H. B. 4383

(By Delegates Fleischauer, Marshall, Mahan,
Manuel, Amores, Smirl and Craig)

[Introduced February 4, 2002 ; referred to the

Committee on the Judiciary.]

A BILL to amend and reenact sections four and twelve, article seven, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to requiring the alcohol beverage control commissioner to propose legislative rules designed to define and distinguish between establishments whose gross business receipts for food consumed on the premises are less than sixty percent relative to sales of alcoholic beverages for consumption on the premises and those whose gross receipts are greater than sixty percent; prohibiting persons under the age of twenty-one from entering establishments whose gross receipts for food consumed on the premises are less than sixty percent relative to sales of alcohol; and subjecting licensees to a criminal penalty for allowing under-aged persons on their premises in violation of the prohibition prescribed by the law.

Be it enacted by the Legislature of West Virginia:
That sections four and twelve, article seven, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:

§60-7-4. Application for license; information required; verification; application to be accompanied by fees; bond; college fraternities and sororities ineligible for license; racial discrimination by applicants.

(a) Application for a license to operate a private club shall be made on such form as may be prescribed by the commissioner and shall include:
(1) The name of the applicant;
(2) If such applicant be an unincorporated association, the names and addresses of the members of its governing board;
(3) If such applicant be a corporation, the names and addresses of its officers and directors;
(4) The place at which such applicant will conduct its operations and whether the same is owned or leased by the applicant;
(5) The number of members of the applicant;
(6) The name or names of any national organizations with which applicant is affiliated and the nature of such affiliation;
(7) The size and nature of the dining and kitchen facilities operated by applicant

; and
(8) Such other information as the commissioner may reasonably require which shall include, but not be limited to, the criminal records, if any, of each member of the applicant's governing board and/or its officers and directors who have been convicted of a felony or a crime involving moral turpitude.
(b) Such application shall be verified by each member of the governing board of the applicant if an unincorporated association or, if the applicant be a corporation, by each of its officers and all members of its board of directors. Such application shall be accompanied by the license fee hereinafter prescribed and by a bond of the applicant in the penal sum of five thousand dollars with a corporate surety authorized to transact business in the state of West Virginia, payable to the state of West Virginia, which bond shall be conditioned on the payment of all fees herein prescribed and on the faithful performance of and compliance with the provisions of this article.
(c) Under no circumstance shall any college fraternity or sorority be issued a license to operate a private club.
(d) No license to operate a private club will be issued to applicants who discriminate against any person or group of persons because of race or color of such person or group of persons except clubs as defined in clauses (1) and (2), subdivision (a), section two of this article.
(e) Beginning the first day of July, two thousand three, every license issued under this section shall bear a classification designating the licensed premises as either an establishment in which persons under the age of twenty-one years may be allowed on the premises or an establishment in which persons younger than twenty-one years may not be allowed on the premises. The classification shall be determined based on whether the gross receipts received for food consumed on the premises by a licensee in a calender year amount to less than sixty percent of the total receipts relative to sales of alcoholic beverages consumed on the premises. In the event a licensee's gross receipts for food consumed on the premises amount to less than sixty percent relative to sales of alcoholic beverages consumed on the premises within a calender year the licensee may not permit persons younger than twenty-one years of age on the premises in the succeeding calender year. Any licensee may, at the conclusion of a calender year, apply for a different classification for the next calender year from that in which the current classification was determined. In the event of such application the commissioner shall provide a reclassification upon the presentation of sufficient proof that the gross receipts in the concluded or near concluded calender year, were comprised of a different ratio of gross receipts involving food sales and alcoholic beverage sales that would justify the reclassification.

§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 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;
(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) It is unlawful for any licensee whose establishment has been classified as an establishment in which persons younger than twenty-one years of age are not permitted, in accordance with subsection (e), section seven of this article, to permit such persons on the premises.
(c) (d) 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.

NOTE: The purpose of this bill is to

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