H. B. 2109

         (By Delegate Ennis)

         [Introduced January 12, 2011; referred to the

         Committee on the Judiciary.]

A BILL to amend and reenact §60-7-12 of the Code of West Virginia, 1931, as amended, relating to the creation of an affirmative defense for certain civil and criminal actions arising from the sale of alcoholic liquors, wine and nonintoxicating beer by licensed private clubs to persons less than the age of twenty-one whose age is verified by use of scanner technology.

Be it enacted by the Legislature of West Virginia:

    That §60-7-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 7. LICENSES TO PRIVATE CLUBS.

§60-7-12. Certain acts of licensee prohibited; criminal penalties.

    (a) It is unlawful for any licensee, or its 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 directly connected 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 with the intent to defraud;

    (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 at the premises.

    (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 $500 nor more than $1,000, or imprisoned confined in the county jail for a period not to exceed one year, or both fined and imprisoned confined.

    (d) In the absence of fraud, malice, bad faith, or wanton or reckless action, it is a defense to a violation of either or both subdivision (3) or subdivision (6) of subsection (a) of this section, if the licensee, agent, or employee shows that:

    (1) Scanner technology as defined in and authorized by section twenty-two, article two of this chapter was used to verify the age of the purchaser at the time of the purchase;

    (2) Scanner technology indicated that the driver’s license or identification card was valid;

    (3) The driver’s license or identification card stated that the purchaser was at least twenty-one years of age; and

    (4) The purchaser appeared to match the physical description or picture on the driver’s license or identification card.

    NOTE: The purpose of this bill is to provide a defense to licensees civilly or criminally charged with selling alcoholic liquors, nonintoxicating beer or wine to minors when the licensees have responsibly used scanner technology to verify age.

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