Adopted by House 3-8-07
SB712 H A&N AM 3-5
The Committee on Agriculture and Natural Resources moves to
amend the bill on page three, by striking everything after the
enacting clause by inserting the following:
"
That §11-10-5s of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §17-22-7 of said code be amended and
reenacted; that §60-1-5a of said code be amended and reenacted;
that §60-3A-18 of said code be amended and reenacted; that §60-4-2,
§60-4-3, §60-4-3a, §60-4-15 and §60-4-22 of said code be amended
and reenacted; that said code be amended by adding thereto a new
section, designated §60-4-3b; that §60-6-1 and §60-6-2 of said code
be amended and reenacted; that §60-8-1, §60-8-2, §60-8-3, §60-8-4,
§60-8-5, §60-8-6, §60-8-7, §60-8-16, §60-8-18, §60-8-19, §60-8-20,
§60-8-23, §60-8-24, §60-8-25, §60-8-26, §60-8-28, §60-8-29, §60-8-
30, §60-8-31, §60-8-32 and §60-8-34 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §60-8-6a, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-5s. Disclosure of certain taxpayer information.
(a) Purpose. -- The Legislature hereby recognizes the importance of confidentiality of taxpayer information as a
protection of taxpayers' privacy rights and to enhance voluntary
compliance with the tax law. The Legislature also recognizes the
citizens' right to accountable and efficient state government. To
accomplish these ends, the Legislature hereby creates certain
exceptions to the general principle of confidentiality of taxpayer
information.
(b) Exceptions to confidentiality. --
(1) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner shall publish in the State Register
the name and address of every taxpayer, and the amount, by
category, of any credit asserted on a tax return under articles
thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g,
thirteen-q, thirteen-r and thirteen-s of this chapter and article
one, chapter five-e of this code. The categories by dollar amount
of credit received shall be as follows:
(A) More than one dollar, but not more than fifty thousand
dollars;
(B) More than fifty thousand dollars, but not more than one
hundred thousand dollars;
(C) More than one hundred thousand dollars, but not more than
two hundred fifty thousand dollars;
(D) More than two hundred fifty thousand, but not more than
five hundred thousand dollars;
(E) More than five hundred thousand dollars, but not more than
one million dollars; and
(F) More than one million dollars.
(2) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner shall publish in the State Register
the following information regarding any compromise of a pending
civil tax case that occurs on or after the effective date of this
section in which the Tax Commissioner is required to seek the
written recommendation of the Attorney General and the Attorney
General has not recommended acceptance of the compromise or when
the Tax Commissioner compromises any civil tax case for an amount
that is more than two hundred fifty thousand dollars less than the
assessment of tax owed made by the Tax Commissioner:
(A) The names and addresses of taxpayers that are parties to
the compromise;
(B) A summary of the compromise;
(C) Any written advice or recommendation rendered by the
Attorney General regarding the compromise; and
(D) Any written advice or recommendation rendered by the Tax
Commissioner's staff.
Under no circumstances may the tax return of the taxpayer or
any other information which would otherwise be confidential under
any other provisions of law be disclosed pursuant to the provisions
of this subsection.
(3) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner may disclose any relevant return
information to the prosecuting attorney for the county in which
venue lies for a criminal tax offense when there is reasonable
cause, based upon and substantiated by the return information, to
believe that a criminal tax law has been or is being violated.
(4) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner may enter into written exchange of
information agreements with the commissioners of Labor, Employment
Security, Alcohol Beverage Control, and Workers' Compensation to
disclose and receive timely return information: Provided, That the
Tax Commissioner may promulgate rules pursuant to chapter
twenty-nine-a of this code regarding further agencies with which
written exchange of information agreements may be sought:
Provided, however, That the Tax Commissioner may not promulgate
emergency rules regarding further agencies with which written
exchange of information agreements may be sought. The agreements
shall be published in the State Register and shall only be for the
purpose of facilitating premium collection, tax collection and
facilitating licensure requirements directly enforced, administered
or collected by the respective agencies. The provisions of this
subsection shall not be construed to preclude or limit disclosure
of tax information authorized by other provisions of this code.
Any confidential return information so disclosed shall remain confidential in the hands of the other division to the extent
provided by section five-d of this article and by other applicable
federal or state laws.
(5) Notwithstanding any provision of this code to the
contrary, the Tax Commissioner may enter into a written agreement
with the State Treasurer to disclose to the State Treasurer the
following business registration information:
(A) The names, addresses and federal employer identification
numbers of businesses which have registered to do business in West
Virginia; and
(B) The type of business activity and organization of those
businesses. Disclosure of this information shall begin as soon as
practicable after the effective date of this subsection and may be
used only for the purpose of recovery and disposition of unclaimed
property in accordance with the provisions of article eight,
chapter thirty-six of this code. The provisions of this subsection
shall not be construed to preclude or limit disclosure of tax
information authorized by other provisions of this code. Any
confidential return information disclosed hereunder or thereunder
shall otherwise remain confidential to the extent provided by
section five-d of this article and by other applicable federal or
state laws.
(c) Tax expenditure reports. -- Beginning on the fifteenth day
of January, one thousand nine hundred ninety-two, and every fifteenth day of January thereafter, the Governor shall submit to
the President of the Senate and the Speaker of the House of
Delegates a tax expenditure report. This report shall expressly
identify all tax expenditures. Within three-year cycles, the
reports shall be considered together to analyze all tax
expenditures by describing the annual revenue loss and benefits of
the tax expenditure based upon information available to the Tax
Commissioner. For purposes of this section, the term "tax
expenditure" shall mean a provision in the tax laws administered
under this article, including, but not limited to, exclusions,
deductions, tax preferences, credits and deferrals designed to
encourage certain kinds of activities or to aid taxpayers in
special circumstances: Provided, That the Tax Commissioner shall
promulgate rules setting forth the procedure by which he or she
will compile the reports and setting forth a priority for the order
in which the reports will be compiled according to type of tax
expenditure.
