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Introduced Version Senate Bill 511 History

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Key: Green = existing Code. Red = new code to be enacted

FISCAL NOTEWEST virginia legislature

2019 regular session

Introduced

Senate Bill 511

By Senators Trump and Boso

[Introduced February 1, 2019; Referred
to the Committee on the Judiciary
]

A BILL to amend and reenact §60-1-5a of the Code of West Virginia, 1931, as amended; to amend and reenact §60-4-3b of said code; to amend and reenact §60-6-8 of said code; and to amend and reenact §60-8-3, §60-8-17, and §60-8-20 of said code, all relating to creating alternating wine proprietorships for wineries and farm wineries; clarifying sampling procedures and requirements for wineries and farm wineries; permitting certain charitable events to auction wine bottles for off-premises consumption; clarifying alcoholic liquors are sold by the drink in certain Class A licenses; stating when lawful to conduct wine bottle sales in certain Class A licenses; permitting the sale of wine in Division II and III college stadiums; providing a 30-day requirement to issue or deny a completed license application; and creating a re-activation fee for licensees that fail to timely file their renewal applications and pay their license fees.

Be it enacted by the Legislature of West Virginia:


ARTICLE 1. GENERAL PROVISIONS.


§60-1-5a. Farm wineries defined.

(a) For the purpose of this chapter “farm winery” means an establishment where in any year 50,000 gallons or less of wine and nonfortified dessert wine are manufactured exclusively by natural fermentation from grapes, other fruits or honey, or other agricultural products containing sugar and where port, sherry, and Madeira wine may also be manufactured, with 25 percent of such raw products being produced by the owner of such farm winery on the premises of that establishment and no more than 25 percent of such produce originating from any source outside this state. Any port, sherry, or Madeira wine manufactured by a winery or a farm winery must not exceed an alcoholic content of 22 percent alcohol by volume and shall be matured in wooden barrels or casks.

(b) Notwithstanding the provisions of subsection (a) of this section, a farm winery may include one off-farm location. The owner of a farm winery may provide to the commissioner evidence, accompanied by written findings by the West Virginia Agriculture Commissioner in support thereof, that the owner has planted on the premises of the farm winery young nonbearing fruit plants. The commissioner may grant permission for one off-farm location in an amount equal to that reasonably expected to be produced when the nonbearing fruit plants planted on the farm winery come into full production. The length of time of the permission to use an off-farm location shall be determined by the commissioner after consultation with the Agriculture Commissioner.

(c) Notwithstanding the provisions of subsection (a) of this section, a licensed farm winery that meets the requirements in this chapter and who is in good standing with the state may enter into an alternating wine proprietorship agreement with the owner of a farm located in West Virginia to rent or lease wine production facilities, equipment, and space, including a separately bonded wine area at the existing licensed farm winery’s premises. The owner of a farm located in West Virginia entering the alternating wine proprietorship agreement must be currently producing grapes, other fruits or honey, or other agricultural products containing sugar as certified by the West Virginia Agriculture Commissioner at its farm located in West Virginia. The owner of a farm located in West Virginia renting or leasing wine production facilities, equipment, and space, as a tenant of a licensed farm winery must separately meet federal requirements and state requirements for a winery or farm winery and qualify and obtain such licensure. Further, no wine produced by any of the parties to an alternating wine proprietorship agreement may be commingled, and also the wine must be maintained in separate bonded areas and storage that is sanitary. The parties to an alternating wine proprietorship agreement must maintain separate businesses, produce wine separately from each entity, and shall not assist the other parties. The owner of a farm located in West Virginia that is a party to an alternating wine proprietorship agreement may only produce in any year 50,000 gallons or less of wine and nonfortified dessert wine manufactured exclusively by natural fermentation from grapes, other fruits or honey, or other agricultural products containing sugar and where port, sherry and Madeira wine may also be manufactured, with 25 percent of such raw products being produced by the owner of such farm on its farm location premises in West Virginia and no more than 25 percent of such produce originating from any source outside this state. Any port, sherry, or Madeira wine manufactured by a licensed winery, farm winery or farm with a validly entered alternating wine proprietorship agreement must not exceed an alcoholic content of 22 percent alcohol by volume and shall be matured in wooden barrels or casks. A farm and farm owner that is a party to an alternating wine proprietorship agreement and licensed pursuant to this subsection must obtain licensure as a farm winery and must meet the same requirements in the code and the rules, except where noted. A licensed farm winery may enter into multiple alternating wine proprietorship agreements with separate owners of farms located in West Virginia subject to the requirements of the code and the rules, and must also have the requisite production facilities, equipment and space to safely produce wine for all parties.

