Senate Bill No. 718

(By Senators Wooton, Burnette, Hunter, Kessler,

Mitchell, Redd, Ross, Rowe and Deem)

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[Originating in the Committee on the Judiciary;


reported February 25, 2002.]

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A BILL to amend and reenact section four-a, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section eighteen, article sixteen of said chapter; to amend and reenact sections two and seven, article nine-a, chapter sixteen of said code; to amend article three-a, chapter sixty of said code by adding thereto a new section, designated section twenty-five-a; and to amend and reenact section twenty, article eight of said chapter, all relating to the sale of tobacco products, alcohol, wine and beer to minors; providing that registration for license to sell tobacco products set forth each location of sales; expanding types of tobacco products subject to license requirements; modifying tobacco sales penalties; mandating carding of all purchasers of tobacco products, alcohol, wine and beer of persons under the age of twenty- seven; authorizing assessment of enforcement processing fees against retailers for failure to card purchasers of tobacco products, beer, wine or alcohol; limiting the use of information derived from the use of transaction scan devices; requiring that notification of convictions be given to commissioner of alcohol beverage control administration; authorizing the commissioner of the alcohol beverage control administration and the state tax commissioner to propose legislative rules and emergency rules; creating absolute defenses for criminal and enforcement actions based on the unlawful sale of alcohol, beer, wine and tobacco products; providing for deposits of enforcement processing fees; and defining terms.

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

ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-4a. Sellers of cigarettes, tobacco products or cigarette wrappers required to be licensed; business registration certificate is license; criminal penalties.

(a) For registration years beginning on or after the first day of July, two thousand, each person who sells cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail shall apply for and receive a license to sell cigarettes or other tobacco products or cigarette wrappers. The cigarette license application shall be a part of the business registration certificate application or the renewal application for a business registration certificate and shall set forth each location where cigarettes or other tobacco products are to be sold.
(b) The license shall be printed on the business registration certificate or certificates issued under the provisions of subsection (a), section four of this article.
(c) Any person or company who sells any cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail after the first day of July, two thousand one, without obtaining the license specified in subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than two hundred fifty dollars.
(d) For registration years beginning on or after the first day of July, two thousand two, the term "tobacco products" shall include cigars, snuff, chewing tobacco or tobacco product, in any form or any pipes, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product, as well as cigarettes and cigarette wrappers and tobacco products of any kind.
ARTICLE 16. NONINTOXICATING BEER.
§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 or known to be a 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 sixty, 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 sixty;
(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 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 Except for a violation of subsection (c) of this section, 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)(1) No individual, firm, corporation or business entity may sell or give for a commercial purpose to another under the age of twenty-seven any non-intoxicating beer, as defined in section three, article sixteen, chapter eleven of this code, without first verifying the age of the person purchasing or receiving such product or products by requiring the presentation of a valid West Virginia driver's license or other photographic identification issued by this state, another state or the United States government, or a passport of a foreign government or similar identification issued by a governmental entity. Such identification shall not be required from an individual whom the person selling or giving the product has reasonable cause to believe is at least twenty-seven years of age. As used in this subsection, "reasonable cause" means having enough information as would lead an ordinarily prudent person to believe that the person in question is at least twenty-seven years of age.
(2) Any individual, firm, corporation or business entity that violates the provisions of this subsection may be assessed an enforcement processing fee by the commissioner of the alcohol beverage control administration in an amount no greater than twenty-five dollars for each violation: Provided, That in any enforcement action pursuant to the provisions of this subsection, it shall be an absolute defense that the individual to whom the non-intoxicating beer was sold or given was at least twenty-one years of age.
(3) The requirements of subdivision (1) of this subsection may be satisfied by the performance of a transaction scan that verifies the age of the cardholder if it is shown that the individual selling or giving the non-intoxicating beer acted reasonably to determine that the purchaser or recipient of the product was the person identified on the identification card.
(4) "Transaction scan" means the process by which a person checks by means of a transaction scan device the age and identity of the cardholder, and "transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information enclosed on the magnetic strip or bar code of a driver's license or identity card.
(5) Information from a transaction scan may not be used or released for any purpose other than to verify compliance or noncompliance with the provisions of this article.
(6) In any administrative enforcement action by the commissioner of the alcohol beverage control administration or criminal action arising out of the sale of nonintoxicating beer to an individual under the age of twenty-one years, it shall be an absolute defense that the individual, firm, corporation or business entity complied with the provisions of this subsection by requesting and being shown a qualifying photographic identification showing the person receiving the nonintoxicating beer to be at least twenty-one years of age.
(7) In determining whether an individual, firm, corporation or business entity has proven the absolute defense provided by subdivision six of this subsection, the trier of fact shall consider whether the person delivering the nonintoxicating beer product on a commercial basis acted reasonably to determine whether the description and picture appearing on the driver's license or identity card presented by the cardholder is that of the cardholder.
(c) (d) 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.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, or chewing tobacco to persons under eighteen penalties for first and subsequent offense; licensing penalties for failure to obtain license.

