ENROLLED
H. B. 3023
(By Delegates Doyle, Michael, Thompson, Pettit, Laird and
Facemyer)
[Passed March 13, 1999; in effect from passage.]
AN ACT to repeal section thirty, article three-a, chapter sixty
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections three,
four, five, six, seven, eight, ten, ten-a, twelve, seventeen
and twenty-nine of said article; to further amend said
article by adding thereto four new sections, designated
sections two-a, ten-b, ten-c and twenty-seven-a; and to
amend and reenact section eleven, article seven of said
chapter, all relating generally to the sale of liquor at
retail; further legislative findings, declaration and
purpose; operation of state store by commissioner in certain
circumstances; revising definitions; appointments to retail
liquor licensing board; powers and duties of commissioner;
modification of market zones; increasing number of Class B
licenses in a market zone in limited circumstances;
limitation on number of licenses held; principal officers,
partners and members of applicants for licenses; requirement
that applicant for license hold federal license to sell liquor at wholesale; bidding procedures; preference for
resident bidders; bids for licenses issued for ten-year
period beginning the first day of July, two thousand and for
every ten-year period thereafter; determination of minimum
bids; rejection of bids; notice to current licensee of
highest bid in certain circumstances; issuance of license to
current licensee in certain circumstances; bid preference
for current licensee; new bids for licenses in certain
circumstances; unlawful inducement of another to refrain
from bidding for a license or from operating an outlet;
criminal and civil penalties; expiration of licenses for the
period ending on the thirtieth day of June, two thousand and
for every ten-year period thereafter; the annual license
fees; the imposition of municipal licenses and fees on
retail licensees; providing for payment by electronic funds
transfer by retail licensees; surety bonds guaranteeing
payment for liquor; establishing minimum prices for sale of
liquor by retail licensees; revocation of license for
failure to operate outlet; reduction of authorized outlets
for failure to operate; issuance of Class B license in the
stead of an unoperated Class A license outlet; restriction
on bids; legislative rules governing determination of
failure to operate; review of revocation or reduction;
purchases of liquor from licensee where license revoked,
expired or surrendered; and contracts for delivery of liquor
by retail licensee.
Be it enacted by the Legislature of West Virginia:
That section thirty, article three-a, chapter sixty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections three, four, five, six,
seven, eight, ten, ten-a, twelve, seventeen and twenty-nine of
said article be amended and reenacted; that said article be
further amended by adding thereto four new sections, designated
sections two-a, ten-b, ten-c and twenty-seven-a; and that section
eleven, article seven of said chapter be amended and reenacted,
all to read as follows:
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-2a. Further legislative findings, declarations and
purpose.
(a) In addition to the findings and declarations set forth
in subsection (a), section two of this article, the Legislature
hereby finds and declares that:
(1) The provisions of this article as enacted during the
regular session of the Legislature in the year one thousand nine
hundred ninety were intended to require that all licenses issued
for the retail sale of liquor expire as of the first day of July,
two thousand, and that the issuance of retail licenses for the
ten-year period beginning the first day of July, two thousand,
and for each ten-year period thereafter, be based on sealed
competitive bids;
(2) It is the intention of the Legislature to provide that
all retail licenses issued beginning the first day of July, two thousand, expire ten years from the date of issuance and that
every ten years the issuance of retail licenses be based on
competitive bids;
(3) The purposes set forth in subsection (b), section two of
this article remain the purposes of the Legislature;
(4) Many of those persons who currently hold retail licenses
have not only provided the services to the public contemplated by
this article, but in many instances have provided employment and
otherwise made substantial contributions to the economic and
civic development of the communities in which they conduct
business, and therefore, current licensees should be afforded
special consideration if their bids for the licenses issued for
the ten-year period beginning the first day of July, two
thousand, be unsuccessful;
(5) Those persons who are issued a retail license for the
ten-year period beginning on the first day of July, two thousand,
and for any ten-year period thereafter should also be afforded
special consideration if their bids for a retail license are
unsuccessful; and
(6) Further statutory changes are desirable to effect the
purposes set forth in subsection (b), section two of this
article.