(d) Notwithstanding the provisions of subsection (a) of this section, alternating wine proprietorship agreements in subsection (c) of this section may also be entered into by two or more separate owners of farms located in West Virginia to co-own and share the use of wine production facilities, equipment, and space including a separately bonded wine area for each owner of a farm located in West Virginia. The two or more farms entering the alternating wine proprietorship agreement must all be located in West Virginia and must be currently producing grapes, other fruits or honey, or other agricultural products containing sugar as certified by the West Virginia Agriculture Commissioner at the farms located in West Virginia. The farm owners, their farms located in West Virginia and the premises where the wine will be manufactured must be located in West Virginia and must each separately meet federal requirements and state requirements for a winery or farm winery. Further, no wine produced by any of the parties to an alternating wine proprietorship agreement may be commingled, and also the wine must be maintained in separate bonded areas and storage that is sanitary. The parties to an alternating wine proprietorship agreement must maintain separate businesses, produce wine separately from each entity, and shall not assist the other parties. The owners of farms located in West Virginia that are parties to the alternating wine proprietorship agreement may each only produce in any year 50,000 gallons or less of wine and nonfortified dessert wine manufactured exclusively by natural fermentation from grapes, other fruits or honey, or other agricultural products containing sugar and where port, sherry, and Madeira wine may also be manufactured, with 25 percent of such raw products being produced by the owner of such farms at their farm premises located in West Virginia and no more than 25 percent of such produce originating from any source outside this state. Any port, sherry, or Madeira wine manufactured by a licensed winery, farm winery or farm with a validly entered alternating wine proprietorship agreement must not exceed an alcoholic content of 22 percent alcohol by volume and shall be matured in wooden barrels or casks. Farms and farm owners that are a party to an alternating wine proprietorship agreement and licensed pursuant to this subsection must each obtain licensure as a farm winery and must meet the same requirements in the code and the rules, except where noted.  Owners of farms located in West Virginia that obtain licensure as farm wineries and who are parties to a valid alternating wine proprietorship agreement to co-own or share facilities are subject to the requirements of the code and the rules and must also have the requisite production facilities, equipment, and space to safely produce wine for all parties to the alternating wine proprietorship agreement.

(e) The commissioner shall promulgate rules necessary to effectuate the requirements of this section.

ARTICLE 4. LICENSES.


§60-4-3b.  Winery and farm winery license to manufacture and sell.


(a) Sales of wine. — An operator of a winery or farm winery may offer wine produced by the winery or farm winery for retail sale to customers from the winery, or farm winery or a farm winery’s licensed farm location in West Virginia per §60-1-5a(c) and §60-1-5a(d) of this code for consumption off the premises only. Except for free complimentary samples, no more than three complimentary samples per patron and no greater, in volume, than 2 fluid ounces per such sample, offered pursuant to §60-6-1 of this code, customers are prohibited from consuming any wine on the premises of the winery, or farm winery or farm winery’s licensed farm location in West Virginia per §60-1-5a(c) and §60-1-5a(d) of this code, unless such winery or farm winery has obtained a multicapacity winery or farm winery license: Provided, That a licensed winery or farm winery may offer complimentary samples per this subsection of wine manufactured by that licensed winery or farm winery for consumption on premises only; offer for the retail sale of sealed original container bottles of wine to customers for consumption off premises only; and may offer wine by the drink or glass for sale to customers for any such licensed winey or farm winery who has qualified, paid the license fee, and obtained a multi-capacity license, along with separately being licensed as a private wine restaurant that is located on its winery or farm winery’s licensed premises, for consumption on the premises only on Sundays beginning at 10:00 a.m. in any county in which the same has been approved as provided in §7-1-3pp §7-1-3ss of this code.

