WEST virginia
legislature
2017 regular session
By
[
to the Committee on the Judiciary
A BILL to amend and
reenact §60-8-3 of the Code of West
Virginia, 1931, as amended, relating to special licenses for the retail sale of
wine at festivals or fairs; and making the license period one year.
Be it enacted by the
Legislature of West Virginia:
That §60-8-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
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 section two of this article;
(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;
and
(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.
(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 article seven of this chapter, 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
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 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 fifty 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) The commissioner may
issue a special license for the retail sale of wine at any festival or fair
festivals or fairs which is are 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 one year and the fee therefor shall be $250 regardless of the term
of the license number of festivals or fairs held during the year, 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 for events 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 thirty days prior to the first day when wine is to
be sold at the festival or fair. A winery or a farm winery licensed under this
subsection may exhibit, conduct tastings or sell samples, not to exceed a
reasonable serving of three ounces, and may sell wine samples for consumption
on the premises during the operation of a festival or fair: 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. A special license issued other than to a winery or a farm winery 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 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. 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.
A license issued under the
provisions of this subsection and the licensee holding the license 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 of
section twenty-seven and twenty-eight 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 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 thirty 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 sections
twenty-seven and twenty-eight of this article: Provided, however, That
under no circumstances may subsection (c) or (d), section twenty of this
article 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
article three, chapter twenty-nine-a 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
twenty-one 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 twenty-one 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 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.
(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 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
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 chapter
twenty-nine-a 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 section seven, article
twenty-two, chapter seventeen 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 each, to any one consumer in one day. Persons serving the complimentary
samples must be twenty-one 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 or serve complimentary
samples of wine to any person less than twenty-one 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 when raising money for
athletic, charitable, educational or religious purposes. The license
application shall contain information as the commissioner may reasonably
require and shall be submitted to the commissioner at least thirty 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. Under no
circumstances may the provision of subsection (c), section twenty of this
article 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 thirty 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 subsection (c), section
twenty of this article be waived nor may any exception be granted with respect
thereto. The commissioner shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a 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 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 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 thirty 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 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 suspend any license issued pursuant to this section prior to any
notice or hearing notwithstanding sections twenty-seven and twenty-eight of
this article: Provided, however, That subsection (c) or (d), section
twenty of this article 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 article three,
chapter twenty-nine-a of this code to implement this subsection.
NOTE: The purpose of this bill is
to make the special license term for the retail sale of wine at festivals or
fairs one year.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.