(b) It is, therefore, the further purposes of the
Legislature in providing for the retail sale of liquor to:
(1) Require that all licenses issued for the ten-year period
beginning the first day of July, two thousand, and for each ten-year period thereafter be based on sealed competitive bids;
(2) Provide current licensees who, having bid in the manner
required by the provisions of this article, fail to submit the
highest bid for licenses issued for the ten-year period beginning
the first day of July, two thousand, and for each ten-year period
thereafter an additional opportunity to obtain the license; and
(3) Effect statutory changes to further the purposes
provided in this section and section two of this article.
§60-3A-3. Sale of liquor by retail licensees permitted;
cessation of retail sale of liquor by state.
(a) Notwithstanding any provision of this code to the
contrary, the sale of liquor by retail licensees in accordance
with the provisions of this article is lawful.
(b) Upon the opening of a retail outlet in any market zone,
the state shall, as soon as practicable, discontinue operating
any and all state liquor stores and agency stores within the
market zone so long as a retail outlet is in operation in the
market zone.
(c) No provision of this section shall prevent the
commissioner, with the consent of the board, from operating a
state liquor store in a market zone pursuant to the provisions of
article three of this chapter where there are no retail outlets
in operation, and the operation of any retail outlet in the
market zone is prevented by a matter in controversy pending
judicial adjudication or the licensee is unable or unwilling to
open a retail outlet:
Provided, That, the board determines that the resolution of the controversy will continue for such duration
that the opening of a state liquor store is necessary to meet
reasonable consumer concerns of availability of liquor.
§60-3A-4. Definitions.
(a) "Applicant" means any person who bids for a retail
license, or who seeks the commissioner's approval to purchase or
otherwise acquire a retail license from a retail licensee, in
accordance with the provisions of this article.
(b) "Application" means the form prescribed by the
commissioner which must be filed with the commissioner by any
person bidding for a retail license.
(c) "Board" means the retail liquor licensing board created
by this article.
(d) "Class A retail license" means a retail license
permitting the retail sale of liquor at more than one retail
outlet.
(e) "Class B retail license" means a retail license
permitting the sale of liquor at only one retail outlet.
(f) "Current licensee" means a person who holds a retail
license at the time of the reenactment of this section in the
year one thousand nine hundred ninety-nine or that person's
successor or any person who holds a retail license when it
expires at the end of a ten-year period.
(g) "Designated areas" means one or more geographic areas
within a market zone designated as such by the board.
(h) "Executive officer" means the president or other principal officer, partner or member of an applicant or retail
licensee, any vice president or other principal officer, partner
or member of an applicant or retail licensee in charge of a
principal business unit or division, or any other officer,
partner or member of an applicant or retail licensee who performs
a policy-making function.
(i) "Liquor" means alcoholic liquor as defined in section
five, article one of this chapter, and also includes both wine
and fortified wines as those terms are defined in section two,
article eight of this chapter.
(j) "Market zone" means a geographic area designated as such
by the board for the purpose of issuing retail licenses.
(k) "Person" means an individual, firm, corporation,
association, partnership, limited partnership, limited liability
company or other entity, regardless of its form, structure or
nature.
(l) "Retail license" means a license issued under the
provisions of this article permitting the sale of liquor at
retail.
(m) "Retail licensee" means the holder of a retail license.
(n) "Retail outlet" means a specific location where liquor
may be lawfully sold by a retail licensee under the provisions of
this article.
§60-3A-5. Creation of retail liquor licensing board; members,
terms, meetings and officers; general provisions.
(a) There is hereby continued the state retail liquor licensing board which shall be composed of five members, three of
whom shall be appointed by the governor by and with the advice
and consent of the Senate, one of whom shall be the secretary of
tax and revenue, and one of whom shall be the commissioner. The
secretary of tax and revenue and the commissioner shall serve as
the chairman and secretary, respectively, of the board. No more
than two of the three members appointed by the governor shall be
of the same political party. No member of the board may hold a
retail license or have any financial interest, directly or
indirectly, in any retail licensee.