(b) Retail sales. — Every licensed winery or farm winery shall comply with the provisions of articles three, four and eight of this chapter as applicable to wine retailers, wineries and suppliers when properly licensed in such capacities.

(c) Payment of taxes and fees. —

(1) The winery or farm winery shall pay all taxes and fees required of licensed wine retailers and meet applicable licensing provisions as required by this chapter and by rule of the commissioner.

(2) Each winery or farm winery acting as its own supplier shall submit to the Tax Commissioner the liter tax for all sales at the winery or farm winery each month, as provided in article eight of this chapter.

(3) The five percent wine excise tax, levied pursuant to §60-3-9d of this code or pursuant to §8-13-7 of this code, may not be imposed or collected on purchases of wine in the original sealed package for the purpose of resale in the original sealed package if the final purchase of such wine is subject to the excise tax or if the purchase is delivered outside this state.

(4) No liter tax shall be collected on wine sold in the original sealed package for the purpose of resale in the original sealed package if a subsequent sale of such wine is subject to the liter tax.

(5) This section shall not be interpreted to authorize a purchase for resale exemption in contravention of §11-15-9a of this code.

(d) Advertising. — A winery or farm winery may advertise a particular brand or brands of wine produced by it and the price of the wine subject to federal requirements or restrictions.

(e) Limitations on licensees. — A winery or farm winery must maintain separate winery or farm winery supplier, retailer and direct shipper licenses when acting in one or more of those capacities and must pay all associated license fees, unless such winery or farm winery holds a license issued pursuant to the provisions §60-8-3-(b)(12) of this code. A winery or farm winery, if holding the appropriate licenses or a multicapacity winery or farm winery license, may act as its own supplier; retailer for off-premises consumption of its wine as specified in section two, article six of this chapter; private wine restaurant; and direct shipper for wine produced by the winery or farm winery. All wineries must use a distributor to distribute and sell their wine in the state, except for farm wineries. No more than one winery or farm winery license may be issued to a single person or entity and no person may hold both a winery and a farm winery license. Farm wineries may enter into alternating wine proprietorship agreements pursuant to §60-1-5a of this code.

(f) For purposes of this section, terms will have the same meaning, where applicable, as provided in §8-13-7(b) of this code, otherwise the meaning shall be applied from §60-1-1 et seq. of this code.

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 than as required in the manufacture thereof under regulations of the commission;

(4) Sell alcoholic liquors to a person specified in §60-3-22 of this code;

(5) Sell alcoholic liquors except as authorized by his or her license, such as, Class A  licensees licensed by §60-7-1 et seq., and §60-8-1 et seq., of this code for on premises consumption shall only sell or serve alcoholic liquors by the drink poured by the licensee directly from the original container at the time of ordering and service of a drink, and no original container or bottle sales are permitted, except for Class A licensees licensed authorized by §60-7-1 et seq., and §60-8-1 et seq., of this code who may, when selling or serving only wine accompanied with freshly prepared food or meals in excess of $15, permit wine bottle service at a dining table comprised of two or more patrons, ages 21 years of age or older, consuming such meal with the table served wine bottle;

(6) Sell any alcoholic liquor when forbidden by the provisions of this chapter;

(7) Sell, possess, possess for sale, furnish or provide any powdered alcohol;

(8) 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.

A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction 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. Upon conviction of a second or subsequent offense, the court may in its discretion impose a penalty of confinement in the penitentiary for a period not to exceed three years A person who violates any provision of this section for the second or any subsequent offense under this section, is guilty of a felony, and upon conviction thereof, shall be imprisoned in a state correction facility for a period not to exceed three years.

ARTICLE 8. SALE OF WINES.


§60-8-3. Licenses; fees; general restrictions.

(a) No person may engage in business in the capacity of a winery, farm winery, supplier, distributor, retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or wine specialty shop without first obtaining a license from the commissioner, nor shall a person continue to engage in any activity after his or her license has expired, been suspended or revoked. No person may be licensed simultaneously as a distributor and a retailer. No person, except for a winery or farm winery, may be licensed simultaneously as a supplier and a retailer. No person may be licensed simultaneously as a supplier and a private wine bed and breakfast, private wine restaurant, or a private wine spa. No person may be licensed simultaneously as a distributor and a private wine bed and breakfast, a private wine restaurant, or a private wine spa. No person may be licensed simultaneously as a retailer and a private wine bed and breakfast, a private wine restaurant, or a private wine spa.

