H. B. 2094


(By Delegate Schadler)

[Introduced February 14, 2001 ; referred to the

Committee on Political Subdivisions then the Judiciary.]





A BILL to amend and reenact section five, article twelve, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section twelve, article seven, chapter sixty of said code, all relating to allowing municipalities to regulate by ordinance the hours of sale and dispensing of nonintoxicating beer, wine and alcoholic liquors by holders of a license to operate a private club; and providing that such ordinances do not allow these sales during periods of time prohibited by rules of the alcohol beverage control commissioner.

Be it enacted by the Legislature of West Virginia:

That section five, article twelve, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that section twelve, article seven, chapter sixty of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.

PART III. GENERAL POWERS OF MUNICIPALITIES

AND GOVERNING BODIES.

§8-12-5. General powers of every municipality and the governing body thereof.
In addition to the powers and authority granted by: (i) The constitution of this state; (ii) other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not inconsistent or in conflict with any of the foregoing except special legislative charters, every municipality and the governing body thereof shall have has the plenary power and authority therein by ordinance or resolution, as the case may require, and by appropriate action based thereon:
(1) To lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep in good repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways, sidewalks, drains and gutters, for the use of the public, and to improve and light the same, and have them kept free from obstructions on or over them which have not been authorized pursuant to the succeeding provisions of this subdivision (1); and, subject to such terms and conditions as the governing body shall prescribe, to permit, without in any way limiting the power and authority granted by the provisions of article sixteen of this chapter, any person to construct and maintain a passageway, building or other structure overhanging or crossing the airspace above a public street, avenue, road, alley, way, sidewalk or crosswalk, but before any such permission for any person to construct and maintain a passageway, building or other structure overhanging or crossing any such airspace is granted, a public hearing thereon shall be held by the governing body after publication of a notice of the date, time, place and purpose of such public hearing has been published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality: Provided, That any such permit so granted shall automatically cease and terminate in the event of abandonment and nonuse thereof for the purposes intended for a period of ninety days, and all rights therein or thereto shall revert to such municipality for its use and benefit;
(2) To provide for the opening and excavation of streets, avenues, roads, alleys, ways, sidewalks, crosswalks and public places belonging to the municipality and regulate the conditions under which any such opening may be made;
(3) To prevent by proper penalties the throwing, depositing or permitting to remain on any street, avenue, road, alley, way, sidewalk, square or other public place any glass, scrap iron, nails, tacks, wire, other litter, or any offensive matter or anything likely to injure the feet of individuals or animals or the tires of vehicles;
(4) To regulate the use of streets, avenues, roads, alleys, ways, sidewalks, crosswalks and public places belonging to the municipality;
(5) To regulate the width of streets, avenues and roads, and, subject to the provisions of article eighteen of this chapter, to order the sidewalks, footways and crosswalks to be paved, repaved, curbed or recurbed and kept in good order, free and clean, by the owners or occupants thereof or of the real property next adjacent thereto;
(6) To establish, construct, alter, operate and maintain, or discontinue, bridges, tunnels and ferries and approaches thereto;
(7) To provide for the construction and maintenance of water
drains, the drainage of swamps or marshlands and drainage systems;
(8) To provide for the construction, maintenance and covering over of watercourses;
(9) To control and administer the waterfront and waterways of the municipality, and to acquire, establish, construct, operate and maintain and regulate flood control works, wharves and public landings, warehouses and all adjuncts and facilities for navigation and commerce and the utilization of the waterfront and waterways and adjacent property;
(10) To prohibit the accumulation and require the disposal of garbage, refuse, debris, wastes, ashes, trash and other similar accumulations whether on private or public property;
(11) To construct, establish, acquire, equip, maintain and operate incinerator plants and equipment and all other facilities for the efficient removal and destruction of garbage, refuse, wastes, ashes, trash and other similar matters;
(12) To regulate or prohibit the purchase or sale of articles intended for human use or consumption which are unfit for such use or consumption, or which may be contaminated or otherwise unsanitary;
(13) To prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome;
(14) To regulate the keeping of gunpowder and other combustibles;
(15) To make regulations guarding against danger or damage by fire;
(16) To arrest, convict and punish any individual for carrying about his or her person any revolver or other pistol, dirk, bowie knife, razor, slingshot, billy, metallic or other false knuckles, or any other dangerous or other deadly weapon of like kind or character;
(17) To arrest, convict and punish any person for importing, printing, publishing, selling or distributing any pornographic publications;
