H. B. 2261
(By Delegates Fleischauer, Marshall,
Yeager, Amores and Williams)
[Introduced February 16, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fifteen, article two, chapter
sixty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section twelve,
article six of said chapter; and to amend and reenact sections
three and six, article eight of said chapter, all relating to
allowing wine specialty shops to deliver wine locally and to
ship wine in and out of the state; requiring a person
twenty-one years old or older to sign for delivery; requiring
a label to accompany delivery that provides the delivery
contains an alcoholic beverage and that a person twenty-one
years old or older must sign for delivery; and to allow wine
specialty shops to advertise wine and beer as part of a gift basket or beer kit in catalogues and on the internet.
Be it enacted by the Legislature of West Virginia:
That section fifteen, article two, chapter sixty of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section twelve, article six of said
chapter be amended and reenacted; and that sections three and six,
article eight of said chapter be amended and reenacted, all to read
as follows:
ARTICLE 2. ALCOHOL BEVERAGE CONTROL COMMISSIONER.
§60-2-15. Regulation of advertising.
The commission shall prescribe regulations governing the
advertising of alcoholic liquors in this state. The regulations
shall prohibit advertising that encourages intemperance, induces
minors to purchase, or tends to deceive or misrepresent. The
commissioner may not, however, prohibit the advertising by wine
specialty shops, as defined by section two, article eight of this
chapter, of wine or beer that is advertised in conjunction with or
as a component of, a gift basket or beer kit.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-12. Transportation of alcoholic liquors into or through
state; permits; bond of permittee.
The commission may adopt regulations governing the
transportation of alcoholic liquors, lawfully acquired, within,
into or through the state in quantities in excess of
one gallon ten
gallons as it may
deem consider necessary to confine
such the
transportation to legitimate purposes and may issue transportation
permits in accordance with
such the regulations, collect a fee
therefor, and shall require each person to whom
such a permit is
issued to furnish a bond in
such the form and amount and with
such
surety as the commission shall direct, conditioned that he
or she
will exercise the privileges granted by
such the permit in
conformity with the provisions of this chapter and the regulations
of the commission, or in default thereof forfeit to the state
school fund the sum of one hundred dollars for each breach
recoverable by motion upon ten days' notice in any court having
jurisdiction of the parties:
Provided, That the commissioner shall
allow wine specialty shops, as defined by section three, article
eight of this chapter, to deliver and transport or cause to be
delivered or transported, wine and beer in and through the state
that is sold in conjunction with or as a component of, a gift
basket or beer kit: Provided, however, That no delivery may be
completed under this section unless receipt of the gift basket or beer kit is consummated upon the signature of a person twenty-one
years old or older: Provided further, That any gift basket or beer
kit delivered under this provision shall contain a label,
prominently displayed, which shall notify the person upon whose
request the article was shipped that the article contains an
alcoholic beverage and that the signature of an adult twenty-one
years old or older is required before delivery may be made.
A person who, without authorization under this chapter,
transports alcoholic liquors in quantities in excess of
one gallon
ten gallons or in any amount for the purpose of sale or in any
amount manufactured or acquired contrary to the provisions of this
chapter, shall be guilty of a misdemeanor and, upon conviction,
shall be fined not less than one hundred nor more than five hundred
dollars, or confined in jail not to exceed one year, or both
such
fine and imprisonment for the
an first offense. Upon conviction of
a second or subsequent offense, he
or she shall be guilty of a
felony and confined in
the penitentiary a correctional facility of
this state for a period of not less than one nor more than three
years.
ARTICLE 8. SALE OF WINES.
§60-8-3. Licenses; fees; general restrictions.
(a) Except as to farm wineries as defined by section five-a,
article one of this chapter, no person may engage in business in
the capacity of a distributor, retailer or private wine restaurant
without first obtaining a license from the commissioner, nor shall
a person continue to engage in any
such activity after his
or her
license has expired, been suspended or revoked. No person may be
licensed simultaneously as a distributor and a retailer, as a
distributor and a private wine restaurant, or as a retailer and a
private wine restaurant.
(b) The commissioner shall collect an annual fee for licenses
issued under this article, as follows:
(1) 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
such
location the annual license fee of twenty-five hundred dollars as
herein provided;
(2) One hundred fifty dollars per year for a retailer's
license;
(3) Fifty dollars per year for a wine tasting license;
(4) Fifty dollars for each sales representative of or employed by a licensed distributor;
(5) 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
such location the annual license fee
of two hundred fifty dollars as herein provided;
(6) Twenty-five dollars per year for a West Virginia wine
retailer's license, and each separate retail outlet from which a
West Virginia wine retailer sells West Virginia wine shall be
separately licensed and there shall be collected with respect to
each
such location the annual license fee of twenty-five dollars as
herein provided. The holder of
such a license may sell no wines
except those produced by West Virginia farm wineries as defined by
section five-a, article one of this chapter. Except for the amount
of the license fee and the restriction to sales of West Virginia
wines, a West Virginia wine retailer is subject to all other
provisions of this article which are applicable to a retailer as
defined in section two of this article.
(c) The license period shall begin on the first day of July of
each year and end on the thirtieth day of June 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 article seven of this chapter.
(e) No retailer may be licensed as a Class A retail dealer in
nonintoxicating beer as provided by article sixteen, chapter eleven
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
such 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 retailer under this article may also hold a wine tasting
license authorizing
such the retailer to serve complimentary
samples of wine in moderate quantities for tasting.