(b) The provisions of this subsection apply to the three
members appointed by the governor. They shall be appointed for
overlapping terms of three years each and until their respective
successors have been appointed and have qualified. Members may
be reappointed for any number of terms. Before entering upon the
performance of his or her duties, each member shall take and
subscribe to the oath required by Section 5, Article IV of the
constitution of this state. Vacancies shall be filled by
appointment by the governor for the unexpired term of the member
whose office is vacant and the appointment shall be made within
sixty days of the occurrence of the vacancy. Any member may be
removed by the governor in case of incompetency, neglect of duty,
gross immorality or malfeasance in office. Members shall receive
compensation of one hundred dollars per day for each day actually
engaged in the performance of their duties as board members, and
in addition shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties.
Appointments to fill vacancies made after the amendment to this
section made in one thousand nine hundred ninety-nine shall be
made to provide that after the next two appointments, and
thereafter, there is a member from each of the congressional
districts of this state as delineated in accordance with section
three, article two, chapter one of this code.
(c) A majority of the members of the board constitutes a
quorum and meetings shall be held at the call of the chairman.
(d) Staff, office facilities and costs of operation of the
board shall be provided by the commissioner.
§60-3A-6. General powers and duties of board and commissioner.
(a) The board shall create, based on economic and
demographic factors, market zones within the state for the
issuance of Class A and Class B retail licenses, and, if deemed
necessary or desirable by the board, to create one or more
designated areas within such market zones for the issuance of
Class B retail licenses.
(b) The commissioner shall:
(1) Prescribe application forms for persons desiring to
acquire retail licenses and adopt an orderly procedure and
timetable for investigating, processing and approving
applications;
(2) Develop a form of retail license to be issued to each
retail licensee under the provisions of this article;
(3) Disseminate to the public information relating to the issuance of retail licenses;
(4) Promulgate standards for advertising the sale,
availability, price and selection of liquor;
(5) Set minimum standards for retail outlets regarding the
amount and variety of alcoholic liquors which they must offer for
sale at each retail outlet;
(6) Enforce the provisions of this article;
(7) Impose civil penalties upon retail licensees;
(8) Enter the retail outlet of any retail licensee at
reasonable times for the purpose of inspecting the same, and
determining the compliance of such retail licensee with the
provisions of this article and any rules promulgated by the board
or the commissioner pursuant to the provisions of this article;
and
(9) Issue subpoenas and subpoenas duces tecum for the
purpose of conducting hearings under the provisions of section
twenty-six or section twenty-eight of this article, which
subpoenas and subpoenas duces tecum shall be issued in the time,
for the fees, and shall be enforced in the manner specified in
section one, article five, chapter twenty-nine-a of this code
with like effect as if such section was set forth in extenso
herein.
(c) The board and the commissioner shall each:
(1) Engage accounting, legal and other necessary
professional consultants to assist them in carrying out their
respective duties under this article; and
(2) Adopt, amend, or repeal such procedural, interpretive
and legislative rules, consistent with the policy and objectives
of this article, as they may deem necessary or desirable for the
public interest in carrying out the provisions of this article.
Such rules shall be adopted, amended and repealed in accordance
with the provisions of chapter twenty-nine-a of this code.
§60-3A-7. Market zones; Class A and Class B retail licenses.
(a) The market zones established by the board for the
retail sale of liquor within this state under the enactment of
this section in one thousand nine hundred ninety may not be
modified by the board unless authorized by the Legislature. For
each market zone established, the commissioner may issue one
Class A retail license and one or more Class B retail licenses.
Each Class A retail license shall permit the holder of the
license to operate the number of retail outlets the board
authorized for that market zone. The number of Class B retail
licenses to be issued by the commissioner within each market zone
shall not exceed fifty percent of the number of retail outlets
authorized for the Class A retail license for that market zone,
except as otherwise authorized by subsection (e) of this section
or section twenty-seven-a of this article: Provided, That,
except as authorized by subsection (e) of this section or section
twenty-seven-a of this article, in a market zone where the number
of retail outlets authorized under the Class A retail license is
an odd number, the number of Class B retail licenses which may be
issued in that market zone shall be rounded up to the next highest whole number following that number which is equal to
fifty percent of the number of retail outlets authorized under
the Class A retail license.