(b) The commissioner shall collect an annual fee for licenses issued under this article as follows:

(1) One hundred fifty dollars per year for a supplier's license;

(2) Twenty-five hundred dollars per year for a distributor's license and each separate warehouse or other facility from which a distributor sells, transfers or delivers wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $2,500 as herein provided;

(3) One hundred fifty dollars per year for a retailer's license;

(4) Two hundred fifty dollars per year for a wine specialty shop license, in addition to any other licensing fees paid by a winery or retailer holding a license, except for the amount of the license fee and the restriction to sales of winery or farm winery wines, a winery, or farm winery acting as a wine specialty shop retailer is subject to all other provisions of this article which are applicable to a wine specialty shop retailer as defined in §60-8-2 of this code;

(5) One hundred fifty dollars per year for a wine tasting license;

(6) One hundred fifty dollars per year for a private wine bed and breakfast license and each separate bed and breakfast from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $150 as herein provided;

(7) Two hundred fifty dollars per year for a private wine restaurant license and each separate restaurant from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $250 as herein provided;

(8) One hundred fifty dollars per year for a private wine spa license and each separate private wine spa from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $150 as herein provided;

(9) One hundred fifty dollars per year for a wine sampling license issued for a wine specialty shop under subsection (n) of this section;

(10) No fee shall be charged for a special one-day license under subsection (p) of this section or for a heritage fair and festival license under subsection (q) of this section;

(11) One hundred fifty dollars per year for a direct shipper's license for a licensee who sells and ships only wine and $250 per for a direct shipper's license who ships and sells wine, nonfortified dessert wine, port, sherry or Madeira wines; and

(12) Three hundred dollars per year for a multicapacity winery or farm winery license which shall enable the holder to operate as a retailer, wine specialty shop, supplier and direct shipper without obtaining an individual license for each capacity.

(c) The license period shall begin on July 1 of each year and end on June 30 of the following year and if granted for a less period, the same shall be computed semiannually in proportion to the remainder of the fiscal year.

(d) No retailer may be licensed as a private club as provided by §60-7-1 et seq., except as provided by subsection (k) of this section.

(e) No retailer may be licensed as a Class A retail dealer in nonintoxicating beer as provided by §11-16-1 et seq. of this code: Provided, That a delicatessen, a caterer or party supply store which is a grocery store as defined in section two of this article and which is licensed as a Class A retail dealer in nonintoxicating beer may be a retailer under this article: Provided, however, That any delicatessen, caterer or party supply store licensed in both capacities must maintain average monthly sales exclusive of sales of wine and nonintoxicating beer which exceed the average monthly sales of nonintoxicating beer.

(f) A wine specialty shop under this article may also hold a wine tasting license authorizing the retailer to serve complimentary samples of wine in moderate quantities for tasting. Such wine specialty shop shall organize a wine taster's club, which has at least 50 duly elected or approved dues-paying members in good standing. Such club shall meet on the wine specialty shop's premises not more than one time per week and shall either meet at a time when the premises are closed to the general public, or shall meet in a separate segregated facility on the premises to which the general public is not admitted. Attendance at tastings shall be limited to duly elected or approved dues-paying members and their guests.

(g) A retailer who has more than one place of retail business shall obtain a license for each separate retail establishment. A retailer's license may be issued only to the proprietor or owner of a bona fide grocery store or wine specialty shop.

(h)(A) The commissioner may issue a special license for the retail sale of wine at any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission. Such special license shall be issued for a term of no longer than 10 consecutive days and the fee therefor shall be $250 regardless of the term of the license. unless the applicant is the manufacturer of said wine on a winery or a farm winery as defined in section five-a, article one of this chapter, in which event the fee shall be $50 if the event is held on the premises of the winery or farm winery The application for the license shall contain information as the commissioner may reasonably require and shall be submitted to the commissioner at least 30 days prior to the first day when wine is to be sold at the festival or fair.