(a) No person individual, firm, corporation or business entity may sell, give or furnish, or cause to be sold, given or furnished, to any person under the age of eighteen years:
(1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product; or
(2) Any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form.
(b) Any firm, or corporation or business entity that violates any of the provisions of subdivision (1) or (2), subsection (a) of this section and any individual who violates any of the provisions of subdivision (1), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined twenty-five fifty dollars for the first offense. Upon any subsequent violation at the same location or operating unit, the individual, firm, corporation, or licensee business entity shall be fined as follows: At least one hundred dollars but not more than two hundred dollars for the second offense, if it occurs within two years of the first conviction; at least two hundred fifty dollars but not more than five hundred dollars for the third offense, if it occurs within two years of the first conviction; at least two hundred fifty dollars but not more than five hundred dollars for the fourth offense, if it occurs within five years of the first conviction; and at least one thousand dollars but not more than five thousand dollars for the fifth and any subsequent offenses, if the fifth or subsequent offense occurs within five years of the first conviction.
(c) Any individual who knowingly and intentionally sells, gives or furnishes or causes to be sold, given or furnished to any person under the age of eighteen years any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form, is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than one hundred dollars; upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall be fined not less than one hundred nor more than five hundred dollars.
(d) Any individual who is not at least eighteen years of age and who, with or without the use of false identification, attempts to have an individual, firm, corporation or business entity sell or give to him or her on a commercial basis any tobacco product, as defined in section four-a, article twelve, chapter eleven of this code, is guilty of a misdemeanor and, upon conviction thereof shall for the first violation be fined twenty-five dollars and be required to serve eight hours of community service; for a second violation, the person shall be fined fifty dollars and be required to serve sixteen hours of community service; and for a third and each subsequent violation, the person shall be fined one hundred dollars and be required to serve twenty-four hours of community service. Notwithstanding the provisions of section two, article five, chapter forty-nine of this code, the magistrate court shall have concurrent jurisdiction.
(e) No individual, firm, corporation or business entity may sell or give for a commercial purpose to another under the age of twenty-seven any tobacco product as defined in section four-a, article twelve, chapter eleven of this code without first verifying the age of the person purchasing or receiving such product or products by requiring the presentation of a valid West Virginia driver's license or other photographic identification issued by this state, another state or the United States government, or a passport of a foreign government or similar identification issued by a governmental entity. Such identification shall not be required from an individual whom the person selling or giving the product has reasonable cause to believe is at least twenty-seven years of age. As used in this subsection "reasonable cause" means having enough information as would lead an ordinarily prudent person to believe that the person in question is at least twenty- seven years of age.
(f) Any individual, firm, corporation or business entity that violates the provisions of subsection (e) of this section may be assessed an enforcement processing fee by the commissioner of the alcohol beverage control administration in an amount no greater than twenty-five dollars for each violation: Provided, That in any enforcement action pursuant to the provisions of subsection (e) of this section, it shall be an absolute defense that the individual to whom the tobacco product was sold or given was at least eighteen years of age.
(g) The requirements of subsection (e) may be satisfied by the performance of a transaction scan that verifies the age of the cardholder if it is shown that the individual selling or giving the tobacco product acted reasonably to determine that the purchaser or recipient of the tobacco product was the person identified on the identification card.
(1) "Transaction scan" means the process by which a person checks by means of a transaction scan device the age and identity of the cardholder, and "transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information enclosed on the magnetic strip or bar code of a driver's license or identity card.
(2) Information from a transaction scan may not be used or released for any purpose other than to verify compliance or noncompliance with the provisions of this article.
(h) The products listed in subsection (a) of this section may be sold from vending machines without meeting the identification requirements of subsection (e) of this section if the machine is operated in compliance with the provisions of section eight of this article and notice is posted on the machine in a conspicuous manner and place indicating that the purchase and possession of tobacco products by minors is illegal.
(i)(1) In any criminal action for a violation of subsection (a), (b) or (c) of this section or any administrative enforcement action by the commissioner of the alcohol beverage control administration arising out of the sale of a tobacco to an individual under the age of eighteen years, it shall be an absolute defense that the individual, firm, corporation or business entity complied with the provisions of subsection (e) of this section by requesting and being shown a qualifying photographic identification showing the person receiving the tobacco product to be at least eighteen years of age.
(2) In determining whether an individual, firm, corporation or business entity has proven the absolute defense provided by subdivision (1) of this subsection, the trier of fact shall consider whether the person delivering the tobacco product on a commercial basis acted reasonably to determine whether the description and picture appearing on the driver's license or identity card presented by the cardholder is that of the cardholder.
(j) The commissioner of the alcohol beverage control administration and the state tax department shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code and emergency rules providing procedures for suspending, revoking, denying or refusing to renew the license required by the provisions of section four-a, article twelve, chapter eleven of this code for any location at which a violation of this section occurs. The rules shall specify reasons for which a license may not be issued or renewed and reasons for which a license to sell tobacco products may be suspended, revoked, denied or refused to renew at any location selling tobacco products for violation of this article: Provided, That only convictions for violations of subsections (a), (b) or (c) of this section and actual administrative violations arising out of the sale of a tobacco product to an individual under the age of eighteen years may be considered as grounds for any action affecting the license of a retailer to sell tobacco products: Provided, however, That the rules may only be applied to affect the license of the retail location at which a violation is committed and may not be applied to affect any location operated by a single business entity as a result of a violation or violations occurring at other retail locations owned by that entity.
(k) The clerk of a court shall notify the commissioner of the alcohol beverage control administration within five days that a judgment of conviction for the offenses set forth in subsections (a), (b) or (c) of this section has been entered.
(l) The commissioner of the alcohol beverage control administration shall deposit enforcement processing fees collected pursuant to this section into the operating fund created in article three, chapter sixty of this code to be used to defray the costs of administering and enforcing the provisions of this section.
§16-9A-7. Enforcement of youth smoking laws; retail tobacco outlet inspections; use of minors in inspections; annual reports; penalties; defenses.