(b) If the board determines that a market zone is not suited
for the issuance of a Class A retail license, then only Class B
retail licenses may be authorized for that market zone and the
board shall determine the maximum number of Class B retail
licenses which may be issued for that market zone.
(c) When authorizing Class B retail licenses for a market
zone, the board may create one or more designated areas within
the market zone and authorize one Class B retail license for each
designated area. For each market zone, the commissioner may
issue additional Class B retail licenses for retail outlets to be
located outside any designated area, but the number of additional
Class B retail licenses, when added to the total number of Class
B retail licenses issued for all designated areas within the
market zone, shall not exceed the maximum number of Class B
retail licenses permitted under subsection (a) of this section
for that market zone, except as authorized by subsection (e) of
this section or section twenty-seven-a of this article.
(d) A person may hold one or more Class A retail licenses
and one or more Class B retail licenses, but for the same market
zone no person shall hold a Class A retail license and a Class B
retail license or more than one Class B retail license.
(e) Notwithstanding any provision of subsection (a) or (c)
of this section, no later than sixty days prior to the receipt of the bids described in section ten-b of this article, the board
may authorize the commissioner to issue an additional Class B
license in a market zone for the ten-year period which begins
next following first day of July, where the board determines
that:
(1) Each outlet authorized to operate in the market zone has
been open and in operation for not less than one year;
(2) Changes in economic and demographic factors, including
substantial population increases within the market zone, clearly
demonstrate the need for an additional retail outlet or outlets
within the market area to meet an increase in consumer demand;
and
(3) The issuance of an additional Class B license in the
market zone will not significantly impair the efforts to procure
the revenues described in subsection (b), section ten-b of this
article.
(f) The board shall establish the minimum bid for any
additional Class B licenses authorized under subsection (e) of
this section.
(g) No person may hold a combination of licenses that, in
the aggregate, authorizes the operation of more than twenty-five
percent of the total number of retail outlets authorized under
the provisions of this article to operate in this state.
§60-3A-8. Retail license application requirements; retail
licensee qualifications.
(a) Prior to or simultaneously with the submission of a bid for a retail license, each applicant shall file an application
with the commissioner, stating under oath the following:
(1) If the applicant is an individual, his or her name and
residence address;
(2) If the applicant is other than an individual, the name
and business address of the applicant; the state of its
incorporation or organization; the names and residence addresses
of each executive officer and other principal officer, partner or member of the entity; a copy of the entity's charter or other
agreement under which the entity operates; and the names and
residence addresses of any person owning, directly or indirectly,
at least twenty percent of the outstanding stock, partnership, or
other interests in the applicant; and
(3) That the applicant has never been convicted in this
state or any other state of any felony or other crime involving
moral turpitude or convicted of any felony in this or any other
state court or any federal court for a violation of any state or
federal liquor law, and if the applicant is other than an
individual, that none of its executive officers, other principal
officers, partners or members, or any person owning, directly or
indirectly, at least twenty percent of the outstanding stock,
partnership, or other interests in the applicant, has been
convicted.
(b) An applicant shall provide the commissioner any
additional information requested by the commissioner.
(c) Whenever a change occurs in any information provided to
the commissioner, the change shall immediately be reported to the
commissioner in the same manner as originally provided.
(d) The commissioner shall disqualify each bid submitted by
an applicant under section ten of this article, and no applicant
shall be issued or eligible to hold a retail license under this article, if:
(1) The applicant has been convicted in this state of any
felony or other crime involving moral turpitude or convicted of
any felony in this or any other state court or any federal court
for a violation of any state or federal liquor law; or
(2) Any executive officer or other principal officer,
partner or member of the applicant, or any person owning,
directly or indirectly, at least twenty percent of the
outstanding stock, partnership, or other interests in the
applicant, has been convicted in this state of any felony or
other crime involving moral turpitude or convicted of any felony
in this or any other state court or any federal court for a
violation of any state or federal liquor law.