(d) Federal and state return information confidential. --
Notwithstanding any other provisions of this section or of this
code, no return information made available to the Tax Commissioner
by the Internal Revenue Service or department or agency of any
other state may be disclosed to another person in any manner
inconsistent with the provisions of Section 6103 of the Internal
Revenue Code of 1986, as amended, or of the other states' confidentiality laws.
CHAPTER 17. ROAD AND HIGHWAYS.
ARTICLE 22. OUTDOOR ADVERTISING.
§17-22-7. Exceptions to prohibited signs; standards for excepted
signs.
The provisions of section three of this article shall not
apply to the following: (a) Directional and other official signs
and notices required or authorized by law, including, but not
limited to, signs and notices pertaining to natural wonders, farm
wineries, mini-distilleries, scenic and historical attractions,
which such signs and notices shall conform to standards respecting
lighting, size, number, spacing and such other appropriate
requirements as may be designated and specified by the Secretary of
Transportation of the United States: Provided, That the
Commissioner of the Department of Highways shall not establish any
standards respecting lighting, size, number, spacing and other
appropriate requirements which are stricter than such standards
designated and specified by the Secretary of Transportation of the
United States; (b) signs, displays and devices advertising the sale
or lease of property upon which they are located; and (c) signs,
displays and devices advertising activities conducted on the
property on which they are located, including markers of
underground utility facilities.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
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 fifty thousand gallons or less of
wine and nonfortified dessert wine is 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 twenty-five percent of
such raw products being produced by the owner of such farm winery
on the premises of that establishment and no more than twenty-five
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 twenty-two
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) For purposes of this definition and when used in this
chapter to refer to the product of a farm winery or the product of
the holder of a farm winery license, "wine" includes dessert wines
manufactured exclusively by natural fermentation and port, sherry
and Madeira wines having an alcoholic content of not more than
twenty-two percent alcohol by volume and which have been matured in
wooden barrels or casks.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSES.
§60-3A-18. Days and hours retail licensees may sell liquor.
Retail licensees may not sell liquor on Sundays, Christmas or
election day, or between the hours of ten o'clock p.m. twelve
midnight and eight o'clock a. m., except that wine and fortified
wines may be sold on such days and at such times as authorized in
section thirty-four, article eight of this chapter.
ARTICLE 4. LICENSES.
§60-4-2. Licenses for manufacture.
The commission may grant licenses for the manufacture of
alcoholic liquors. Separate licenses shall be issued to the
following classes of manufacturing establishments:
(1) Distilleries, in which only alcoholic liquors other than
wine or beer is manufactured;
(2) Wineries, in which only wines are manufactured;
(3) Breweries, in which beer is manufactured;
(4) Bottling plants, in which beer only is bottled;
(5) Industrial plants, in which alcohol is distilled,
manufactured or otherwise produced for scientific, chemical,
mechanical or industrial purposes;
(6) Farm wineries in which only wines are manufactured; and
from which the wine so manufactured may be served or sold or both
served and sold in accordance with the provisions of this chapter;
and
(7) Mini-distilleries in which only alcoholic liquors other
than wine, beer or nonintoxicating beer are manufactured.
§60-4-3. To whom licensed manufacturer may sell.
A person who is licensed to manufacture alcoholic liquors in
this state may sell liquors in this state only to the West Virginia
Alcohol Beverage Control Commissioner and to wholesalers and
retailers licensed as provided in this chapter: Provided, That a
holder of a winery or a farm winery license may sell wines, and a
holder of a distillery or a mini-distillery license may sell
alcoholic liquors manufactured by it in this state in accordance
with the provisions of section two, article six of this chapter.
Hours of retail sale by a winery or a farm winery or distillery or
a mini-distillery is subject to regulation by the commissioner.
The commissioner may not promulgate any rule which prohibits the holder of a farm winery license from the advertising of a
particular brand or brands of wine produced by it, and the price of
the wine: Provided, however, That price may not be advertised in
medium of electronic communication subject to the jurisdiction of
the Federal Communications Commission. A manufacturer winery,
distillery, farm winery or mini-distillery may sell and ship
alcoholic liquors outside of the state subject to provisions of
this chapter.
§60-4-3a. Distillery and mini-distillery license to manufacture
and sell.
(a) Sales of liquor. -- An operator of a distillery or a
mini-distillery may offer liquor for retail sale to customers from
the distillery or the mini-distillery for consumption off premises
only. Except for free complimentary samples offered pursuant to
section one, article six of this chapter, customers are prohibited
from consuming any liquor on the premises of the distillery or the
mini-distillery.
(b) Retail sales. -- Every licensed distillery or
mini-distillery shall comply with the provisions of sections nine,
eleven, thirteen, sixteen, seventeen, eighteen, nineteen,
twenty-two, twenty-three, twenty-four, twenty-five and twenty-six
of article three-a of this chapter and the provisions of article
three and four of this chapter applicable to liquor retailers and
distillers.
(c) Payment of taxes and fees. -- The distillery or
mini-distillery shall pay all taxes and fees required of licensed
retailers and meet applicable licensing provisions as required by
this chapter and by rule of the commissioner.
(d) Payments to market zone retailers. -- Each distillery or
mini-distillery shall submit to the commissioner ten percent of the
gross sales price or each retail liquor sale for the value of all
sales at the distillery or the mini-distillery each month. This
collection shall be distributed by the commissioner, at least
quarterly, to each market zone retailer located in the distillery
or mini-distillery's market zone, proportionate to each market zone
retailer's annual gross prior years pre-tax value sales.
(e) Limitations on licensees. -- No distillery or
mini-distillery may sell more than three thousand gallons of
product at the distillery or mini-distillery location the initial
two years of licensure. The distillery or mini-distillery may
increase sales at the distillery or mini-distillery location by two
thousand gallons following the initial twenty-four month period of
licensure, and may increase sales at the distillery or
mini-distillery location each subsequent twenty-four month period
by two thousand gallons, not to exceed ten thousand gallons a year
of total sales at the distillery or mini-distillery location. No
licensed mini-distillery may produce more than twenty thousand
gallons per calendar year at the mini-distillery location. No more than one distillery or mini-distillery license may be issued to a
single person or entity, and no person may hold both a distillery
and a mini-distillery license.
