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Introduced Version - Originating in Committee Senate Bill 785 History

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sb785 org
Senate Bill No. 785

(By Senators Kessler, Hunter, Jenkins, Stollings, White,

Barnes, Caruth, Deem, Hall and Yoder)

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[Originating in the Committee on the Judiciary;

reported February 22, 2008.]

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A BILL to amend and reenact §11-16-19 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-1-4 of said code, all relating to changing the use of alcoholic beverages by minors from a status offense to a juvenile delinquent offense.

Be it enacted by the Legislature of West Virginia:
That §11-16-19 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §49-1-4 of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.
§11-16-19. Unlawful acts of persons; criminal penalties.

(a) (1) Any person eighteen or over, but under the age of twenty-one years, who purchases, consumes, sells, possesses or serves nonintoxicating beer is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed five hundred dollars or shall be incarcerated in jail for a period not to exceed seventy-two hours, or both fined and imprisoned or, in lieu of such fine and incarceration, may, for the first offense, be placed on probation for a period not to exceed one year. Any person under the age of eighteen years who purchases, consumes, sells, possesses or serves nonintoxicating beer is guilty of a status offense as that term is defined in section four, article one, chapter forty-nine of this code and, upon adjudication therefor, shall be referred to the Department of Health and Human Resources for services, as provided in section eleven, article five of said chapter.
(2) Nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be deemed to prohibit any person who is at least eighteen years of age from serving in the lawful employment of any licensee, which may include the sale or delivery of nonintoxicating beer as defined in this article. Further, nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be deemed to prohibit any person who is less than eighteen but at least sixteen years of age from being employed by 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: Provided, That such person shall not sell or deliver nonintoxicating beer.
(3) Nothing in this subsection shall prohibit a person who is at least eighteen years of age from purchasing or possessing nonintoxicating beer when he or she is acting upon the request of or under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia Alcohol Beverage Administration while the agency is conducting an investigation or other activity relating to the enforcement of the alcohol beverage control statutes and the rules of the commissioner.
(b) Any person under the age of twenty-one years who, for the purpose of purchasing nonintoxicating beer, misrepresents his or her age or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own or who illegally attempts to purchase nonintoxicating beer is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed fifty dollars or shall be imprisoned in jail for a period not to exceed seventy-two hours, or both such fine and imprisonment or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.
(c) Any person who shall knowingly buy for, give to or furnish nonintoxicating beer to anyone under the age of twenty-one to whom they are not related by blood or marriage is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one hundred dollars or shall be imprisoned in jail for a period not to exceed ten days, or both such fine and imprisonment.
(d) (1) Any person who at any one time transports into the state for their personal use, and not for resale, more than six and seventy-five hundredths gallons of nonintoxicating beer, upon which the West Virginia barrel tax has not been imposed, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one hundred dollars and have all the untaxed nonintoxicating beer in their possession at the time of the arrest confiscated, or imprisoned for ten days in jail, or both fined and imprisoned.
(2) If the Congress of the United States repeals the mandate established by the Surface Transportation Assistance Act of 1982 relating to national uniform drinking age of twenty-one as found in section six of Public Law 98-363, or a court of competent jurisdiction declares the provision to be unconstitutional or otherwise invalid, it is the intent of the Legislature that the provisions contained in this section and section eighteen of this article which prohibit the sale, furnishing, giving, purchase or ownership of nonintoxicating beer to or by a person who is less than twenty-one years of age shall be null and void and the provisions therein shall thereafter remain in effect and apply to the sale, furnishing, giving, purchase or ownership of nonintoxicating beer to or by a person who is less than nineteen years of age.
CHAPTER 49. CHILD WELFARE.

ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private, to receive children for care and maintenance or for placement in residential care facilities or any facility that provides care for unmarried mothers and their children;
(2) "Child advocacy center" means a community-based organization that is a member in good standing with the West Virginia Child Abuse Network, Inc., and is working to implement the following program components:
(A) Child-appropriate/child-friendly facility: A child advocacy center provides a comfortable, private, child-friendly setting that is both physically and psychologically safe for clients;
(B) Multidisciplinary team (MDT): A multidisciplinary team for response to child abuse allegations includes representation from the following: Law enforcement; child protective services; prosecution; mental health; medical; victim advocacy; child advocacy center;
(C) Organizational capacity: A designated legal entity responsible for program and fiscal operations has been established and implements basic sound administrative practices;
(D) Cultural competency and diversity: The child advocacy center promotes policies, practices and procedures that are culturally competent. Cultural competency is defined as the capacity to function in more than one culture, requiring the ability to appreciate, understand and interact with members of diverse populations within the local community.
(E) Forensic interviews: Forensic interviews are conducted in a manner which is of a neutral, fact-finding nature, and coordinated to avoid duplicative interviewing;
(F) Medical evaluation: Specialized medical evaluation and treatment are to be made available to child advocacy center clients as part of the team response, either at the child advocacy center or through coordination and referral with other specialized medical providers;
(G) Therapeutic intervention: Specialized mental health services are to be made available as part of the team response, either at the child advocacy center or through coordination and referral with other appropriate treatment providers;
(H) Victim support/advocacy: Victim support and advocacy are to be made available as part of the team response, either at the child advocacy center or through coordination with other providers, throughout the investigation and subsequent legal proceedings;
(I) Case review: Team discussion and information sharing regarding the investigation, case status and services needed by the child and family are to occur on a routine basis;
(J) Case tracking: Child advocacy centers must develop and implement a system for monitoring case progress and tracking case outcomes for team components: Provided, That a child advocacy center may establish a safe exchange location for children and families who have a parenting agreement or an order providing for visitation or custody of the children that require a safe exchange location;
(3) "Community based", when referring to a facility, program, or service, means located near the juvenile's home or family and involving community participation in planning, operation and evaluation and which may include, but is not limited to, medical, educational, vocational, social and psychological guidance, training, special education, counseling, alcoholism and any treatment and other rehabilitation services;
(4) "Court" means the circuit court of the county with jurisdiction of the case or the judge thereof in vacation unless otherwise specifically provided;
(5) "Custodian" means a person who has or shares actual physical possession or care and custody of a child, regardless
of whether such person has been granted custody of the child by
any contract, agreement or legal proceedings;
(6) "Department" or "state department" means the state
Department of Health and Human Resources;
(7) "Division of Juvenile Services" means the division within the Department of Military Affairs and Public Safety pursuant to article five-e of this chapter;
(8) "Guardian" means a person who has care and custody of a child as a result of any contract, agreement or legal proceeding;
(9) "Juvenile delinquent" means a juvenile who has been adjudicated as one who commits an act which would be a crime under state law or a municipal ordinance if committed by an adult;
(10) "Nonsecure facility" means any public or private residential facility not characterized by construction fixtures designed to physically restrict the movements and activities of individuals held in lawful custody in such facility and which provides its residents access to the surrounding community with supervision;
(11) "Referee" means a juvenile referee appointed pursuant to section one, article five-a of this chapter, except that in any county which does not have a juvenile referee, the judge or judges of the circuit court may designate one or more magistrates of the county to perform the functions and duties which may be performed by a referee under this chapter;
(12) "Secretary" means the Secretary of Health and Human Resources;
(13) "Secure facility" means any public or private residential facility which includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in such facility;
(14) "Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the movements and activities of individuals held in lawful custody in such facility and which limits its residents' access to the surrounding community, but is not characterized by construction fixtures designed to physically restrict the movements and activities of residents;
(15) "Status offender" means a juvenile who has been adjudicated as one:
(A) Who habitually and continually refuses to respond to the lawful supervision by his or her parents, guardian or legal custodian such that the child's behavior substantially endangers the health, safety or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or custodian without the consent of such person or without good cause; or
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county or state law regarding use of alcoholic beverages by minors;
(16) "Valid court order" means a court order given to a juvenile who was brought before the court and made subject to such order and who received, before the issuance of such order, the full due process rights guaranteed to such juvenile by the constitutions of the United States and the State of West Virginia.


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(NOTE: The purpose of this bill is to make §11-16-19 and §49- 1-4 consistent with prior amendments to the code which changed the use of alcoholic beverages by minors from a status offense to a juvenile delinquent offense.

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