H. B. 2536
(By Delegates Doyle, Palumbo and Brown)
[Introduced January 25, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §60-1-5 of the Code of West Virginia,
1931, as amended; to amend and reenact §60-3A-17 of said code;
and to amend and reenact §60-7-3 and §60-7-11 of said code,
all relating to the distribution and sale of "craft beer";
defining craft beer; clarifying the statutory obligation of
the Alcohol Beverage Control Commissioner to obtain, on
request, any craft beer requested by a retail liquor licensee;
clarifying the commissioner's ability to approve the storage
of craft beer by a retail licensee at a site other than the
retail outlet or outlets, on request; and clarifying the
ability of a private club with an existing license to sell
craft beer to its patrons.
Be it enacted by the Legislature of West Virginia:
That §60-1-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §60-3A-17 of said code be amended and reenacted; and that §60-7-3 and §60-7-11 of said code be
amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§60-1-5. Definitions.
For the purposes of this chapter:
"Alcohol" shall mean ethyl alcohol whatever its origin and
shall include synthetic ethyl alcohol but not denatured alcohol.
"Beer" shall mean any beverage obtained by the fermentation of
barley, malt, hops or any other similar product or substitute, and
containing more alcohol than that of nonintoxicating beer.
"Nonintoxicating beer" shall mean any beverage, obtained by
the fermentation of barley, malt, hops or similar products or
substitute, and containing not more alcohol than that specified by
section
two three, article sixteen, chapter eleven
of this code.
"Craft beer" means any beverage, obtained by the fermentation
of barley, malt, hops or any other similar product or substitute
and containing not less than six percent and not more than fifteen
percent alcohol by volume, which does not meet the current
definition of "nonintoxicating beer", as specified by section
three, article sixteen, chapter eleven
of this code.
"Wine" shall mean any alcoholic beverage obtained by the
fermentation of the natural content of fruits, or other
agricultural products, containing sugar.
"Spirits" shall mean any alcoholic beverage obtained by distillation and mixed with potable water and other substances in
solution, and includes brandy, rum, whiskey, cordials and gin.
"Alcoholic liquor" shall include alcohol, beer, wine and
spirits, and any liquid or solid capable of being used as a
beverage, but shall not include nonintoxicating beer.
"Original package" shall mean any closed or sealed container
or receptacle used for holding alcoholic liquor.
"Sale" shall mean any transfer, exchange or barter in any
manner or by any means, for a consideration, and shall include all
sales made by principal, proprietor, agent or employee.
"Selling" shall include solicitation or receipt of orders;
possession for sale; and possession with intent to sell.
"Person" shall mean an individual, firm, partnership, limited
partnership, corporation or voluntary association.
"Manufacture" means to distill, rectify, ferment, brew, make,
mix, concoct, process, blend, bottle or fill an original package
with any alcoholic liquor.
"Manufacturer" shall mean any person engaged in the
manufacture of any alcoholic liquor, and among others includes a
distiller, a rectifier, a wine maker and a brewer.
"Brewery" shall mean an establishment where beer is
manufactured or in any way prepared.
"Winery" shall mean an establishment where wine is
manufactured or in any way prepared.
"Distillery" shall mean an establishment where alcoholic
liquor other than wine or beer is manufactured or in any way
prepared.
"Public place" shall mean any place, building or conveyance to
which the public has, or is permitted to have access, including
restaurants, soda fountains, hotel dining rooms, lobbies and
corridors of hotels and any highway, street, lane, park or place of
public resort or amusement: Provided, That the term "public place"
shall not mean or include any of the above-named places or any
portion or portions thereof which qualify and are licensed under
the provisions of this chapter to sell alcoholic liquors for
consumption on the premises.
"State liquor store" shall mean a store established and
operated by the commission under this chapter for the sale of
alcoholic liquor in the original package for consumption off the
premises.
"An agency" shall mean a drugstore, grocery store or general
store designated by the commission as a retail distributor of
alcoholic liquor for the West Virginia Alcohol Beverage Control
Commissioner.
"Department" shall mean the organization through which the
commission exercises powers imposed upon it by this chapter.
"Commissioner" or "Commission" shall mean the West Virginia
Alcohol Beverage Control Commissioner.
"Intoxicated" shall mean having one's faculties impaired by
alcohol or other drugs to the point where physical or mental
control or both are markedly diminished.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§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, including craft beer, 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, including craft
beer, 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.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§60-7-3. Sale of alcoholic liquors and nonintoxicating beer by
licensee authorized.
Notwithstanding any other provisions of this code to the
contrary, licensees are hereby authorized to sell alcoholic
liquors, including craft beer, other than in sealed packages, for
consumption on the premises of the licensees, to their members and
their guests in accordance with the provisions of this article.
The licensees may keep and maintain on their premises a supply of
those alcoholic liquors in such quantities as may be appropriate
for the conduct of operations thereof.
§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,
including craft beers, sold by them from the West Virginia Alcohol Beverage Control Commissioner at prices established by the
commissioner for sales of 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 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 the distributors sell
the wines to retailers licensed pursuant to said article.
(2) A licensee may by contract approved by the commissioner
receive deliveries of alcoholic liquor, including craft beers, 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 the manner required by the Tax Commissioner.
(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.
NOTE: The purpose of this bill is to create a statutory
definition for craft beer, and to clarify that craft beer may be
properly and legally obtained and sold by licensed liquor retailers
and private clubs holding a license to sell alcoholic liquors. The
bill also reinforces and clarifies the statutory obligation of the
Alcohol Beverage Control Commission to supply craft beer on the
request of a licensed liquor retailer, whenever possible, and may
permit a retail licensee to store craft beer at a site other than
the retail outlet or outlets, on request.
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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