(e) The commissioner shall not issue a retail license to an
applicant which does not hold a license issued pursuant to
federal law to sell liquor at wholesale.
§60-3A-10. Bidding procedure.
(a) Except as provided in section ten-b of this article,
bids for licenses shall be governed by the provisions of this
section.
(b) The issuance of retail licenses shall be based on sealed
competitive bids in accordance with the provisions of this
section. Bids for the issuance of retail licenses shall be obtained by public notice published as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for the
publication shall be each market zone within which a retail
outlet shall be located. The second publication of the notice
shall appear more than sixty days next preceding the final day
for submitting bids.
(c) Each bid shall indicate the market zone for which the
retail license is sought, whether the bid is for a Class A retail
license or Class B retail license, and, if the board has created
one or more designated areas for the market zone, whether the bid
is for the Class B retail license to be issued for any designated
area. No bid shall be altered or withdrawn after the appointed
hour for the opening of the bids. Subject to the provisions of
section ten-b of this article, each retail license shall be
awarded to the highest bidder. In market zones where two or more
Class B retail licenses are authorized (other than for a
designated area or areas), the licenses shall be awarded to those
persons submitting the highest bids. No bid shall be considered
unless the bond required under section eleven of this article is
submitted to the commissioner. All bids for a retail license may
be rejected by the board if the board determines that the highest
bid is inadequate, in which event the commissioner shall begin anew the bidding process for that retail license.
(d) Each person desiring to submit a bid shall file the bid
with the commissioner prior to the specified date and hour for
the bid openings. The failure to deliver or the nonreceipt of a
bid prior to the appointed date and hour constitutes sufficient
reason for the rejection of a bid. After the award of the retail
license, the commissioner shall indicate upon the successful bid
that it was the successful bid. Thereafter, a copy of the bid
and the bidder's application shall be maintained as a public
record, shall be open to public inspection in the commissioner's
office and shall not be destroyed without the written consent of
the legislative auditor.
(e) Prior to the issuance of the retail license to the
successful bidder, the bid price and the annual retail license
fee, as specified in section twelve of this article, shall be
paid to the commissioner by money order, certified check or
cashier's check. All retail licenses shall be signed by the
commissioner in the name of the state.
(f) If the successful bidder fails to pay to the
commissioner the bid price and the annual retail license fee, at
the time specified by the commissioner, the bond provided for in
section eleven of this article shall be forfeited and the bidder
shall not be issued the retail license. The commissioner shall then issue the retail license to the next highest bidder for the
retail license or reject all bids and start anew the bidding
procedure for the retail license.
§60-3A-10a. Preference for resident bidders.
In determining the highest bidder for purposes of section
ten of this article, the board shall afford a five percent
preference for West Virginia resident bidders, which shall be
computed by adding five percent of the bid price to the bid price
submitted by each resident bidder. For purposes of this section
a bidder shall be considered to be a West Virginia resident if
the bidder: (1) Has resided in this state for at least four years
immediately prior to the date on which the bid is opened; or, if
the bidder is an applicant other than an individual, has had its
headquarters or principal place of business in this state for at
least four years immediately prior to that date; and (2) meets
the requirements set forth in section forty-four, article three,
chapter five-a of this code relating to a residency of vendors,
except for the requirement of having paid business and occupation
taxes.
§60-3A-10b. Bidding procedure for licenses issued for the ten-
year period beginning July 1, 2000, and licenses
issued for each ten-year period thereafter.
(a) The issuance of Class A licenses and Class B licenses
for the ten-year period beginning the first day of July, two thousand, and for each ten-year period thereafter, shall be based
upon sealed competitive bid in accordance with the provisions of
section ten of this article except as provided in this section.