(B) Notwithstanding subdivision (h)(A) of this section, if the applicant for the festival or fair license is the manufacturer of said wine, a winery or a farm winery as defined in §60-1-5a of this code, and the event is located on the premises of a winery or a farm winery then the license fee shall be $50 per festival or fair.

(C) A licensed winery or a farm winery, licensed under this subsection who has the festival or fair licensee’s written authorization and approval from the commissioner, may, in addition to or in conjunction with the festival and fair licensee, exhibit, conduct complimentary tastings or sell samples not to exceed a reasonable serving of three, 2 fluid ounces, and may sell wine samples tastings or samples per patron, for consumption on the premises during the operation of a festival or fair only; and may sell wine for off-premises consumption only: Provided, That for licensed wineries or farm wineries at a licensed festival or fair the tastings, samples and off-premises sales shall occur under the hours of operation as required in this article, except that on Sunday, tastings, samples and off-premises sales are unlawful between the hours of 2:00 a. m. and 10:00 a. m.

(D) A special festival or fair license for a license fee of $250 may be issued other than to a winery or a farm winery, but may be issued to a “wine club” as defined herein below. The festival or fair committee or the governing body shall designate a person to organize a club under a name which includes the name of the festival or fair and the words “wine club”. The license shall be issued in the name of the wine club. A licensee may not commence the sale of wine as provided in this subsection until the wine club has at least 50 dues-paying members who have been enrolled, and to whom membership cards have been issued. Thereafter, new members may be enrolled and issued membership cards at any time during the period for which the license is issued. A wine club licensed under the provisions of this subsection may sell wine only to its members, and in portions not to exceed eight ounces per serving. The sales shall take place on premises or in an area cordoned or segregated so as to be closed to the general public, and the general public shall not be admitted to the premises or area. A wine club licensee under the provisions of this subsection shall be authorized to serve complimentary samples of wine in moderate quantities for tasting. Such a wine club shall not be permitted to make wine purchases from a direct shipper where such wine may be consumed on the licensed premises of any Class. A private wine retail license or private club, and further shall be subject to the penalties in this article.

(E) A license licensed winery or farm winery approved to attend a festival or fair license issued under the provisions of this subsection section and the licensee holding the license, or the licensed winery or farm winery approved to attend a licensed festival or fair, shall be subject to all other provisions of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule, regulation, or order provide for certain waivers or exceptions with respect to the provisions, rules, regulations or orders as the circumstances of each festival or fair may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding the provisions §60-8-27 and §60-8-28 of this code: Provided, however, That under no circumstances shall the provisions of §60-8-20(c) or §60-8-20(d) of this code be waived nor shall any exception be granted with respect thereto.

(F) A license issued under the provisions of this subsection section and the licensee holding the license is not subject to the provisions of subsection (g) of this section.

(i) (A) The commissioner may issue a special license for the retail sale of wine in a professional baseball stadium. A license to sell wine granted pursuant to this subsection entitles the licensee to sell and serve wine, for consumption in a professional baseball stadium. For the purpose of this subsection, “professional baseball stadium” means a facility constructed primarily for the use of a major or minor league baseball franchisee affiliated with the National Association of Professional Baseball Leagues, Inc., or its successor, and used as a major or minor league baseball park. Any special license issued pursuant to this subsection shall be for a term beginning on the date of issuance and ending on the next following June 30, and its fee is $250 regardless of the length of the term of the license. The application for the special license shall contain information as the commissioner may reasonably require and must be submitted to the commissioner at least 30 days prior to the first day when wine is to be sold at the professional baseball stadium. The special license may be issued in the name of the baseball franchisee or the name of the primary food and beverage vendor under contract with the baseball franchisee. These sales must take place within the confines of the professional baseball stadium, provided that the exterior of the area where wine sales may occur are surrounded by a fence or other barrier prohibiting entry except upon the franchisee's express permission, and under the conditions and restrictions established by the franchisee, so that the wine sales area is closed to free and unrestricted entry by the general public.

