College students in line for a club in downtown Morgantown.

Prohibition-era laws meant to limit access to alcohol now cause headaches for law enforcement trying to crack down on underage drinking.

Originally published in West Virginia Focus magazine

When it came time at long last in 1934 to repeal Prohibition, our conscientious state lawmakers didn’t throw the baby out with the bathtub gin. They were measured. The Legislature would write laws to regulate the manufacture and sale of intoxicating liquors, they wrote in their amendment to the state constitution. And any law authorizing the sale of such liquors “shall forbid and penalize the consumption … in a saloon or other public place.”

West Virginians have been finessing the meaning of “public place” ever since. It could just stand as an amusing constitutional artifact of a different time and sensibility, except for one thing: That finessing may, in a roundabout way, contribute to Morgantown’s—shall we say effervescent?—bar culture.

Knicker Twist

By the liberal 1960s, West Virginians felt they were ready to enjoy a drink in a public place. Lawmakers, ever loath to amend the constitution, invented a loophole for the occasion. If an establishment only admitted dues-paying members and their guests, it would not be considered a public place and so would pass constitutional muster.

“The ‘private club’ legislation came into being in 1967, and it essentially allowed for spirits to be sold by the glass,” explains Gary “Gig” Robinson, spokesman for the state Alcohol Beverage Control Administration (ABCA). For half a century now, the state has licensed bars and restaurants that serve alcohol for on-premises consumption as private clubs with dues-paying members.

Some readers will remember such places maintaining membership rosters. But in 1991, the Legislature relented a little—not going so far as to amend the constitution or to remove “membership” from the definition of a private club, but relaxing the requirements for membership lists, membership cards, and guest books.

These days, state code and the letter of ABCA rules notwithstanding, establishments licensed as private clubs make no pretense at privacy and serve alcohol by the glass to all comers. “The private club license is the only license for a place that serves spirits by the glass for on-premises consumption,” Robinson says. “It would not be feasible to have a membership to go to a Red Lobster or an Applebees, and the same license is given to them as to nightclubs. ‘Private club’ simply indicates there are spirits by the glass.”

Robinson bluntly sidesteps the idea that the law is obsolete. “I don’t want to go on record as saying the code is outdated. We are a regulatory agency that enforces rules or code on the books. The Legislature creates those rules.”

Whiskey Sour

One vestige of “privacy” does remain. The way the law has been interpreted, the ABCA commissioner’s authority to enforce the private club law is the sole authority to enforce it. That means municipal police cannot enter establishments licensed as private clubs without invitation. It’s an interpretation that takes on significance in Morgantown, where nightclubs operating blocks from West Virginia University dormitories openly advertise, “18 to party, 21 to drink.”

“That leads me to believe that they are consuming alcohol underage,” says Captain H. Sperringer of the Morgantown Police Department. The lines that form at the doors of these establishments seem to support that suspicion—do people really stand in line to party sober? But, he affirms, “City law enforcement are not allowed in private clubs without either a search warrant or the owner’s permission to come in. If individuals are caught exiting bars who are underage and have been drinking alcohol, then we can cite them and the citations are reported to the ABCA. But we can’t go in to check for underage drinking. Only the ABCA can do that.”

A little underage serving might not be an issue if all were moderate and orderly downtown. But as anyone knows who’s been on High Street late, that’s not the case. Consider two incidents at the beginning of the 2014-15 school year: the fatal late-night stabbing of an incoming freshman outside a downtown bar just before the fall semester began, and an unruly crowd a couple weeks later that Morgantown police ended up dispersing with pepper spray.

“The law does need updated,” Sperringer says, when asked what would help his department maintain the peace. “Legislation would have to permit municipal officers to work in conjunction with the ABCA but also, if they have reasonable grounds to believe that serving underage is occurring, we could enter the business and determine if it is.”

Bee’s Knees

“There are plenty of responsible bar owners,” says Delegate Barbara Fleischauer, who represents Morgantown’s district. “But for years we have heard of bars emptying the underage kids out the back door when (ABCA) people were around. People have asked us for years to do something about a culture that looks the other way when young kids who don’t know any better drink more than they can handle.”

Passing a constitutional amendment is difficult, Fleischauer acknowledges. “Many of us have thought about it, since it is clearly the best fix, but it may not be the most important thing to do during a 60-day session.”

Instead, Fleischauer and a bipartisan slate of co-sponsors introduced legislation in January 2015 aimed directly at the problem of bars serving underage patrons. The fact that the ABCA commissioner has authority to enforce the law, the proposed legislation reads, “does not limit or restrict the authority of state or local law-enforcement officers to enter any public area on or adjacent to any private club or undertaking other appropriate action or investigation to enforce the underage drinking laws.”

The bill passed in the House and then narrowly missed passage in the Senate, but Fleischauer is hopeful. “I think the chances of it passing next year are good.”

Written by Pam Kasey

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