(b) Prior to accepting bids for Class A licenses and Class
B licenses to be issued for the ten-year period beginning the
first day of July, two thousand, the board shall determine the
minimum bid for each license based upon a review of the sales at
each retail outlet permitted to operate under the license and
such other factors as the board may determine to generate the
revenues from liquor license renewal projected by the governor's
official revenue estimates for fiscal year two thousand as
presented to the regular session of the Legislature in the year
one thousand nine hundred ninety-nine.
(c) Prior to accepting bids for Class A licenses and Class
B licenses to be issued for the ten-year periods beginning the
first day of July, two thousand ten, and the first day of July
every ten years thereafter, the board shall determine the minimum
bid for each license based upon a review of the sales at each
retail outlet permitted to operate under the license and such
other factors as the board may determine to generate the revenues
from liquor license renewal projected by the governor's official
revenue estimates for the fiscal year preceding the expiration of
the retail licenses.
(d) All bids for a retail license for the ten-year period
beginning the first day of July, two thousand, or for any ten- year period thereafter may be rejected by the board if the board
determines that the highest bid fails to meet the minimum bid.
The board may also reject any or all bids for a market zone
where, in the aggregate, the bids for all of the retail licenses
in the market zone fail to meet the minimum aggregate bid for
that market zone. Where the board determines the highest bid
meets or exceeds the minimum bid, the board shall determine
whether, at the time of the bid, the same retail license was held
for the period ending the thirtieth day of June, two thousand, or
for any ten-year period thereafter, on the thirtieth day of June
preceding the expiration of the license. If the current licensee
holding the same retail license at the time of submission of the
bid for the period ending the thirtieth day of June, two
thousand, or for any ten-year period thereafter, on the thirtieth
day of June preceding the expiration of the retail license,
submitted a bid that was not less than the minimum bid and is,
after considering any preference applicable under the provisions
of section ten-a of this article, an unsuccessful bidder for the
license for the period beginning the first day of July, two
thousand, or for any ten-year period thereafter, on the first day
of July when the retail license expires, the commissioner shall notify the person that upon paying the amount of the highest bid,
subject to the provisions of subsection (e) of this section, and
upon compliance with all other requirements imposed by the
provisions of this article for the issuance of the license, the
retail license for the ten-year period beginning the first day of
July, two thousand, or for any ten-year period thereafter, shall
be issued to the current licensee. If, within the time determined
by the commissioner, the current licensee pays the amount to the
commissioner and complies with all other requirements imposed by
the provisions of this article for the issuance of the license,
the retail license for the ten-year period beginning the first
day of July, two thousand, or for any ten-year period thereafter,
shall be issued to the current licensee.
(e) The board shall, in determining the amount a current
licensee who is an unsuccessful bidder shall pay as described in
subsection (d) of this section, afford the unsuccessful bidder a
preference. If the unsuccessful bidder is a West Virginia
resident as defined in section ten-a of this article, the board
shall afford the unsuccessful bidder a five percent preference in
addition to the five percent preference afforded under section
ten-a of this article. If the unsuccessful bidder is not a West
Virginia resident, the board shall afford the unsuccessful bidder
a five percent preference. The preference shall be computed by subtracting the preference percentage of the highest bid price
from the highest bid price: Provided, tThat under no circumstances
may the preference bring the price of the bid below the minimum
bid established by the board: Provided, however, That a current
licensee who is not operating any of the retail outlets for which
he or she is authorized under the license is not eligible for the
preference provided for under this section.
(f) In the event all bids submitted for a license fail to
meet the minimum bid amount for the license as determined by the
board, the board may offer the license for bid again after it
determines a new minimum bid amount for the license.
§60-3A-10c. Criminal penalties for unlawful inducement.
(a) Any person who gives another person any thing of value
to induce the other to refrain from bidding for a retail license
is guilty of a misdemeanor and, upon conviction, shall be fined
not more than ten thousand dollars, and, in addition, shall be
subject to a civil penalty payable to the commissioner of not
more than one million dollars.
