H. B. 4603
(By Delegates D. Poling, Caputo, Brown, Butcher, Hamilton, Barill and Ellem)
[Introduced February 17, 2012; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §11-16-18 of the Code of West Virginia, 1931, as amended; and to amend and reenact §60-6-8 of said code, all relating to prohibiting the sale of beer and wine at self-scan registers with application of current penalties associated with other offenses of retail licensees of nonintoxicating beer, beer and wine.
Be it enacted by the Legislature of West Virginia:
That §11-16-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §60-6-8 of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-18. Unlawful acts of licensees; criminal penalties.
(a) It shall be unlawful:
(1) For any a licensee, his, her, its or their servants, including his or her agents or employees, to sell, give or dispense or any individual to drink or consume, for a person to drink in or on any licensed premises or in any rooms directly connected therewith, connecting rooms, nonintoxicating beer or cooler on weekdays between the hours of two o’clock a.m. and seven o’clock a.m. or on weekdays, including Saturdays, and between the hours of two o’clock a.m. and one o’clock p.m., on any Sunday, Sundays 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 a licensee, his her, its or their servants, including his or her agents or employees, to sell, furnish or give any nonintoxicating beer as defined in this article to any a person visibly or noticeably intoxicated or to any a person known to be insane or known to be a an habitual drunkard;
(3) For any a licensee, his, her, its or their servants, including his or her agents or employees, to sell, furnish or give any nonintoxicating beer as defined in this article to any a person who is less than twenty-one years of age;
(4) For any a distributor to sell or offer to sell or any a retailer to purchase or receive any nonintoxicating beer as defined in this article, except for cash. and No right of action shall exist exists to collect any claims for credit extended contrary to the provisions of this subdivision. Nothing herein contained shall prohibit prohibits 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 a purchaser the amount paid or deposited for the containers when title is retained by the vendor. Provided, That A distributor may accept an electronic transfer of funds if the transfer of funds is initiated by an irrevocable payment order on the invoiced amount for the nonintoxicating beer. The cost of the electronic fund transfer shall be is borne by the retailer and the distributor must initiate the transfer no later than noon of one business day after the delivery;
(5) For any a 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 a retail licensee on Sunday;
(6) For any a 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 a 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 prohibits a brewer from sponsoring any professional or amateur athletic event or from providing prizes or awards for participants and winners in any events Provided, however, except that no event shall may be sponsored which permits actual participation by athletes or other persons who are minors, unless specifically authorized by the commissioner;
(7) For any a licensee to permit in his or her premises any lewd, immoral or improper entertainment, conduct or practice in his or her premises;
(8) For any a 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, to possess a federal license, tax receipt or other permit entitling, authorizing or allowing the licensee to sell liquor or alcoholic drinks other than nonintoxicating beer;
(9) For any a licensee to obstruct the view of the interior of his or her premises by enclosure, lattice, drapes or any means which would prevent plain view of the patrons occupying the premises. The interior of all licensed premises shall be adequately lighted at all times. Provided, That Provisions of this subdivision do 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;
(10) For any a 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 a 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 This prohibition is not 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 or to a private wine restaurant licensed under the provisions of article eight of said chapter insofar as the private wine restaurant is authorized to serve wine;
(11) For any a 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 a 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 where the business is located Provided, That No licensee may have in connection with his or her place of business any a loudspeaker located on the outside of the licensed premises that broadcasts or carries music of any kind;
(13) For any a person whose license has been revoked, as provided in this article, to obtain employment with any a retailer within the period of one year from the date of the revocation or for any a retailer to knowingly employ that person within the specified time;
(14) For any a distributor to sell, possess for sale, transport or distribute nonintoxicating beer except in the original container;
(15) For any a licensee to knowingly permit any an act to be done upon the licensed premises the commission of which constitutes a crime under the laws of this state;
(16) For any a Class B retailer to permit the consumption of nonintoxicating beer upon his or her licensed premises;
(17) For any a Class A licensee, his, her, its or their servants, including his or her agents or employees, or for any a licensee, by or through any servants, including his or her agents or employees, to allow suffer or permit any a person less than eighteen years of age to loiter in or upon any licensed premises. except, however, that The provisions of this subdivision do not apply where a person under the age of eighteen years is in or upon the premises in the immediate company of his or her parent or parents; or where and while a person under the age of eighteen years is in or upon the premises for the purpose of and actually making a lawful purchase of any items or commodities items 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 the premises;
(18) For any a distributor to sell, offer for sale, distribute or deliver any nonintoxicating beer outside the territory assigned to any a distributor by the brewer or manufacturer of nonintoxicating beer or to sell, offer for sale, distribute or deliver nonintoxicating beer to any a retailer whose principal place of business or licensed premises is within the assigned territory of another distributor of such the nonintoxicating beer. Provided, That Nothing herein is considered to prohibit Nothing herein prohibits sales of convenience between distributors licensed in this state wherein one distributor sells, transfers or delivers to another distributor a particular brand or brands for sale at wholesale; and
(19) For any a licensee or any an agent, servant or employee of any a licensee to knowingly violate any rule lawfully promulgated by the commissioner in accordance with the provisions of chapter twenty-nine-a of this code; and
(20) For a licensee to sell nonalcoholic beer by means of a self-scanning cash register or electronic cash register capable of recovering stored information related to the sale price of individual retail items and operated on a self-service basis by a consumer.