§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 for consumption
off the premises only. Except for free complimentary samples
offered pursuant to section one, article six of this chapter,
customers are prohibited from consuming any wine on the premises of
the winery or farm winery, unless such winery or farm winery has
obtained a multi capacity winery or farm winery license.
(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. -- 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. 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.
(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 of subdivision (12), subsection (b) section three,
article eight of this chapter. A winery or farm winery, if holding
the appropriate licenses or a multi-capacity 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.
§60-4-15. Amount of license fees.
A person to whom a license is issued under the provisions of
this chapter shall pay annually to the commissioner a license fee
as follows, for:
(1) Distilleries, one thousand five hundred dollars;
(2) Wineries, one thousand five hundred dollars;
(3) Breweries, two hundred fifty one thousand five hundred
dollars;
(4) Bottling plants, one hundred dollars;
(5) Wholesale druggists, fifty dollars;
(6) Institutions, ten dollars;
(7) Industrial use, fifty dollars;
(8) Industrial plants producing alcohol, two hundred fifty
dollars;
(9) Retail druggists, ten dollars;
(10) Farm wineries, fifty dollars;
(11) Mini-distilleries, fifty dollars.
§60-4-22. Wholesale representatives' licenses.
No A person, firm or corporation shall may not be or act or
serve as an agent, broker or salesman selling or offering to sell
or soliciting or negotiating the sale of alcoholic liquor to the
commission or to any distributor licensed pursuant to article eight
of this chapter without first obtaining a license so to do in
accordance with the provisions of this section. Only salaried
employees of distilleries, manufacturers, producers or processors
of alcoholic liquor may be licensed hereunder, and no person may be
licensed hereunder who sells or offers to sell alcoholic liquor to
the commission or any distributor on a fee or commission basis.
The commission shall be the licensing authority and may grant to
persons of good moral character the license herein provided, and may refuse to grant such license to any person heretofore convicted
of a felony within ten years prior to his or her application for
such license; refuse to grant, suspend or revoke licenses.
Licenses shall be on an annual basis for the period from the first
day of July until the thirtieth day of June next following. New
and renewal licenses shall be granted only upon verified
application to the commission presented on forms provided by the
commission. Any person representing more than one producer,
manufacturer or distributor of alcoholic liquors shall file a
separate application and shall obtain a separate license for each
such representation. The annual license fee shall be one hundred
dollars. The fee for any license granted for the remainder of any
license year between the first day of January and the thirtieth day
of June of the same calendar year shall be fifty dollars.
No person who is the father, mother, son, daughter, brother,
sister, uncle, aunt, nephew or niece of a member of the commission
or of any elected or appointed state official, county official or
municipal official, or who is the spouse of any such person so
related to a member of the commission or to any elected or
appointive state official, county official or municipal official,
may be granted a license. hereunder. No member of the Legislature
or the spouse of any such member may be granted a license.
hereunder. Nor shall may any member or officer of any political
party executive committee of this state or the spouse of any such member or officer be granted a license. hereunder.
In addition to all other information which the commission may
require to be supplied on the license application forms, each
applicant shall be required to state his or her name and his or her
residence address and the name and business address of the
producer, manufacturer or distributor he represents; the name and
address of each additional producer, manufacturer or distributor of
alcoholic liquors he or she represents; the monetary total of all
alcoholic liquor sales, if any, made by him or her to the
commission or to any distributor licensed pursuant to article eight
of this chapter during the fiscal year preceding the license year
for which he or she is seeking a license; the monetary total of the
gross income received by him or her on such sales, if any, during
such fiscal year; whether he or she has, during such fiscal year,
made or given, voluntarily or on request, any gift, contribution of
money or property to any member or employee of the commission or of
any distributor licensed pursuant to article eight of this chapter
or to or for the benefit of any political party committee or
campaign fund; and his or her relationship, if any, by blood or
marriage, to any member of the commission or to any elected or
appointive state official, county official or municipal official.
All such applications shall be verified by oath of the applicant
and shall be prepared and filed in duplicate. All such
applications and a current list of all licensees hereunder shall be matters of public record and shall be available to public
inspection at the commission's offices at the state capitol. Every
licensee who ceases to be an agent, broker or salesman, as herein
contemplated, shall so advise the commission in writing and such
person's name shall be immediately removed from the license list
and his or her license shall be canceled and terminated.
Except as to owners, principal officers or employees of farm
wineries, All persons licensed hereunder under this section shall
be full-time salaried employees authorized representatives of the
wineries, farm wineries, distilleries, mini-distilleries,
manufacturers, producers or processors of alcoholic liquor they
represent. and shall devote their full time to the duties of such
employment and shall have and engage in no other remunerative
occupation or calling at the same time. No such A licensed person
shall may not share, divide or split his or her salary with any
person other than his wife or some legal dependent, nor shall may
he or she make any contribution to any political party campaign
fund in this state.
All licensees hereunder shall be subject to all other
provisions of this chapter and to the lawful rules and regulations
promulgated by the commission. Licenses may be refused, suspended
or revoked by the commission for cause, including any of the
applicable grounds of revocation specified in section nineteen of
this article. Provisions of this article relating to notice, hearing and appeals shall, to the extent applicable, govern
procedures on suspension and revocation of licenses hereunder.
Any person, firm or corporation violating any provision of
this section, including knowingly making of any false statement in
a verified application for a license shall be guilty of a
misdemeanor offense and shall, upon conviction thereof, be fined
not exceeding one thousand dollars or imprisoned in jail not
exceeding twelve months, or be subject to both such fine and
imprisonment in the discretion of the court.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-1. When lawful to possess, use or serve alcoholic liquors.