(B) A license issued under this subsection and the licensee holding the license is subject to all other provisions of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule or order grant certain waivers or exceptions to those rules or orders as the circumstances of each professional baseball stadium may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding §60-8-27 and §60-8-28 of this code: Provided, however, That under no circumstances may §60-8-20(c) or §60-8-20(d) of this code be waived nor shall any exception be granted concerning those subsections.

(C) The commissioner has the authority to propose rules for legislative approval in accordance with §29A-3-1 et seq., of this code to implement this subsection.

(j) A license to sell wine granted to a private wine bed and breakfast, private wine restaurant, private wine spa, or a private club under the provisions of this article entitles the operator to sell and serve wine, for consumption on the premises of the licensee, when the sale accompanies the serving of food or a meal to its members and their guests in accordance with the provisions of this article: Provided, That a licensed private wine bed and breakfast, private wine restaurant, private wine spa, or a private club may permit a person over 21 years of age to purchase wine, consume wine and recork or reseal, using a tamper resistant cork or seal, up to two separate bottles of unconsumed wine in conjunction with serving of food or a meal to its members and their guests in accordance with the provisions of this article and in accordance with regulations promulgated by the commissioner for the purpose of consumption of said wine off premises: Provided, however, That for this article, food or a meal provided by the private licensee means that the total food purchase, excluding beverage purchases, taxes, gratuity or other fees is at least $15: Provided further, That a licensed private wine restaurant or a private club may offer for sale for consumption off the premises, sealed bottles of wine to its customers provided that no more than one bottle is sold per each person over 21 years of age, as verified by the private wine restaurant or private club, for consumption off the premises. Such licensees are authorized to keep and maintain on their premises a supply of wine in quantities as may be appropriate for the conduct of operations thereof. Any sale of wine so made shall be subject to all restrictions set forth in §60-8-20 of this code. A private wine restaurant may also be licensed as a Class A retail dealer in nonintoxicating beer as provided by §11-16-1 et seq. of this code.

(k) With respect to subsections (h), (i), (j), (o) and (p) of this section, the commissioner shall promulgate legislative rules in accordance with the provisions of §29A-1-1 et seq. of this code with regard to the form of the applications, the suitability of both the applicant and location of the licensed premises and other legislative rules deemed necessary to carry the provisions of the subsections into effect.

(l) The commissioner shall promulgate legislative rules in accordance with the provisions of §29A-1-1 et seq. of this code to allow restaurants to serve wine with meals, and to sell wine by the bottle for off-premises consumption as provided in subsection (j) of this section. Each restaurant so licensed shall be charged an additional $100 per year fee.

(m) The commissioner shall establish guidelines to permit wines to be sold in all stores licensed for retail sales.

(n) Wineries and farm wineries may advertise off premises as provided in §17-22-7 of this code.

(o) A wine specialty shop under this article may also hold a wine sampling license authorizing the wine specialty shop to conduct special wine sampling events at a licensed wine specialty shop location during regular hours of business. The wine specialty shop may serve up to three complimentary samples of wine, consisting of no more than one ounce two fluid ounces each, to any one consumer in one day. Persons serving the complimentary samples must be 21 years of age and an authorized representative of the licensed wine specialty shop, winery, farm winery or a representative of a distributor or registered supplier. Distributor and supplier representatives attending wine sampling events must be registered with the commissioner. No licensee, employee or representative may furnish, give, sell, or serve complimentary samples of wine to any person less than 21 years of age or to a person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs. The wine specialty shop shall notify and secure permission from the commissioner for all wine sampling events one month prior to the event. Wine sampling events may not exceed six hours per calendar day. Licensees must purchase all wines used during these events from a licensed farm winery or a licensed distributor.

