Senate Bill No. 588

(By Senator Unger)

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[Introduced February 21, 2000; referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section twenty-three, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section twenty-seven, article three-a, chapter sixty of said code; to amend and reenact section thirteen, article seven of said chapter; and to amend and reenact section eighteen, article eight of said chapter, all relating to sale of nonintoxicating beer, wine or alcoholic liquor to persons under twenty-one years of age; and mandatory one-year revocation of license for conviction of second or subsequent offense of sale to person less than twenty-one years of age.

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

ARTICLE 16. NONINTOXICATING BEER.

§11-16-23. Revocation or suspension of license; monetary penalty; hearing assessment of costs; establishment of enforcement fund.

(a) Upon a determination by the commissioner that a licensee has: (i) Violated the provisions of section eighteen of this article or of chapter sixty of this code; (ii) acted in such a way as would have precluded initial or renewal licensure; or (iii) violated any rule or order promulgated by the commissioner, the commissioner may:
(1) Revoke the licensee's license;
(2) Suspend the licensee's license;
(3) Place the licensee on probationary status for a period not to exceed twelve months; and
(4) Impose a monetary penalty not to exceed one thousand dollars for each violation where revocation is not imposed.
(b) Any monetary penalty assessed and collected by the commissioner shall be transmitted to the state treasurer for deposit into the state treasury to the credit of a special revenue fund designated the "Nonintoxicating Beer Enforcement Fund", which is hereby created. All moneys collected, received and deposited in the "Nonintoxicating Beer Enforcement Fund" shall be kept and maintained for expenditures by the commissioner for the purpose of enforcement of the statutes and rules pertaining to nonintoxicating beer and shall not be treated by the state treasurer or state auditor as any part of the general revenue of the state. At the end of each fiscal year all funds in the nonintoxicating beer enforcement fund in excess of twenty thousand dollars shall be transferred to the general revenue fund.
(c) In addition to the grounds for revocation, suspension or other sanction of a license set forth in subsection (a) of this section, conviction of the licensee of any offense constituting a violation of the laws of this state or of the United States relating to nonintoxicating beer or alcoholic liquor shall be mandatory grounds for such sanctioning of a license. Conviction of the licensee of any violation of the laws of this state or of the United States relating to prostitution or the sale, possession or distribution of narcotics or controlled substances shall be mandatory grounds for revocation of the licensee's license for a period of at least one year.
(d) Notwithstanding any provision in this article to the contrary, the commissioner shall revoke, for a period of one year, the license of any licensee convicted within a ten-year period of a second or subsequent offense under subdivision (3), subsection (a), section eighteen of this article, for selling or otherwise providing nonintoxicating beer to a person who is less than twenty-one years of age.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.

§60-3A-27. Suspension or revocation of retail license.

(a) The commissioner may, upon his or her own motion, or upon the sworn complaint of any person, conduct an investigation to determine if any provision of this article or of any rule promulgated by the board or commissioner under authority of this article has been violated by any retail licensee. The commissioner may suspend or revoke a retail license if the retail licensee or any employee thereof acting in the scope of his or her employment has violated any such provision, and may suspend a retail license without hearing for a period not to exceed twenty days if he or she finds probable cause to believe that the retail licensee or any employee thereof acting in the scope of his or her employment has willfully violated any such provision.
(b) The commissioner may revoke a retail license for any reason which would constitute grounds for the denial of an application filed pursuant to section eight of this article.
(c) Notwithstanding any provision in this article to the contrary, the commissioner shall revoke, for a period of one year, the license of any licensee convicted within a ten-year period of a second or subsequent offense under subdivision (2), subsection (a), section twenty-five of this article, for selling or otherwise providing alcoholic liquor to a person who is less than twenty-one years of age.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.

§60-7-13. Revocation or suspension of license; monetary penalty; hearing; assessment of costs; establishment of enforcement fund.