(b) Any person who gives a person any thing of value to
induce the other to refrain from operating an outlet authorized
under a retail license is guilty of a misdemeanor and, upon
conviction, shall be fined not more than ten thousand dollars,
and, in addition, shall be subject to a civil penalty payable to the commissioner of not more than one million dollars.
§60-3A-12. Annual retail license fee; expiration and renewal of
retail licenses.
(a) The annual retail license period is from the first day
of July to the thirtieth day of June of the following year. The
annual retail license fee for a Class A retail license is the sum
obtained by multiplying the number of retail outlets operated by
the retail licensee in the market zone to which the Class A
retail license applies by one thousand dollars. The annual retail
license fee for a Class B retail license is one thousand dollars.
The annual retail license fee for the initial year of issuance
shall be prorated based on the number of days remaining between
the date of issuance and the following thirtieth day of June.
(b) All retail licenses expire on the thirtieth day of June
of each year and may be renewed only upon the submission to the
commissioner of the same information required for the issuance of
the license and any additional information requested by the
commissioner on the forms and by the date prescribed by the
commissioner, together with the payment to the commissioner of
the applicable annual retail license fee required under this
section.
(c) No person may sell liquor at any retail outlet if the
retail license applicable to the outlet has been suspended or revoked, or has expired.
(d) All retail licenses issued or renewed under the
provisions of this article for the period ending the thirtieth
day of June, two thousand, or on the thirtieth day of June for
any ten- year period thereafter, expire and are of no further
force or effect as of the first day of July, in the year two
thousand, or as of the first day of July every ten years
thereafter.
(e) Notwithstanding any provision of section eighteen,
article four of this chapter to the contrary, a municipality may
invoke the authority granted by section four, article thirteen,
chapter eight of this code to require an annual license from each
retail licensee and require payment for the license in amounts
not to exceed the amounts provided in subsection (a) of this
section.
§60-3A-17. Wholesale prices set by commissioner; retail
licensees to purchase liquor from state; transportation and
storage; method of payment.
(a) The commissioner shall fix wholesale prices for the sale
of liquor, other than wine, to retail licensees. The
commissioner shall sell liquor, other than wine, to retail
licensees according to a uniform pricing schedule. The
commissioner shall obtain if possible, upon request, any liquor
requested by a retail licensee.
(b) Wholesale prices shall be established in order to yield
a net profit for the general fund of not less than six million
five hundred thousand dollars annually on an annual volume of
business equal to the average for the past three years. The net
revenue derived from the sale of alcoholic liquors shall be
deposited into the general revenue fund in the manner provided in
section seventeen, article three of this chapter.
(c) The commissioner shall specify the maximum wholesale
markup percentage which may be applied to the prices paid by the
commissioner for all liquor, other than wine, in order to
determine the prices at which all liquor, other than wine, will
be sold to retail licensees. A retail licensee shall purchase all
liquor, other than wine, for resale in this state only from the
commissioner, and the provisions of sections twelve and thirteen,
article six of this chapter shall not apply to the transportation
of the liquor: Provided, That a retail licensee shall purchase
wine from a wine distributor who is duly licensed under article
eight of this chapter. All liquor, other than wine, purchased by
retail licensees shall be stored in the state at the retail
outlet or outlets operated by the retail licensee: Provided,
however, That the commissioner, in his or her discretion, may
upon written request permit a retail licensee to store liquor at
a site other than the retail outlet or outlets.
(d) The sale of liquor by the commissioner to retail
licensees shall be paid by electronic funds transfer which shall
be initiated by the commissioner on the business day following
the retail licensees order or by money order, certified check or
cashier's check which shall be received by the commissioner at
least twenty-four hours prior to the shipping of the alcoholic
liquors: Provided, That if a retail licensee posts with the
commissioner an irrevocable letter of credit or bond with surety
acceptable to the commissioner from a financial institution
acceptable to the commissioner guaranteeing payment of checks,
then the commissioner may accept the retail licensee's checks in
an amount up to the amount of the letter of credit.
(e)(1) A retail licensee may not sell liquor to persons
licensed under the provisions of article seven of this chapter at
less than one hundred ten percent of the retail licensee's cost
as defined in section six, article eleven-a, chapter forty-seven
of this code.