The provisions of this chapter may not prevent:
(1) A person from keeping and possessing alcoholic liquors in
his or her residence for the personal use of himself or herself,
his or her family, his or her employee or his or her guests if the
alcoholic liquors have been lawfully acquired by him or her;
(2) A person, his or her family, or employee from giving or
serving such alcoholic liquors to guests in the residence, when the
gift or service is not for the purpose of evading the provisions of
this chapter;
(3) The holder of a winery or a farm winery license from
serving complimentary samples of its wine in moderate quantities
for tasting at on the winery or the farm winery premises; and
(4) The holder of a distillery or a mini-distillery license from serving complimentary samples of its alcoholic liquor in
moderate quantities for tasting at on the distillery or the
mini-distillery premises.
§60-6-2. When lawful to manufacture and sell wine and cider.
The provisions of this chapter may not prevent:
(1) A person from manufacturing wine at his or her residence
for consumption at his or her residence as permitted by section one
of this article;
(2) A person from manufacturing and selling unfermented cider;
(3) A person from manufacturing and selling cider made from
apples produced by him or her within this state to persons holding
distillery licenses, if the manufacture and sale is under the
supervision and regulation of the commissioner;
(4) A person from manufacturing and selling wine made from
fruit produced by him or her within this state to persons holding
winery licenses, if the manufacture and sale is under the
supervision and regulation of the commissioner;
(5) The holder of a winery or a farm winery license from
selling wine produced by it directly for off-premises consumption
sold at retail to consumers at the winery or the farm winery, as
provided in section four, article three-b of this chapter, and at
one off-farmsite winery location or to for any other person who is
licensed under this chapter to sell wine as a wine supplier or
distributor; either at wholesale or at retail: Provided, That the winery may ship wines from the farm winery without the bonding
requirements of a transporter: Provided, however, That
notwithstanding any other provisions of law to the contrary, an
individual or licensee in a state which affords the wineries of
this state equal reciprocal shipping privileges may ship for
personal use and not for resale not more than two cases of wine per
month to any adult resident in this state. For purposes of this
subdivision, "wine" includes dessert wines manufactured exclusively
by natural fermentation and port, sherry and Madeira wines having
an alcoholic content of not more than twenty-two percent alcohol by
volume and which have been matured in wooden barrels or casks; and
(6) The holder of a distillery or a mini-distillery license
from selling alcoholic liquor for off-premises consumption sold at
retail at the distillery or the mini-distillery, as provided in
section four, article three-a of this chapter.
ARTICLE 8. SALE OF WINES.
PART I. CONSTRUCTION AND APPLICATION OF ARTICLE.
§60-8-1. Construction and application of article.
(a) Every supplier must use a distributor to distribute wine
for retail sale in this state, except for such sales that occur by
wineries, farm wineries or suppliers holding a direct shipper's
license or farm wineries holding a multi-capacity farm winery
license. The provisions of Part II of this article shall have
general application to the distribution and retail sale of wine in this state. The provisions of Part III of this article shall
relate solely to the distribution and the regulation of suppliers
and distributors of such wines as may be permitted to be sold at
retail pursuant to the provisions of this article. The provisions
of Part IV of this article shall relate solely to the retail sale
of wine in grocery stores as the term "grocery store" is defined in
this article and the retail sale of wine in wine specialty shops as
defined in this article. In the event of any inconsistency of any
provisions of Part II and the provisions of either Part III or Part
IV of this article, the provisions of either Part III or Part IV
shall prevail to the extent of such inconsistency.
(b) In the event of any inconsistency between any of the
provisions of this article and provisions of any other article of
this chapter or of this code, the provisions of this article shall
prevail to the extent of any such inconsistency.
(c) To the extent the provisions of this chapter exclusive of
this article may be given application without creating an
inconsistency with the provisions of this article, the provisions
of this chapter, exclusive of this article, shall apply to the same
extent as if this article did not exist.
PART II. SALE OF WINE GENERALLY.
§60-8-2. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
"Commissioner" or "commission" means the West Virginia Alcohol
Beverage Control Commissioner.
"Distributor" means any person whose principal place of
business is within the State of West Virginia and who is engaged in
makes purchases from a supplier to selling sell or distributing
distribute wine to retailers, grocery stores, or private wine bed
and breakfasts, private wine restaurants, private wine spas,
private clubs or wine specialty shops and that selling sells or
distributing distributes nonfortified dessert wine, port, sherry
and Madeira wines to wine specialty shops, private wine
restaurants, private clubs or retailers under authority of this
article and actually maintains a warehouse in this state for the
distribution of wine.
"Fortified wine" shall mean any wine to which brandy or other
alcohol has been added and shall include dessert wines which are
not fortified having an alcohol content by volume of at least
fourteen and one-tenths percent and not exceeding sixteen percent.
Provided, That a dessert wine manufactured exclusively by natural
fermentation and having an alcoholic content of not more than
twenty-two percent alcohol by volume and which has been matured in
wooden barrels or casks and manufactured, served or sold by a farm
winery is not a fortified wine.
"Grocery store" means any retail establishment, commonly known
as a grocery store, supermarket, delicatessen, caterer or party supply store, where food, food products and supplies for the table
are sold for consumption off the premises with average monthly
sales (exclusive of sales of wine) of not less than five hundred
dollars and an average monthly inventory (exclusive of inventory of
wine) of not less than three thousand dollars. The term "grocery
store" shall also include and mean a separate and segregated
portion of any other retail store which is dedicated solely to the
sale of food, food products and supplies for the table for
consumption off the premises with average monthly sales with
respect to such separate or segregated portion (exclusive of sales
of wine) of not less than three thousand dollars and an average
monthly inventory (exclusive of inventory of wine) of not less than
three thousand dollars.
"Licensee" means the holder of a license granted under the
provisions of this article.