Such The
retailer shall organize a winetaster's club, which has at least
fifty duly elected or approved dues paying members in good
standing.
Such The club shall meet on the retailer'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) 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 The special license shall be issued for a term of
no longer than ten consecutive days and the fee therefor shall be
two hundred fifty dollars regardless of the term of the license
unless the applicant is the manufacturer of
said the wine on a farm
winery as defined in section five-a, article one of this chapter,
in which event the fee shall be twenty-five dollars. The
application for
such a license shall contain
such information as
the commissioner may reasonably require and shall be submitted to
the commissioner at least thirty days prior to the first day when
wine is to be sold at
such the festival or fair. A farm winery
licensed under this subsection may exhibit, conduct tastings, not to exceed a reasonable serving, and may sell wine only for
consumption off the premises of
such the festival or fair. A
special license issued other than to a farm winery may be issued to
a "wine club" as defined hereinbelow. 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 for in this subsection until the wine
club has at least fifty 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.
Such 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
such 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.
A license issued under the provisions of this subsection and
the licensee holding
such the license shall be subject to all other
provisions of this article and the rules, regulations and orders of
the commissioner relating to
such the special license:
Provided,
That the commissioner may by rule, regulation or order provide for
certain waivers or exceptions with respect to
such the provisions,
rules, regulations, or orders as the circumstances of each
such
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 of section twelve of this article:
Provided, however,
That under no circumstances shall the provisions of subsection (c)
or (d), section twenty of this article be waived nor shall any
exception be granted with respect thereto.
A license issued under the provisions of this subsection and
the licensee holding
such the license shall not be subject to the
provisions of subsection (g) of this section.
(i) A license to sell wine granted to a private wine
restaurant under the provisions of this article entitles the
operator to sell and serve wine, for consumption on the premises
of the licensee, when
such the sale accompanies the serving of food or a meal to its members and their guests in accordance with the
provisions of this article.
Such The licensees are authorized to
keep and maintain on their premises a supply of wine in such
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 section twenty of this article. A
private wine restaurant may also be licensed as a Class A retail
dealer in nonintoxicating beer as provided by article sixteen,
chapter eleven of this code.
(j) With respect to subsections (h) and (i) of this section,
the commissioner shall promulgate legislative rules in accordance
with the provisions of chapter twenty-nine-a of this code with
regard to the form of the applications, the suitability of both the
applicant and location of the licensed premises and
such any other
legislative rules
deemed considered necessary to carry the
provisions of
such the subsections into effect.
(k) The commissioner shall promulgate legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code to allow restaurants to serve West Virginia wine with meals,
but not to sell the wine by the bottle. Each restaurant so
licensed shall be charged a fee less than that charged for a wine license to a retail outlet,
such the fees to be set forth in the
aforementioned rules promulgated pursuant to this subsection.
(l) The commissioner shall establish guidelines to permit West
Virginia wines to be sold in state stores.
(m) Farm wineries as defined in section one-a of this article
and wine specialty shops as defined in section two of this article
may advertise off premises as provided in section seven, article
twenty-two, chapter seventeen and in any other media, including,
but not limited to, newspaper, radio, television, magazines,
catalogues, the internet and direct mail solicitation.
§60-8-6. License or registration required for sale or shipment of
wine; shipment of limited quantities of wine to adult
residents permitted.
(a) Except as to the commissioner and except as provided in
subsection (b) of this section
and section twelve, article six of
this chapter, no person may offer for sale or sell wine in this
state, or offer wine for shipment into this state, except to a
distributor who is duly licensed under this article. Every person,
whether resident or nonresident in this state, who is engaged in or
desires to engage in the sale or shipment of wine to a distributor
for resale under this article shall, prior to engaging in such activities, register with the commissioner. If any
such person
violates the provisions of this article, he shall not be permitted
to sell, ship or deliver any wine to a distributor or to the
commissioner, or otherwise engage in the wine business in this
state for a period of one year from the date a notice is mailed to
such the person by the commissioner of the fact that
such the
person has violated the provisions of this article. During
such a
one-year period, it shall be unlawful for any distributor within
this state to buy or receive wine from
such any person or to have
any dealings with
such the person with respect thereto. Hearings
and appeals on
such notices may be had in the same manner as in the
case of revocations of licenses under this article.
(b) Notwithstanding the provisions of this chapter or any
other law to the contrary, an adult resident or a duly licensed
retailer or distributor of alcoholic beverages in a state or nation
which affords adults and duly licensed retailers and distributors
of this state an equal reciprocal shipping privilege may ship, for
personal use and not for resale, not more than two cases of wine
per month, not to exceed eighteen liters of wine in any month to
any adult resident in this state. Delivery of a shipment pursuant
to this section
shall is not
be deemed considered to constitute a sale in this state. The shipping container of any wine sent into
or out of this state under this subsection shall be clearly labeled
to indicate that the package cannot be delivered to any person
under the age of twenty-one or to an intoxicated person. No adult
resident or duly licensed retailer or distributor may advertise the
availability of wines by shipment to residents of this state.
NOTE: The purpose of this bill is to allow wine specialty
shops to deliver wine locally and to ship wine in and out of the
state. The bill requires that a person twenty-one years old or
older must sign for the delivery before it can be completed. The
bill also allows wine specialty shops to advertise wine and beer as
part of a gift basket or beer kit in catalogues and on the
internet.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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