(a) The commissioner of the West Virginia alcohol beverage control administration, the superintendent of the West Virginia state police, the sheriffs of the counties of this state and the chiefs of police of municipalities of this state, may periodically conduct unannounced inspections at locations where tobacco products are sold or distributed to ensure compliance with the provisions of sections two and three of this article and in such manner as to conform with applicable federal and state laws, rules and regulations. Persons under the age of eighteen years may be enlisted by such commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof to test compliance with these sections: Provided, That the minors may be used to test compliance only if the testing is conducted under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and written consent of the parent or guardian of such person is first obtained and such minors shall not be in violation of section three of this article and chapter when acting under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and with the written consent of the parent or guardian. It is unlawful for any person to use persons under the age of eighteen years to test compliance in any manner not set forth herein and the person so using a minor is guilty of a misdemeanor and, upon conviction thereof, shall be fined the same amounts as set forth in subsection (c), section two of this article.
(b) A person charged with a violation of section two or three of this article as the result of an inspection under subsection (a) of this section has a complete defense if, at the time the cigarette or other tobacco product or cigarette wrapper was sold, delivered, bartered, furnished or given:
(1) The buyer or recipient falsely evidenced that he was eighteen years of age or older; and or
(2) The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be eighteen years of age or older; and
(3) Such person carefully checked a driver's license or an identification card issued by this state or another state of the United States, a passport or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was eighteen years of age or older.
(2) The person complied with the requirements of subsection (e), section two of this article: Provided, That if a transaction scan device was used, the individual acted reasonably to determine whether the description and picture appearing on the driver's license or identity card presented by the cardholder was that of the cardholder.
(c) Any fine collected after a conviction of violating section two of this article shall be paid to the clerk of the court in which the conviction was obtained: Provided, That the clerk of the court upon receiving the fine shall promptly notify the commissioner of the West Virginia alcohol beverage control administration of the conviction and the collection of the fine: Provided, however, That any community service penalty imposed after a conviction of violating section three of this article shall be recorded by the clerk of the court in which the conviction was obtained: Provided further, That the clerk of the court upon being advised that community service obligations have been fulfilled shall promptly notify the commissioner of the West Virginia alcohol beverage control administration of the conviction and the satisfaction of imposed community service penalty.
(d) The commissioner of the West Virginia alcohol beverage control administration or his or her designee shall prepare and submit to the governor on the last day of September of each year a report of the enforcement and compliance activities undertaken pursuant to this section and the results of the same, with a copy to the secretary of the West Virginia department of health and human resources. The report shall be in the form and substance that the governor shall submit to the applicable state and federal programs.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-25a. Mandatory verification of age of persons purchasing alcohol.