(b) Any A person who violates any provision of this article including, but not limited to, any provision of this section or any rule or order lawfully promulgated by the commissioner, or who makes any a false statement concerning any material fact in submitting application for license or for a renewal of a license or
in any a hearing concerning the revocation thereof, or who commits any of the acts herein declared to be unlawful, is guilty of a misdemeanor and, upon conviction thereof, shall be punished for each offense by a fine of fined not less than twenty-five $25 nor more than $500, or confined in the county or regional jail for not less than thirty days nor more than six months, or by both fine and confinement. confined. 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) A Class B licensee that:
(A) Has installed a transaction scan device on its licensed premises; and
(B) Can demonstrate that it requires each employee, servant or agent to verify the age of any individual individuals to whom nonintoxicating beer is sold, furnished or given away by the use of the transaction device may not be subject to the following:
(i) Any criminal penalties whatsoever, including those set forth in subsection (b) of this section;
(ii) Any administrative penalties from the commissioner; or (iii) Any civil liability whatsoever for the improper sale, furnishing or giving away of nonintoxicating beer to an individual who is less than twenty-one years of age. by one of his or her employees, servants or agents. Any
(2) An agent, servant or employee who has improperly sold, furnished or given away nonintoxicating beer to an individual less than twenty-one years of age is subject to the criminal penalties of subsection (b) of this section. Any An agent, servant or employee who has improperly sold, furnished or given away nonintoxicating beer to an individual less than twenty-one years of age is subject to termination from employment and the employer shall have has no civil liability for the termination.
(2) (3) For purposes of this section, a Class B licensee can demonstrate that it requires each employee, servant or agent to verify the age of any individual individuals to whom nonintoxicating beer is sold by providing evidence that:
(A) That It has developed a written policy which requires requiring each employee, servant or agent to verify the age of each individual to whom nonintoxicating beer will be sold, furnished or given away;
(B) that It has communicated this policy to each employee, servant or agent; and
(C) that It monitors the actions of its employees, servants or agents regarding the sale, furnishing or giving away of nonintoxicating beer and that it has taken corrective action for any discovered noncompliance with this policy.
(3) (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 other governmental identity card.
(d) Nothing in this article nor any rule or regulation of the commissioner shall prevent or be considered to prohibit any prohibits a licensee from employing any a person who is at least eighteen years of age to serve in the 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 the person's duties may so long as the person’s duties do not include the sale or delivery of nonintoxicating beer or alcoholic liquors Provided, however, That and the authorization to employ persons under the age of eighteen years shall be is clearly indicated on the licensee’s license.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-8. Unlawful sale or possession by licensee.
A licensed person shall not:
(1) Sell alcoholic liquors of a kind other than that which such license or this chapter authorizes him or her to sell;
(2) Sell beer to which wine, spirits, or alcohol has been added;
(3) Sell wine to which other alcoholic spirits have been added otherwise other than as required in the manufacture thereof under regulations of the commission;
(4) Sell alcoholic liquors to a person specified in section twenty-two, article three of this chapter;
(5) Sell alcoholic liquors except as authorized by his or her license;
(6) Sell any alcoholic liquor when forbidden by the provisions of this chapter;
(7) Keep on the premises covered by his or her license alcoholic liquor other than that which he or she is authorized to sell by such license or by this chapter; or
(8) Sell beer or wine by means of a self-scanning cash register or electronic cash register capable of recovering stored information related to the sale price of individual retail items and operated on a self-service basis by a consumer.
A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500, or confined in jail not less than thirty days nor more than one year, or both such fine and imprisonment for the first offense. and confined. Upon conviction of a second or subsequent offense, the court may in its discretion impose a penalty of confinement in the penitentiary a correctional facility for a period not to exceed three years except that this discretion does not apply to the sale of beer or wine by means of a self-scanning or electronic cash register as described in this section.
NOTE: The purpose of this bill is to prohibit the sale of beer and wine at self-scan registers and to apply penalties associated with other offenses of retail licensees of nonintoxicating beer, beer and wine.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.