"Private wine bed and breakfast" means any business with the
sole purpose of providing, in a residential or country setting, a
hotel, motel, inn or other such establishment properly zoned as to
its municipality or local ordinances, lodging and meals to its
customers in the course of their stay at the establishment, which
business also: (1) Is a partnership, limited partnership,
corporation, unincorporated association or other business entity
which as part of its general business purpose provides meals on its
premises to its members and their guests; (2) is licensed under the provisions of this article as to all of its premises or as to a
separate segregated portion of its premises to serve wine to its
members and their guests when such sale accompanies the serving of
food or meals; and (3) admits only duly elected and approved dues
paying members and their guests while in the company of a member
and does not admit the general public.
"Private wine restaurant" means a restaurant which: (1) Is a
partnership, limited partnership, corporation, unincorporated
association or other business entity which has as its principal
purpose the business of serving meals on its premises to its
members and their guests; (2) is licensed under the provisions of
this article as to all of its premises or as to a separate
segregated portion of its premises to serve wine to its members and
their guests when such sale accompanies the serving of food or
meals; and (3) admits only duly elected and approved dues paying
members and their guests while in the company of a member and does
not admit the general public. Such private clubs that meet the
private wine restaurant requirements numbered (1), (2) and (3) in
this definition shall be considered private wine restaurants.
"Private wine spa" means any business with the sole purpose of
providing commercial facilities devoted especially to health,
fitness, weight loss, beauty, therapeutic services and relaxation,
and may be also a licensed massage parlor or a salon with licensed
beauticians or stylists, which business also: (1) Is a partnership, limited partnership, corporation, unincorporated
association or other business entity which as part of its general
business purpose provides meals on its premises to its members and
their guests; (2) is licensed under the provisions of this article
as to all of its premises or as to a separate segregated portion of
its premises to serve up to two glasses of wine to its members and
their guests when such sale accompanies the serving of food or
meals; and (3) admits only duly elected and approved dues paying
members and their guests while in the company of a member, and does
not admit the general public.
"Retailer" means any person licensed to sell wine at retail to
the public at his or her established place of business for
off-premises consumption and who is licensed to do so under
authority of this article.
"Supplier" means any manufacturer, producer, processor,
winery, farm winery, national distributor or other supplier of wine
who sells or offers to sell or solicits or negotiates the sale of
wine to any licensed West Virginia distributor.
"Tax" includes within its meaning interest, additions to tax
and penalties.
"Taxpayer" means any person liable for any tax, interest,
additions to tax or penalty under the provisions of this article
and any person claiming a refund of tax.
"Varietal wine" means any wine labeled according to the grape
variety from which such wine is made.
"Vintage wine" or "vintage-dated wine" means wines from which
the grapes used to produce such wine are harvested during a
particular year or wines produced from the grapes of a particular
harvest in a particular region of production.
"Wine" means any alcoholic beverage obtained by the natural
fermentation of the natural content of grapes, other fruits or
honey or other agricultural products containing sugar and to which
no alcohol has been added and shall include table wine, and shall
exclude fortified wine and shall also exclude any product defined
as or embraced within the definition of nonintoxicating beer under
the provisions of article sixteen, chapter eleven of this code.
Provided, That "wine" shall include dessert wines manufactured
exclusively by natural fermentation, and port, sherry and Madeira
wines having an alcoholic content of not more than twenty-two
percent alcohol by volume and which have been matured in wooden
barrels or casks if produced by a farm winery as defined in section
five-a, article one of this chapter.
"Wine specialty shop" means a retailer who shall deal
principally in the sale of table wine, certain nonfortified dessert
wines, fortified wines, wine accessories and food or foodstuffs
normally associated with wine and: (1) Who shall maintain a
representative number of such wines for sale in his or her inventory which are designated by label as varietal wine, vintage,
generic and/or according to region of production and the inventory
shall contain not less than fifteen percent vintage or
vintage-dated wine by actual bottle count; and (2) who, any other
provisions of this code to the contrary notwithstanding, may
maintain an inventory of port, sherry and Madeira wines having an
alcoholic content of not more than twenty-two percent alcohol by
volume and which have been matured in wooden barrels or casks.
§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 winery, farm winery, supplier, distributor,
retailer, private wine bed and breakfast, or 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 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. 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 or 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;
(1) (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 such location the annual license fee of twenty-five hundred
dollars as herein provided;
(2) (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 such 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;
(3) (5) One hundred fifty dollars per year for a wine tasting
license;
(4) Fifty dollars for each sales representative of or employed
by a licensed distributor
(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 such location the annual
license fee of one hundred fifty dollars as herein provided;
(5) (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 such location the annual license fee
of two hundred fifty dollars 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 such location the annual license fee
of one 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;
(7) (9) One hundred fifty One hundred dollars per year for a
wine sampling license issued for a retailer wine specialty shop
under subsection (n) of this section; and
(8) (10) No fee shall be charged for a special one-day license
under subsection (o) of this section or for a heritage fair and
festival license under subsection (p) 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 two
hundred fifty dollars 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 multi-capacity
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 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, 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 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 wine specialty shop under this article may also
hold a wine tasting license authorizing such retailer to serve
complimentary samples of wine in moderate quantities for tasting.
Such retailer 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 retailer's
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 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 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 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 twenty-five fifty dollars
if the event is held on the premises of the winery or farm winery.
The application for such 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 festival or fair. A winery or 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 festival or fair. 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.
Such 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 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 license shall be subject to all other
provisions of this article and the rules and orders of the
commissioner relating to such special license: Provided, That the
commissioner may by rule, regulation or order provide for certain waivers or exceptions with respect to such 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 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 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 such 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
fifteen dollars: 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 produced by
a West Virginia farm winery 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 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), (i), (n) and (o) 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 other legislative rules deemed necessary to carry the
provisions of such 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 and to sell the wine by the bottle for off-premises
consumption as provided in subsection (i) of this section. Each
restaurant so licensed shall be charged a an additional one
hundred-dollar per year fee. less than that charged for a wine
license to a retail outlet, such 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 all stores licensed for retail
sales.
(m) Farm Wineries and farm wineries as defined in section one-
a of this article may advertise off premises as provided in section
seven, article twenty-two, chapter seventeen of this code. and in
any other media, including, but not limited to, newspaper, radio,
television, magazines and direct mail solicitation.