(a) No individual, firm, corporation or business entity may sell or give for a commercial purpose to another under the age of twenty-seven any alcoholic liquor without first verifying the age of the person purchasing or receiving such product by requiring the presentation of a valid West Virginia driver's license or other photographic identification issued by this state, another state or the United States government, or a passport of a foreign government or similar identification issued by a governmental entity. Such identification shall not be required from an individual whom the person selling or giving the product has reasonable cause to believe is at least twenty-seven years of age. As used in this subsection, "reasonable cause" means having enough information as would lead an ordinarily prudent person to believe that the person in question is at least twenty-seven years of age: Provided, That the age verification provisions of this subsection do not apply to sales in the licensed premises by a holder, or the holder's employees, of a license for a private club issued under article seven of this chapter.
(b) The requirements of subsection (a) may be satisfied by the performance of a transaction scan that verifies the age of the cardholder if it is shown that the individual selling or giving the alcoholic liquor acted reasonably to determine that the purchaser or recipient of the tobacco product was the person so identified on the identification card.
(1) "Transaction scan" means the process by which a person checks by means of a transaction scan device the age and identity of the cardholder, and "transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information enclosed on the magnetic strip or bar code of a driver's license or identity card.
(2) Information from a transaction scan may not be used or released for any purpose other than to verify compliance or noncompliance of the licensee with the provisions of this article.
(c)(1) In any administrative enforcement action by the commissioner of the alcohol beverage control administration or criminal action arising out of the sale of a alcoholic liquor to an individual under the age of twenty-one years, it shall be an absolute defense that the individual, firm, corporation or business entity complied with the provisions of subsection (a) of this section by requesting and being shown a qualifying photographic identification showing the person receiving the alcoholic liquor product to be at least twenty-one years of age.
(2) In determining whether an individual, firm, corporation or business entity has proven the absolute defense provided by subdivision (1) of this subsection, the trier of fact shall consider whether the person delivering the alcoholic liquor on a commercial basis acted reasonably to determine whether the description and picture appearing on the driver's license or identity card presented by the cardholder is that of the cardholder.
(d) Any individual, firm, corporation or business entity that violates the provisions of subsection (a) of this section may be assessed an enforcement processing fee in an amount no greater than twenty-five dollars for each violation: Provided, That in any enforcement action pursuant to the provisions of subsection (a) of this section, it shall be an absolute defense that the individual to whom the alcoholic liquor was sold or given was at least twenty-one years of age.
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; : Provided, That the provisions of section twenty-five-a, article three-a of this chapter shall apply to sales of wine.
(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.