Senate Bill No. 255
(By Senators Helmick and Minard)
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[Introduced January 24, 2006; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §11-16-5 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto three new sections, designated §11-16-5a, §11-16-5b
and §11-16-5c, all relating to the manufacture, sale,
possession, distribution, furnishing or giving away of
nonintoxicating beer contrary to law in unlicensed
establishments; establishing criminal penalties; and
providing similar public nuisance provisions in relation to
beer as there currently exist for liquor.
Be it enacted by the Legislature of West Virginia:
That §11-16-5 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended
by adding thereto three new sections, designated §11-16-5a,
§11-16-5b and §11-16-5c, all to read as follows:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-5. State license required; alcoholic content of beer
manufactured for sale without state.
(a) No person shall manufacture, sell, possess for sale,
transport or distribute,
furnish or give away contrary to law,
nonintoxicating beer except in accordance with the provisions of
this article, and after first obtaining a state license therefor,
as provided in this article. Nothing contained in this article
shall prohibit prohibits any brewer located within the state from
manufacturing or transporting for sale without the state beer of
an alcoholic strength greater than that of nonintoxicating beer.
(b) Any person who violates the provisions of this section
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than twenty-five nor more than five hundred
dollars. Any person who violates the provisions of this section a
second or subsequent time is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five hundred nor
more than one thousand dollars.
§11-16-5a.
Places considered common and public nuisances;
abatement; conspiracy.
(a) A place where nonintoxicating beer is manufactured,
sold, possessed for sale, distributed, furnished or given away
contrary to law, is a common and public nuisance. Boats, cars
(including railroad and traction passenger cars operating in this
state), automobiles, wagons, water and aircraft, beasts of burden, or vehicles of any kind are places within the meaning of
this section and may be proceeded against under the provisions of
section five-b of this article. A person who maintains or aids
or abets or knowingly associates with others in maintaining a
common and public nuisance is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not less than
one hundred nor more than five hundred dollars, or by confinement
in jail not less than sixty days nor more than six months for
each offense, and judgment shall be given that the nuisance be
abated or closed as a place for the manufacture, sale, possession
for sale, distribution, furnishing or giving away, contrary to
law, of nonintoxicating beer, as the court may determine.
(b) If two or more persons conspire to maintain a common and
public nuisance or to manufacture, sell, possess for sale,
distribute, furnish or give away nonintoxicating beer in
violation of any of the provisions of this chapter, and one or
more of those persons do any act to effect the object of the
conspiracy, each of the parties to the conspiracy is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine of not less than one hundred dollars nor more than five
hundred dollars or by confinement in jail for not less than one
month nor more than six months, or in the discretion of the
court, by both such fine and imprisonment.
§11-16-5b. Suits to abate nuisances; injunction.
(a) The Alcohol Beverage Control Commission, its agents, the Attorney General, the prosecuting attorney, or a citizen of the
county or municipality where a nuisance as defined in section
five-a of this article is located, may maintain a suit in equity
in the name of the state to abate and perpetually enjoin the
same. Courts of equity have jurisdiction of the suit. The
injunction may be granted at the commencement of the suit and no
bond is required. On the finding that the material allegations
of the bill are true, the court or judge thereof in vacation
shall order the injunction for any period of time it or he or she
may think proper, with the right to dissolve the injunction upon
the application of the owner of the place, if a proper case is
shown for the dissolution.
(b) The continuance of the injunction as provided in this
section may be ordered, although the place complained of may not
at the time of hearing be unlawfully used.
§11-16-5c. Search warrants.
(a) If there is a complaint on oath or affirmation supported
by affidavit or affidavits setting forth the facts for the belief
that nonintoxicating beer is being manufactured, sold, possessed
for sale, distributed, furnished or given away in a particular
house or other place contrary to law, the magistrate or circuit
court judge thereof, if satisfied that there is a probable cause
for that belief, shall issue a warrant to search the house or
other place for nonintoxicating beer. The warrants, except as
otherwise provided in this section, shall be issued, directed and executed in accordance with the laws of West Virginia pertaining
to search warrants.
(b) Warrants issued under this chapter for the search of any
automobile, boat, conveyance or vehicle, or for the search of any
trunk, grip or other article of baggage, for nonintoxicating
beer, may be executed in any part of the state where the same are
overtaken, and shall be made returnable before any magistrate or
circuit court judge were transported or attempted to be
transported contrary to law.
(c) An officer charged with the execution of a warrant
issued under this section, may, whenever it is necessary, break
open and enter a house or other place described in this article.
NOTE: The purpose of this bill is to
establish criminal
penalties
related to
the manufacture, sale, possession,
distribution, furnishing or giving away of nonintoxicating beer
contrary to law in unlicensed establishments and providing
similar public nuisance provisions in relation to beer as there
currently exists for liquor.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§11-16-5a, 5b and 5c are new; therefore, strike-throughs
and underscoring have been omitted.