(n) A retailer wine specialty shop under this article may also
hold a wine sampling license authorizing the retailer wine
specialty shop to conduct special wine sampling events at a
licensed retail wine specialty shop location during regular hours
of business. The retailer 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 duly
employed by an authorized representative of the licensed retailer
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 duly
licensed by 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 retailer 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 West Virginia farm winery or a licensed West
Virginia distributor.
(o) 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 West Virginia 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.
(p) The commissioner may issue special licenses to heritage
fairs and festivals allowing the sale, serving and sampling of wine
from a licensed West Virginia farm winery retailer or distributor.
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 West Virginia farm
winery retailer or distributor. 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.
§60-8-4. Liter tax.
There is hereby levied and imposed on all wine sold after the
thirtieth day of April, one thousand nine hundred eighty-three
first day of July, two thousand seven, by suppliers to
distributors, and including all wine sold and sent to West Virginia
adult residents from direct shippers, except wine sold to the commissioner, a tax of twenty-six and four hundred six-thousandths
cents per liter.
Before the sixteenth day of each month thereafter, every
supplier, distributor and direct shipper shall make a written
report under oath to the Tax Commissioner and the commissioner
showing the identity of the purchaser, the quantity, label and
alcoholic content of wine sold by the supplier to West Virginia
distributors or the direct shipper to West Virginia adult residents
during the preceding month and at the same time shall pay the tax
imposed by this article on the wine sold to the distributor or the
West Virginia adult residents during the preceding month to the Tax
Commissioner.
The reports shall contain other information and be in the form
the Tax Commissioner may require. For purposes of this article,
the reports required by this section shall be considered tax
returns covered by the provisions of article ten, chapter eleven of
this code. Failure to timely file the tax returns within five
calendar days of the sixteenth day of each month will also subject
a supplier, distributor and direct shipper to penalties under
section eighteen of this article.
No wine imported, sold or distributed in this state or sold
and shipped to this state by a direct shipper shall be subject to
more than one liter tax.
§60-8-5. Refund or credit of taxes.
The Tax Commissioner shall refund, or credit on a subsequent
return, any tax which has been erroneously or illegally collected.
In the event that a licensee, while the owner of wine on which the
tax imposed by this article has been paid, loses such wine through
fire or casualty, other than breakage occurring on the premises of
the licensee because such wine has been declared by the alcohol
beverage control commissioner to be unfit for sale and the amount
of tax paid exceeds fifty dollars, the Tax Commissioner shall
refund the tax paid. The alcohol beverage control commissioner
shall promulgate regulations establishing the procedure and nature
of proof required in case of any claim for refund or credit.
§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, 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 person by the commissioner of
the fact that such person has violated the provisions of this
article. During such one-year period, it shall be unlawful for any
distributor within this state to buy or receive wine from such
person or to have any dealings with such 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. any person or winery that is
currently licensed and in good standing in its domicile state as a
winery, farm winery, supplier, distributor or retailer of wine and
who obtains a direct shipper's license from the commissioner, as
provided in this chapter, may ship up to a maximum of two cases of
wine per month directly to adult West Virginia residents who are
twenty-one years of age or over, for such adult resident's personal use and consumption and not for resale. Delivery of a shipment
pursuant to this section shall not be deemed to constitute a sale
in this state. Licensed direct shippers must maintain accurate
records of all shipments sent to West Virginia residents. All
shipments of wine into West Virginia by licensed direct shippers
shall be made by a licensed and bonded shipping carrier. Direct
shippers and their carriers shall not ship wine to areas of West
Virginia where wine may not be lawfully sold by county, local or
municipal law. Any holder of a direct shipper's license must
collect all taxes, sales taxes, municipal taxes and the liter tax
due to West Virginia, remit all sales, municipal taxes and the
liter tax to the tax commissioner at the close of each month and
file a monthly return reflecting the taxes paid for all sales and
shipments to residents in West Virginia. The commissioner shall
prescribe the forms to be used to file the monthly returns. The
shipping container of any wine sent into or out of this state under
this subsection shall be clearly and conspicuously labeled to
indicate that the package cannot be delivered to: (1) Any person
under the age of twenty-one; or (2) to an intoxicated person; or
(3) to a person physically incapacitated due to the consumption of
nonintoxicating beer, wine or alcoholic liquors or the use of
drugs; and (4) the carriers are required to obtain a written or
electronic signature upon delivery of an adult resident who the
carrier verifies is at least twenty-one years of age or older and if the carrier is not able to obtain a signature of a verified
adult resident at least twenty-one years of age or older, then the
carrier may not complete the delivery of the wine shipment. No
adult resident or duly licensed retailer or distributor may
advertise the availability of wines by shipment to residents of
this state. Failure of any holder of a direct shipper's license or
such licensee's carrier to abide by the provisions of this chapter
and the commissioner's rules may subject the direct shipper to the
penalties available to the commissioner under section eighteen of
this article.
§60-8-6a. Direct shipper's license.
(a) Before sending any shipment of wine to a resident of West
Virginia, the direct shipper must first:
(1) File a license application with the commissioner with the
appropriate background check information, using forms required by
the commissioner. Criminal background checks will not be required
of applicants licensed in their state of domicile who can provide
a certificate of good standing from their state of domicile;
(2) Pay to the commissioner either the one hundred fifty-
dollar license fee to ship and sell only wine, the two hundred
fifty-dollar license fee to ship and sell wine and nonfortified
dessert wine, port, sherry or Madeira wines, or the three hundred
dollar multi-capacity winery or farm winery license fee;
(3) Obtain a business registration number from the Tax
Commissioner;
(4) Register with the office of the Secretary of State, if a
corporation;
(5) Provide the commissioner a true copy of its current
alcoholic beverage license issued in the state of domicile, proving
that the direct shipper is licensed in its state of domicile as a
winery, farm winery, supplier, distributor or retailer of wine;
(6) Obtain from the commissioner a direct shipper's license;
(7) Submit to the commissioner a list of all brands of wine to
be shipped to West Virginia residents; and
(8) Meet all other licensing requirements of this chapter and
provide any other information that the commissioner may reasonably
require.