(a) Upon a determination by the commissioner that a licensee has: (i) Violated the provisions of article sixteen, chapter eleven, or of this chapter; (ii) acted in such a way as would have precluded initial or renewal licensure; or (iii) violated any rule or order promulgated by the commissioner, the commissioner may impose any one or a combination of the following sanctions:
(1) Revoke the licensee's license;
(2) Suspend the licensee's license;
(3) Place the licensee on probationary status for a period not to exceed twelve months; and
(4) Impose a monetary penalty not to exceed one thousand dollars for each violation where revocation is not imposed.
(b) Any monetary penalty assessed and collected by the commissioner shall be transmitted to the state treasurer for deposit into the state treasury to the credit of a special revenue fund designated "The Alcohol Beverage Control Enforcement Fund", which is hereby created. All moneys collected, received and deposited in the "Alcohol Beverage Control Enforcement Fund" shall be kept and maintained for expenditures by the commissioner for the purpose of enforcement of the statutes and rules pertaining to alcoholic liquor, and shall not be treated by the state treasurer or state auditor as any part of the general revenue of the state. At the end of each fiscal year all funds in the alcohol beverage control enforcement fund in excess of twenty thousand dollars shall be transferred to the general revenue fund.
(c) In addition to the grounds for revocation, suspension or other sanction of a license set forth in subsection (a) of this section, conviction of the licensee of any offense constituting a violation of the laws of this state or of the United States relating to alcoholic liquor, nonintoxicating beer or gambling shall be mandatory grounds for such sanctioning of a license. Conviction of the licensee of any violation of the laws of this state or of the United States relating to prostitution, or the sale, possession or distribution of narcotics or controlled substances, shall be mandatory grounds for revocation of the licensee's license for a period of at least one year.
(d) Notwithstanding any provision in this article to the contrary, the commissioner shall revoke, for a period of one year, the license of any licensee convicted within a ten-year period of a second or subsequent offense under subdivision (3), subsection (a), section twelve of this article, for selling or otherwise providing nonintoxicating beer, wine or alcoholic liquor to a person who is less than twenty-one years of age.
ARTICLE 8. SALE OF WINES.

§60-8-18. Revocation or suspension of license; procedure upon refusal, revocation or suspension.

(a) The commissioner may on his or her own motion, or shall on the sworn complaint of any person, conduct an investigation to determine if any provisions of this article have been violated by any licensee. The commissioner may suspend or revoke any licensee's license if he or she finds that such licensee has violated any provision of this article, or if he or she finds the existence of any ground on which a license could have been refused, if such licensee were then applying for a license, and if the commissioner finds that a licensee has willfully violated any provision of this article he or she shall revoke such licensee's license.
(b) Notwithstanding any provision in this article to the contrary, the commissioner shall revoke, for a period of one year, the license of any licensee convicted within a ten-year period of a second or subsequent offense under subsection (c), section twenty of this article, for selling or otherwise providing wine to a person who is less than twenty-one years of age.
(b) (c) Whenever any distributor fails or refuses to keep the bond required by section twenty of this article in effect, such distributor's license shall be automatically suspended until such time as bond required by section twenty is furnished to the commissioner, at which time such suspension shall be vacated.
(c) (d) Whenever the commissioner refuses to issue a license, or suspends or revokes a license, he or she shall enter an order to that effect, and cause a copy of the order to be served in person or by certified mail, return receipt requested, on the licensee or applicant.
(d) (e) Any applicant or licensee, as the case may be, adversely affected by such order shall have a right to a hearing thereon before the commissioner, providing that demand in writing for such hearing is served upon the commissioner within ten days following the receipt by such applicant or licensee of the copy of said order. The service of such demand for a hearing upon the commissioner shall operate to suspend the execution of the order with respect to which a hearing is being demanded, except an order suspending a license under the provisions of subsection (b) of this section. The person demanding a hearing shall give security for the cost of such hearing in such form and amount as the commissioner may reasonably require. If the person demanding such hearing does not substantially prevail in such hearing or upon judicial review thereof as hereinafter provided, then the costs of such hearing shall be assessed against him or her by the commissioner and may be collected by an action at law or other proper remedy.
(e) (f) The commissioner shall immediately set a date for such hearing and notify the person demanding such hearing thereof, which hearing shall be held within thirty days after receipt of said demand. At such hearing the commissioner shall hear evidence and thereafter enter an order supporting by findings of facts, affirming, modifying or vacating the order, which order shall be final unless vacated or modified upon judicial review thereof.
(f) (g) Such hearing and the administrative procedure prior to, during and following the hearing shall be governed by and in accordance with the provisions of article five, chapter twenty-nine-a of this code in like manner as if the provisions of article five were set forth in extenso in this section.
(g) (h) Any person adversely affected by an order entered following such hearing shall have the right of judicial review thereof in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code with like effect as if the provisions of said section four were set forth in extenso herein.
(h) (i) The judgment of a circuit court reviewing the order of the commissioner shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(i) (j) Legal counsel and services for the commissioner in all such proceedings in any circuit court and the supreme court of appeals shall be provided by the attorney general or his or her assistants and in any proceedings in any circuit court by the prosecuting attorney of that county as well, all without additional compensation.



NOTE: The purpose of this bill is to provide for the mandatory one year license revocation of any retail outlet or club convicted of a second or subsequent offense of selling alcoholic beverages to minors.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.