxicated at the time of the sale.
(7)(5) "Nonintoxicating beer" shall mean all cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale and all other mixtures and preparations produced by the brewing industry, including malt coolers and containing at least one half of one percent alcohol by volume, but not more than four and two-tenths percent of alcohol by weight, or six percent by volume, whichever is greater, all of which are hereby declared to be nonintoxicating and the word "liquor" as used in chapter sixty of this code shall not be construed to include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.
(8)(6) "Original container" shall mean the container used by the brewer at the place of manufacturing, bottling or otherwise producing nonintoxicating beer for sale at wholesale.
(9)(7) "Person" shall mean and include an individual, firm, partnership, limited partnership, association or corporation.
(10)(8) "Resident brewer" shall mean any person, firm, association, partnership or corporation whose principal place of business is within the state.
(11)(9) "Retailer" shall mean any person selling, serving or otherwise dispensing nonintoxicating beer and all products regulated by this article, including, but not limited to, any malt cooler, at his established and licensed place of business.
§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 who is mentally incompetent or known to be a an 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, 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;
(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 to 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 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) 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.
(d) It shall be a defense to a violation of subdivision (2), subsection (a) of this section pertaining to habitual drunkards that the retailer making the sale shows that, at the time of the sale, the retailer had not received written notice at the location of the sale as provided in said subdivision.
(e) It shall be a defense to a violation of subdivision (2), subsection (a) of this section pertaining to mentally incompetent persons if the retailer making the sale shows that, at the time of the sale, he did not know that the purchaser had been under an order of involuntary hospitalization pursuant to article five, chapter twenty-seven of this code.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 1. GENERAL PROVISIONS.

§60-1-5. Definitions.

For the purposes of this chapter:
"Alcohol" shall mean ethyl alcohol whatever its origin and shall include synthetic ethyl alcohol but not denatured alcohol.
"Beer" shall mean any beverage obtained by the fermentation of barley, malt, hops or any other similar product or substitute, and containing more alcohol than that of nonintoxicating beer.
"Nonintoxicating beer" shall mean any beverage, obtained by the fermentation of barley, malt, hops or similar products or substitute, and containing not more alcohol than that specified by section two, article sixteen, chapter eleven of this code.
"Wine" shall mean any alcoholic beverage obtained by the fermentation of the natural content of fruits, or other agricultural products, containing sugar.
"Spirits" shall mean any alcoholic beverage obtained by distillation and mixed with potable water and other substances in solution, and includes brandy, rum, whiskey, cordials and gin.
"Alcoholic liquor" shall include alcohol, beer, wine and spirits, and any liquid or solid capable of being used as a beverage, but shall not include nonintoxicating beer.
"Original package" shall mean any closed or sealed container or receptacle used for holding alcoholic liquor.
"Sale" shall mean any transfer, exchange or barter in any manner or by any means, for a consideration, and shall include all sales made by principal, proprietor, agent or employee.
"Selling" shall include solicitation or receipt of orders; possession for sale; and possession with intent to sell.
"Person" shall mean an individual, firm, partnership, limited partnership, corporation or voluntary association.
"Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor.
"Manufacturer" shall mean any person engaged in the manufacture of any alcoholic liquor, and among others includes a distiller, a rectifier, a wine maker and a brewer.
"Brewery" shall mean an establishment where beer is manufactured or in any way prepared.
"Winery" shall mean an establishment where wine is manufactured or in any way prepared.
"Distillery" shall mean an establishment where alcoholic liquor other than wine or beer is manufactured or in any way prepared.
"Public place" shall mean any place, building or conveyance to which the public has, or is permitted to have access, including restaurants, soda fountains, hotel dining rooms, lobbies, and corridors of hotels and any highway, street, lane, park or place of public resort or amusement: Provided, That the term "public place" shall not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of this chapter to sell alcoholic liquors for consumption on the premises.
"State liquor store" shall mean a store established and operated by the commission under this chapter for the sale of alcoholic liquor in the original package for consumption off the premises.
"An agency" shall mean a drugstore, grocery store or general store designated by the commission as a retail distributor of alcoholic liquor for the West Virginia alcohol beverage control commissioner.
"Department" shall mean the organization through which the commission exercises powers imposed upon it by this chapter.
"Commissioner" or "Commission" shall mean the West Virginia alcohol beverage control commissioner.
"Intoxicated" shall mean having one's faculties impaired by alcohol or other drugs to the point where physical or mental control or both are markedly diminished.
"Habitual drunkard" shall mean any person whom a retail distributor reasonably knows is habitually addicted to the use of nonintoxicating beer or any alcoholic liquor or any person whose health care surrogate, medical power of attorney, guardian or conservator has given written notice to the retail distributor that said person is habitually addicted to the use of nonintoxicating beer or any alcoholic liquor.
"Mentally incompetent" shall mean any person who is known by the individual making a sale to be currently subject to an involuntary hospitalization order pursuant to article five, chapter twenty-seven of this code and who is visibly or noticeably intoxicated at the time of the sale.
ARTICLE 3. SALES BY COMMISSIONER.

§60-3-22. Sales to certain persons prohibited.

(a) Alcoholic liquors and nonintoxicating beer as defined in section three, article sixteen, chapter eleven of this code shall not be sold to a person who is:
(1) Less than twenty-one years of age;
(2) An habitual drunkard;
(3) Visibly or noticeably intoxicated;
(4) Known by the individual making the sale to have been convicted for an offense for Addicted to the use of any controlled substance as defined by any of the provisions of pursuant to section four hundred one, article four, chapter sixty-a of this code; or
(5) Mentally incompetent.
(b) It shall be a defense to a violation of subdivision (1), subsection (a) of this section if the seller shows that the purchaser:
(1) Produced written evidence which showed his or her age to be at least the required age for purchase and which bore a physical description of the person named on the writing which reasonably described the purchaser; or
(2) Produced evidence of other facts that reasonably indicated at the time of sale that the purchaser was at least the required age.
(c) It shall be a defense to a violation of subdivision(2), subsection(a) of this section if the retail distributor making the sale shows that, at the time of the sale, the retail distributor had not received written notice at the location of the sale from any health care surrogate, medical power of attorney, guardian or conservator that said person is an habitual drunkard.
(d) It shall be a defense to a violation of subdivision (3), subsection (a) of this section if the individual making the sale shows that, at the time of the sale, he did not know that the purchaser had been under an order of involuntary hospitalization under article five, chapter twenty-seven of this code.
(e) It shall be a defense to a violation of subdivision (4), subsection (a) of this section if the retail distributor making the sale shows that, at the time of the sale, he did not know that the purchaser had been convicted for an offense for the use of any controlled substance under section four hundred eight, article four, chapter sixty-a of this code.
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 legally mentally 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;. It shall be a defense to a violation of this subdivision if the licensee making the sale shows that, at the time of the sale, the licensee did not know that the purchaser had been under an order of involuntary hospitalization pursuant to article five, chapter twenty-seven of this code;
(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;
(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 private club or a guest of such 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 jail for a period not to exceed one year, or both fined and imprisoned.
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;. It shall be a defense to a violation of this subsection if the licensee making the sale shows that, at the time of the sale, he did not know that the purchaser had been under an order of involuntary hospitalization pursuant to article five, chapter twenty-seven of this code.
(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.