(b) All direct shipper licensees shall:
(1) Not ship more than two cases of wine per month to any
person. A case is defined as any combination of packages containing
not more than nine liters of wine;
(2) Not ship to any address in an area identified by the
commissioner as a "dry" or local option area where it is unlawful
to sell wine or alcoholic liquors;
(3) Not ship to any licensed suppliers, distributors,
retailers, private wine bed and breakfasts, private wine
restaurants, private wine spas or wine specialty shops;(4) Not ship wine from overseas or internationally unless it
is first shipped to a licensed supplier or distributor;
(5) Ensure that all containers of wine shipped directly to a
resident in this state are clearly and conspicuously labeled with
the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON 21 OR OLDER
REQUIRED FOR DELIVERY";
(6) File monthly returns to the commissioner and the Tax
Commissioner showing the total of wines, by type, sold and shipped
into West Virginia for the preceding month;
(7) Pay to the Tax Commissioner all sales taxes, municipal
taxes and the liter tax due on sales and shipments to residents of
West Virginia in the preceding month, the amount of such taxes to
be calculated as the sales were made in West Virginia at the
location where delivery is made;
(8) Permit the Tax Commissioner or commissioner or their
designees to perform an audit of the direct shipper's records upon
request;
(9) Be deemed to have consented to the jurisdiction of the
commissioner or any other state agency, the Kanawha County circuit
court located in Charleston, West Virginia, concerning enforcement
of this article and any other related laws, rules; and
(10) Provide proof or records to the commissioner, upon
request, that all direct shipments of wine were purchased and delivered to an adult resident of West Virginia over the age of
twenty-one years of age.
(c) The direct shipper may annually renew its license with the
commissioner by application, paying the direct shipper license fee
and providing the commissioner with a true copy of a current
alcoholic beverage license from the direct shipper's domicile
state.
(d) The commissioner may promulgate rules to effectuate the
purposes of this law.
(e) The commissioner may enforce the requirements of this
section by administrative proceedings to suspend or revoke a direct
shipper's license, and the commissioner may accept payment of a
penalty or an offer in compromise in lieu of suspension, at the
commissioner's discretion.
(f) Shipments of wine direct to consumers in West Virginia
from persons who do not possess a current direct shipper's license
or other permit or license from the commissioner are prohibited.
Any person who knowingly makes, participates in, transports,
imports or receives such an unlicensed and unauthorized direct
shipment is guilty of a felony and shall upon conviction thereof,
be fined in an amount not to exceed ten thousand dollars per
violation or shall be imprisoned in jail for a period not to exceed
seventy-two hours. Without limitation on any punishment or remedy,
criminal or civil, any person who knowingly makes, participates in, transports, imports or receives such a direct shipment constitutes
an act that is an unfair trade practice.
§60-8-7. Records; inspection.
Every person who sells or ships wine as a direct shipper to
West Virginia adult residents or who sells or ships wine to a
distributor, and every distributor shall maintain records of all
sales, shipments and deliveries, including invoices, records,
receipts, bills of lading and other pertinent papers required by
the commissioner. All such records shall be preserved for at least
two years. The Tax Commissioner or the commissioner, or both, may
inspect the books, accounts and records of any licensee and
examine, under oath, any officer, agent or employee of any licensee
or any person engaged in the business of selling, shipping or
delivering wine to a distributor. The Tax Commissioner or the
commissioner or both, may require the production, within this state
at the time and place the Tax Commissioner or the commissioner or
both may designate, of any books, accounts, papers or records kept
within or without the state, or verified copies in lieu thereof, in
order that an examination thereof may be made by the Tax
Commissioner, the commissioner or the tax commissioner's their duly
designated agents.
§60-8-16. Application for license.
Any person desiring a license under this article shall file a
written application for a license with the commissioner and in the
application shall state under oath:
(1) The name of the applicant, including his or her trade name
if any, his or her address and the length of his or her residence
within this state;
(2) The address of the place of business for which the license
is desired, or other description that definitely locates it; and
that the place of business conforms to all health and fire laws and
regulations applicable thereto;
(3) The name of the owner of the premises upon which the
business is to be conducted and, if the owner is not the applicant,
that such applicant is the bona fide lessee of the business;
(4) If the application is for a retailer's license, that the
applicant is the proprietor or owner of a bona fide grocery store,
private wine bed and breakfast, private wine restaurant, private
wine spa or wine specialty shop;
(5) That the applicant intends to carry on the business
authorized by the license for himself or herself or under his or
her immediate supervision or direction;
(6) That the applicant is a citizen of the United States;
(7) That the applicant is and an actual bona fide resident of
the State of West Virginia, except for those applicants applying
for a supplier's license or a direct shipper's license;
(8) That the applicant and is not less than eighteen years of
age;
(7) (9) That the applicant has not been convicted of a felony
or other crime involving moral turpitude within the three years
next preceding the filing of the application; and that he or she
has not, within the two years next preceding the filing of the
application, been convicted of violating the liquor laws of any
state or of the United States;
(8) (10) That the applicant has not during the five years next
preceding the date of said application had any license revoked
under this chapter or under the liquor laws of any other state;
(9) (11) If the applicant is a firm, association or
partnership, the application shall state the matters required in
subdivisions (6), (7), and (8), (9) and (10), with respect to each
of the members thereof, and each of said members must meet all the
requirements in said subdivisions;
(10) (12) If the applicant is a corporation, organized or
authorized to do business in this state, the application shall
state the matters required in subdivisions (6), (7), and (8), (9)
and (10), with respect to each of the officers and directors
thereof, and any stockholder owning twenty percent or more of the
stock of such corporation and the persons who conduct and manage
the licensed premises for the corporation. Each of said
individuals must meet all the requirements provided in those subdivisions except that the requirements as to citizenship and
residence shall not apply to the officers, directors and
stockholders of a corporation applying for a retailer's license;
and
(11) (13) Any other information that the commissioner may
reasonably require.