(p) The commissioner may issue special one-day licenses to duly organized, nonprofit corporations and associations allowing the sale and serving of wine, and may, if applicable, also allow the charitable auctioning of certain sealed bottles of wine for off-premises consumption only, when raising money for athletic, charitable, educational or religious purposes. Auction or auctioning, for this subsection, shall mean any silent, physical act or verbal bid auction, whether or not such auction requires in-presence bidding or online-Internet based electronic bidding through a secure application or website, but shall not include any such action in violation of §47-20-10, §47-20-11 or §61-10-1 et seq. of this code. The license application shall contain information as the commissioner may reasonably require and shall be submitted to the commissioner at least 30 days prior to the event. Wines used during these events may be donated by or purchased from a licensed retailer, a distributor or a farm winery. A licensed farm winery that: Is authorized in writing by a representative of the duly organized, nonprofit corporation and association which has obtained the one-day license; is in good standing with the state; and obtains the commissioner’s approval prior to the one-day license event may, in conjunction with the one-day licensee, exhibit; conduct complimentary tastings or sell samples not to exceed a reasonable serving of three, 2 fluid ounces, tastings or samples per patron, for consumption on the premises during the operation of the one-day license event; and may sell certain sealed wine bottles manufactured by the licensed farm winery for off-premises consumption: Provided, That for a licensed farm winery at a licensed one-day event the tastings, samples and off-premises sales shall occur under the hours of operation as required in this article, except on Sunday, tastings, samples and off-premises sales are unlawful between the hours of 2:00 o’clock a.m. and 10:00 o’clock a.m., from the one-day licensee’s submitted floor plan for the event subject to the requirements in the code and rules. Under no circumstances may the provision provisions of §60-8-20(c) or §60-8-20(f) of this code be waived nor may any exception be granted with respect thereto.

(q) The commissioner may issue special licenses to heritage fairs and festivals allowing the sale, serving, and sampling of wine from a licensed farm winery. The license application shall contain information required by the commissioner and shall be submitted to the commissioner at least 30 days prior to the event. Wines used during these events may be donated by or purchased from a licensed farm winery. Under no circumstances may the provision of §60-8-20(c) of this code be waived nor may any exception be granted with respect thereto. The commissioner shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement the provisions of this subsection.

(r)(1) The commissioner may issue a special license for the retail sale of wine in a college stadium. A license to sell wine granted pursuant to this subsection entitles the licensee to sell and serve wine for consumption in a college stadium. For the purpose of this subsection, “college stadium” means a facility constructed primarily for the use of a Division I, II, or III college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer or other Division I, II or III sports stadium. A special license issued pursuant to this subsection shall be for a term beginning on the date of its issuance and ending on the next following June 30, and its fee is $250 regardless of the length of the term of the license. The application for the special license shall contain information as the commissioner may reasonably require and must be submitted to the commissioner at least 30 days prior to the first day when wine is to be sold. The special license may be issued in the name of the National Collegiate Athletic Association Division I, II or III college or university or the name of the primary food and beverage vendor under contract with that college or university. These sales must take place within the confines of the college stadium:  Provided, That the exterior of the area where wine sales may occur are surrounded by a fence or other barrier prohibiting entry except upon the college or university's express permission, and under the conditions and restrictions established by the college or university, so that the wine sales area is closed to free and unrestricted entry by the general public.

(2) A license issued under this subsection and the licensee are subject to the other requirements of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule or order grant certain waivers or exceptions to those rules or orders as the circumstances of each the college stadium may require, including, without limitation, the right to revoke or immediately suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding §60-8-27 and §60-8-28 of this code: Provided, however, That subsection §60-8-20(c) or §60-8-20(d) of this code may not be waived, nor shall any exception be granted concerning those subsections.

(3) The commissioner may propose rules for legislative approval in accordance with §29A-3-1 et seq., of this code to implement this subsection.

§60-8-17. License issuance or refusal; terms of license.


(a) Upon receipt of the completed application, fee, and bond if required, the commissioner shall conduct such investigation as he or she may deem necessary to determine the accuracy of the matters contained in the completed application. For the purposes of conducting such investigation, the commissioner may withhold the granting or refusal to grant a license for a period not to exceed 30 days or until the applicant has completed the conditions set forth in §60-8-16 of this code. If it appears that the applicant is a suitable person, is located at a suitable premises and there is no false statement, no material misrepresentations, no hidden ownership, no persons with an undisclosed pecuniary interest contained in the such application along with no other omissions or failures by the applicant to complete the application, all as determined by the commissioner, and that the issuance of the license would not be in conflict with any of the provisions of this chapter, the commissioner shall issue the license, and otherwise shall refuse to issue such license.