(18) To arrest, convict and punish any person for keeping a house of ill fame, or for letting to another person any house or other building for the purpose of being used or kept as a house of ill fame, or for knowingly permitting any house owned by him or her or under his or her control to be kept or used as a house of ill fame, or for loafing, boarding or loitering in a house of ill fame, or frequenting same;
(19) To prevent and suppress conduct and practices which are immoral, disorderly, lewd, obscene and indecent;
(20) To prevent the illegal sale of intoxicating liquors, drinks, mixtures and preparations;
(21) To arrest, convict and punish any individual for driving or operating a motor vehicle while intoxicated or under the influence of liquor, drugs or narcotics;
(22) To arrest, convict and punish any person for gambling or keeping any gaming tables, commonly called "A, B, C," or "E, O," table or faro bank or keno table, or table of like kind, under any denomination, whether the gaming table be played with cards, dice or otherwise, or any person who shall be a partner or concerned in interest, in keeping or exhibiting such table or bank, or keeping or maintaining any gaming house or place, or betting or gambling for money or anything of value;
(23) To provide for the elimination of hazards to public health and safety and to abate or cause to be abated anything which in the opinion of a majority of the governing body is a public nuisance;
(24) To license, or for good cause to refuse to license in a particular case, or in its discretion to prohibit in all cases, the operation of pool and billiard rooms and the maintaining for hire of pool and billiard tables notwithstanding the general law as to state licenses for any such business and the provisions of section four, article thirteen of this chapter; and when the municipality, in the exercise of its discretion, shall have has refused to grant a license to operate a pool or billiard room, mandamus shall does not lie to compel such municipality to grant such the license unless it shall clearly appear appears that the refusal of the municipality to grant such the license is discriminatory or arbitrary; and in the event that the municipality determines to license any such business, the municipality shall have has plenary power and authority, and it shall be is the duty of its governing body to make and enforce reasonable ordinances regulating the licensing and operation of such businesses;
(25) To protect places of divine worship and to preserve peace and order in and about the premises where held;
(26) To regulate or prohibit the keeping of animals or fowls and to provide for the impounding, sale or destruction of animals or fowls kept contrary to law or found running at large;
(27) To arrest, convict and punish any person for cruelly, unnecessarily or needlessly beating, torturing, mutilating, killing or overloading or overdriving, or willfully depriving of necessary sustenance, any domestic animal;
(28) To provide for the regular building of houses or other structures, for the making of division fences by the owners of adjacent premises and for the drainage of lots by proper drains and ditches;
(29) To provide for the protection and conservation of shade or ornamental trees, whether on public or private property, and for the removal of trees or limbs of trees in a dangerous condition;
(30) To prohibit with or without zoning the location of occupied house trailers or mobile homes in certain residential areas;
(31) To regulate the location and placing of signs, billboards, posters, and similar advertising;
(32) To erect, establish, construct, acquire, improve, maintain and operate a gas system, a waterworks system, an electric system, or sewer system and sewage treatment and disposal system, or any combination of the foregoing (subject to all of the pertinent provisions of articles nineteen and twenty of this chapter and particularly to the limitations or qualifications on the right of eminent domain set forth in said articles nineteen and twenty), within or without the corporate limits of the municipality, except that the municipality shall may not erect any such system partly without the corporate limits of the municipality to serve persons already obtaining service from an existing system of the character proposed, and where such the system is by the municipality erected, or has heretofore been so erected, partly within and partly without the corporate limits of the municipality, the municipality shall have has the right to lay and collect charges for service rendered to those served within and those served without the corporate limits of the municipality, and to prevent injury to such the system or the pollution of the water thereof and its maintenance in a healthful condition for public use within the corporate limits of the municipality;
(33) To acquire watersheds, water and riparian rights, plant sites, rights-of-way and any and all other property and appurtenances necessary, appropriate, useful, convenient or incidental to any such system, waterworks or sewage treatment and disposal works, as aforesaid, subject to all of the pertinent provisions of articles nineteen and twenty of this chapter;
(34) To establish, construct, acquire, maintain and operate and regulate markets, and prescribe the time of holding the same;
(35) To regulate and provide for the weighing of articles sold or for sale;
(36) To establish, construct, acquire, maintain and operate public buildings, municipal buildings or city halls, auditoriums, arenas, jails, juvenile detention centers or homes, motor vehicle parking lots, or any other public works;
(37) To establish, construct, acquire, provide, equip, maintain and operate recreational parks, playgrounds and other recreational facilities for public use, and in this connection also to proceed in accordance with the provisions of article two, chapter ten of this code;