(2) A retail licensee may not sell liquor to the general
public at less than one hundred ten percent of the retail
licensee's cost as defined in section six, article eleven-a,
chapter forty-seven of this code.
§60-3A-27a. Revocation of license or reduction of authority to
operate retail outlet for failure to operate retail outlet.
(a)(1) The commissioner may revoke a Class A retail license
if the licensee fails to operate at least one of the retail
outlets authorized under the license. The commissioner may
revoke a Class B retail license if the licensee fails to operate
the retail outlet authorized under the license.
(2) The commissioner may not accept the bid of a person who
has had a license revoked pursuant to subdivision (1) of this
subsection when the license is offered for bid following the
revocation.
(b)(1) Where a person operates at least one of the retail
outlets authorized under a Class A license, but fails to operate
the full number of retail outlets authorized under the license,
the commissioner may reduce the number of retail outlets the
person is authorized to operate under the license by the number
that is not being operated.
(2) Notwithstanding any provision of section seven of this
article to the contrary, the board may authorize the commissioner
to issue, subject to the bid requirements of section ten of this
article, a Class B license in the stead of each retail outlet for
which authority to operate under a Class A license has been
reduced under subdivision (1) of this subsection.
(3) The commissioner may not accept the bid of a person who
has had the number of retail outlets authorized under a license
reduced pursuant to subdivision (1) of this subsection for any
Class B license issued in the stead of a retail outlet previously
authorized under the reduced license.
(c) The board shall propose legislative rules for
promulgation pursuant to the provisions of article three, chapter
twenty-nine-a of this code prescribing the criteria under which
the commissioner is to determine whether a retail licensee has
failed to operate an outlet.
(d) A revocation or reduction under this section is subject
to the provisions for notice, hearing and review prescribed in
section twenty-eight of this article.
§60-3A-29. Disposition of inventory upon revocation or
surrender of retail license.
In the event of the revocation, expiration or surrender of
any retail license in accordance with the provisions of this
article, the commissioner shall may, in his or her discretion,
purchase, and the retail licensee holding such retail license
shall sell to the commissioner, or authorize another person to purchase, all or any
portion of the liquor inventory of such the retail licensee. based on
the then current cost of such inventory less any expenses incurred by the commissioner in connection with the repossession
thereof If the
commissioner elects to purchase, or authorizes another person to
purchase, the inventory or any portion of the inventory, the
retail licensee shall sell the inventory as directed by, and upon terms determined by, the commissioner.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§60-7-11. Licensee must purchase alcoholic liquors from or
through commissioner or retail licensee;
exceptions.
(a)(1) All licensees shall purchase all alcoholic liquors
sold by them from the West Virginia alcohol beverage control
commissioner at prices established by such the commissioner for sales
of such the alcoholic liquors to the public generally or from any
retail licensee licensed under the provisions of article three-a
of this chapter, except that such the licensees may purchase those
wines permitted to be sold at retail pursuant to article eight of
this chapter from those distributors licensed pursuant to said
article at the same prices such the distributors sell such the wines to
retailers licensed pursuant to said article.
(2) A licensee may by contract approved by the commissioner
receive deliveries of alcoholic liquor from a retail liquor
store, and the provisions of sections twelve and thirteen,
article six of this chapter shall not apply to the transportation
of that alcoholic liquor.
(b) In all reports filed under section sixteen, article
fifteen, chapter eleven of this code, retail licensees licensed
under the provisions of article three-a of this chapter shall
separately identify the amount of sales tax on sales of liquor to licensees in such the manner as required by the tax commissioner shall
require.
(c) Notwithstanding the provisions of section thirty,
article fifteen, chapter eleven of this code to the contrary, the
amount of the sales taxes collected by the tax commissioner shall
be deposited in a revolving fund account in the state treasurer's
office, designated the "drunk driving prevention fund", and
administered by the commission on drunk driving prevention,
subject to appropriations by the Legislature.