(b) The commissioner shall refuse the license of any applicant if he or she finds that such applicant is not a suitable person or that the place of business of such applicant is not a suitable place or that such applicant has not complied with the provisions of this chapter. Upon refusal to issue such license, the commissioner shall enter an order refusing such application, which refusal is final unless a hearing is requested in accordance with the provisions of section 18 of this article. When such refusal becomes final the commissioner shall forthwith refund to the applicant his or her fees and bond accompanying said application.

(c) Such license shall expire on June 30 next following the date it was issued and may be renewed upon the same showing as required for the issuance of the initial license, together with the payment of fee and filing of any bond required by this article.

(d) A licensee that fails to complete a renewal application and make payment of its annual license fee in renewing its license on or before June 30 of any subsequent year, after initial application, shall be charged an additional $150 reactivation fee. The fee payment may not be prorated or refunded, and must be paid prior to the processing of any renewal application and payment of the applicable full year annual license fee. A licensee who continues to operate upon the expiration of its license is subject to all fines, penalties and sanctions available in §11-16-23 of this code, all as determined by the commissioner.

(d) (e) Such license shall not be transferred to another person, but the location of the premises to which the license relates may be changed with the written consent of the commissioner if the new location is such as would satisfy the requirements of this article upon an initial application and payment of a new application fee.


§60-8-20. Unlawful acts generally.


It shall be unlawful:

(a) For a supplier or distributor to sell or deliver wine purchased or acquired from any source other than a person registered under the provisions §60-8-6 of this code or for a retailer to sell or deliver wine purchased or acquired from any source other than a licensed distributor or a farm winery as defined in §60-1-5a of this code;

(b) Unless otherwise specifically provided by the provisions of this article, for a licensee under this article to acquire, transport, possess for sale, tender, or sell, or serve wine other than in the original package and by the drink, except as authorized in §60-6-8 of this code;

(c) For a licensee, his or her servants, agents or employees to sell, furnish or give wine to any person less than 21 years of age, or to a mental incompetent or person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs: Provided, That the provisions §60-3A-25a of this code shall apply to sales of wine;

(d) For a licensee to permit a person who is less than 18 years of age to sell, furnish, serve or give wine to any person;

(e) For a supplier or a distributor to sell or deliver any brand of wine purchased or acquired from any source other than the primary source of supply of the wine which granted the distributor the right to sell the brand at wholesale. For the purposes of this article, “primary source of supply” means the vintner of the wine, the importer of a foreign wine who imports the wine into the United States, the owner of a wine at the time it becomes a marketable product, the bottler of a wine or an agent specifically authorized by any of the above-enumerated persons to make a sale of the wine to a West Virginia distributor: Provided, That no retailer shall sell or deliver wine purchased or acquired from any source other than a distributor or farm winery licensed in this state: Provided, however, That nothing herein is considered to prohibit 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, of which brand or brands the other distributor has been authorized by a licensed supplier to distribute. The commissioner shall promulgate rules necessary to carry out the provision of this subsection;

(f) For a person to violate any reasonable rule promulgated by the commissioner under this article;

(g) Nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be considered to prohibit any licensee from employing any person who is at least 18 years of age to serve in any licensee's lawful employment, including the sale, service or delivery of wine under the provisions of 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 18 years of age but at least 16 years of age: Provided, That the person's duties may not include the sale or delivery of nonintoxicating beer or alcoholic liquors: Provided, however, That the authorization to employ persons under the age of 18 years shall be clearly indicated on the licensee's license.

NOTE: The purpose of this bill is to revise certain wine code sections to permit wine alternating wine proprietorships as permitted under federal law; to clarify wine sampling procedures for wineries and farm wineries up to 2 fluid ounces at certain fairs and festivals along with wine bottle sales for off-premises consumption only; to permit the auction of wine at certain charitable events; to clarify liquor and wine must be sold by the drink at certain on-premises licenses but that wine bottle sales are permitted under certain conditions at certain on-premises locations; to permit Division II and II colleges to apply for private wine stadium licenses; providing a 30 day licensing requirement to issue or deny a license; and to encourage licensees to apply for renewals of their license in a timely and effective manner but if they fail to do so a re-activation fee will be applied prior to their renewal.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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