(38) To establish, construct, acquire, maintain and operate a public library or museum or both for public use;
(39) To provide for the appointment and financial support of a library board in accordance with the provisions of article one, chapter ten of this code;
(40) To establish and maintain a public health unit in accordance with the provisions of section two, article two, chapter sixteen of this code, which unit shall must exercise its powers and perform its duties subject to the supervision and control of the West Virginia board of health and state department of health;
(41) To establish, construct, acquire, maintain and operate hospitals, sanitaria and dispensaries;
(42) To acquire, by purchase, condemnation or otherwise, land within or near the corporate limits of the municipality for providing and maintaining proper places for the burial of the dead and to maintain and operate the same and regulate interments therein upon such terms and conditions as to price and otherwise as may be determined by the governing body, and, in order to carry into effect such authority the governing body may acquire any cemetery or cemeteries already established;
(43) To exercise general police jurisdiction over any territory without the corporate limits owned by the municipality or over which it has a right-of-way;
(44) To protect and promote the public morals, safety, health, welfare and good order;
(45) To adopt rules for the transaction of business and the government and regulation of its governing body;
(46) Except as otherwise provided, to require and take such bonds from such officers, when deemed necessary, payable to the municipality, in its corporate name, with such sureties and in such penalty as the governing body may see fit, conditioned upon the faithful discharge of their duties;
(47) To require and take from such employees and contractors such bonds in such penalty, with such sureties and with such conditions, as the governing body may see sees fit;
(48) To investigate and inquire into all matters of concern to the municipality or its inhabitants;
(49) To establish, construct, require, maintain and operate such instrumentalities, other than free public schools, for the instruction, enlightenment, improvement, entertainment, recreation and welfare of the municipality's inhabitants as the governing body may deem considers necessary or appropriate for the public interest;
(50) To create, maintain and operate a system for the enumeration, identification and registration, or either, of the inhabitants of the municipality and visitors thereto, or such classes thereof as may be deemed is considered advisable;
(51) To appropriate and expend not exceeding twenty-five cents per capita per annum for advertising the municipality and the entertainment of visitors;
(52) To conduct programs to improve community relations and public relations generally and to expend municipal revenue for such those purposes;
(53) To reimburse applicants for employment by the municipality for travel and other reasonable and necessary expenses actually incurred by such the applicants in traveling to and from such the municipality to be interviewed;
(54) To provide revenue for the municipality and appropriate the same to its expenses;
(55) To create and maintain an employee benefits fund, which shall may not exceed one tenth of one percent of the annual payroll budget for general employee benefits and which shall be set up for the purpose of stimulating and encouraging employees to develop and implement cost-saving ideas and programs, and to expend moneys from such the fund for such purposes;
(56) To enter into reciprocal agreements with governmental subdivisions or agencies of any state sharing a common border for the protection of people and property from fire and for emergency medical services and for the reciprocal use of equipment and personnel for such purposes; and
(57) To regulate the hours during which a private club licensee licensed pursuant to the provisions of article seven, chapter sixty of this code may sell, give or dispense nonintoxicating beer, wine or alcoholic liquors in or on any licensed premises or in any rooms directly connected therewith: Provided, That the regulation may not allow the licensees to sell, give or dispense nonintoxicating beer, wine, or alcoholic liquors during periods of time prohibited by rules promulgated pursuant to section ten, article seven, chapter sixty of this code; and
(57) (58) To provide penalties for the offenses and violations of law mentioned in this section, subject to the provisions of section one, article eleven of this chapter, and such the penalties shall may not exceed any penalties provided in this chapter and chapter sixty-one of this code for like offenses and violations.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

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 considered legally 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;
(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 or during any periods of time proscribed by any municipal ordinance of any municipality in which the licensee may be located;
(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 the private club or a guest of such the 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 or regional jail for a period not to exceed one year, or both fined and imprisoned.

NOTE: The purpose of this bill is to allow municipalities to regulate the hours of operation of private liquor clubs by ordinance. However, the regulation may not allow hours of operation which are in conflict with hours of prohibited operation set by rule by the alcoholic beverage control commissioner.

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