The foregoing statements required in an application shall
constitute mandatory prerequisites for the issuance of a license.
The application must be verified by the owner, or each member
of the firm, each partner, if a partnership, each member of the
governing board, if an association, or each officer and director,
if a corporation: Provided, That the application of a corporation
applying for a retailer's license need be verified only by its
president or vice president.
§60-8-18. Revocation, suspension and other sanctions which may be
imposed by the commissioner upon the licensee;
procedure upon refusal, revocation, suspension or
other sanction.
(a) The commissioner may on his or her own motion, or shall on
the sworn complaint of any person, conduct an investigation to
determine if any provisions of this article or any rule promulgated
or any order issued by the commissioner has been violated by any
licensee. After investigation, the commissioner may impose
penalties and sanctions as set forth below.
(1) If the commissioner finds that the licensee has violated
any provision of this article or any rule promulgated or order
issued by the commissioner, or if the commissioner finds the
existence of any ground on which a license could have been refused,
if the licensee were then applying for a license, the commissioner
may:
(A) Revoke the licensee's license;
(B) Suspend the licensee's license for a period determined by
the commissioner not to exceed twelve months; or
(C) Place the licensee on probation for a period not to exceed
twelve months; and,
(D) Impose a monetary penalty not to exceed one thousand
dollars for each violation where revocation is not imposed.
(2) If the commissioner finds that a licensee has willfully
violated any provision of this article or any rule promulgated or
any order issued by the commissioner, the commissioner shall revoke
the licensee's license.
(b) If a supplier or distributor fails or refuses to keep in
effect the bond required by section twenty-nine of this article,
the commissioner shall automatically suspend the supplier or
distributor's license until the bond required by section twenty is
furnished to the commissioner, at which time the commissioner shall
vacate the suspension.
(c) Whenever the commissioner refuses to issue a license, or
suspends or revokes a license, places a licensee on probation or
imposes a monetary penalty, he or she shall enter an order to that
effect and cause a copy of the order to be served in person or by
certified mail, return receipt requested, on the licensee or
applicant.
(d) Any applicant or licensee, as the case may be, adversely
affected by the order has a right to a hearing before the
commissioner, if a written demand for hearing is served upon the
commissioner within ten days following the receipt of the
commissioner's order by the applicant or licensee. Timely service
of a demand for a hearing upon the commissioner operates to suspend
the execution of the order with respect to which a hearing has been
demanded, except an order suspending a license under the provisions
of subsection (b) of this section. The person demanding a hearing
shall give security for the cost of the hearing in a form and
amount as the commissioner may reasonably require. If the person
demanding the hearing does not substantially prevail in such
hearing or upon judicial review thereof as provided in subsections
(g) and (h) of this section, then the costs of the hearing shall be
assessed against him or her by the commissioner and may be
collected by an action at law or other proper remedy.
(e) Upon receipt of a timely served written demand for a
hearing, the commissioner shall immediately set a date for the hearing and notify the person demanding the hearing of the date,
time and place of the hearing, which shall be held within thirty
days after receipt of the demand. At the hearing the commissioner
shall hear evidence and thereafter enter an order supporting by
findings of facts, affirming, modifying or vacating the order. Any
such order is final unless vacated or modified upon judicial review
thereof.
(f) The hearing and the administrative procedure prior to,
during and following the hearing shall be governed by and in
accordance with the provisions of article five, chapter
twenty-nine-a of this code.
(g) Any applicant or licensee adversely affected by an order
entered following a hearing has the right of judicial review of the
order in accordance with the provisions of section four, article
five, chapter twenty-nine-a of this code in the circuit court of
Kanawha County, West Virginia.
(h) The judgment of a the Kanawha County circuit court
reviewing the order of the commissioner is final unless reversed,
vacated or modified on appeal to the Supreme Court of Appeals in
accordance with the provisions of section one, article six, chapter
twenty-nine-a of this code.
(i) Legal counsel and services for the commissioner in all
proceedings in any circuit court and the Supreme Court of Appeals
shall be provided by the Attorney General or his or her assistants and in any proceedings in any circuit court by the prosecuting
attorney of that county as well, all without additional
compensation.
§60-8-19. To whom licensed manufacturer may sell.
A person who is licensed to manufacturer who is licensed as a
supplier or who utilizes a licensed supplier in this state of wine,
as defined in this article, may sell such wines in this state only
to the West Virginia Alcohol Beverage Control commissioner and to
distributors as defined in this article. Such manufacturers may
sell such wine outside of this state for use or resale outside this
state. The provisions of this section shall not apply to farm
wineries as defined by section five-a, article one of this chapter.
§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 of section six of this article 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 section five-a, article one of this chapter;
(b) Unless otherwise specifically provided by the provisions
of this article, for a licensee under this article to acquire,
transport, possess for sale or sell wine other than in the original
package;
(c) For a licensee, his or her servants, agents or employees
to sell, furnish or give wine to any person less than twenty-one
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 of section
twenty-five-a, article three-a of this chapter shall apply to sales
of wine;
(d) For a licensee to permit a person who is less than
eighteen years of age to sell, furnish 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. may be temporarily out of
stock. The commissioner shall promulgate rules necessary to carry
out the provision of this subsection;
(f) For a person to violate any reasonable rule or regulation
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 eighteen years
of age to serve in any licensee's lawful employment, including the
sale 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
eighteen years of age but at least sixteen 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 eighteen years
shall be clearly indicated on the licensee's license.
§60-8-23. Duties and powers of commissioner; rules.
(a) The commissioner is hereby authorized:
(1) To enforce the provisions of this article.
(2) To enter the premises of any licensee at reasonable times
for the purpose of inspecting the premises and determining the
compliance of the licensee with the provisions of this article and
any rules and regulations promulgated by the commissioner.
(3) In addition to rules and regulations relating to the tax
imposed by section four of this article or otherwise authorized by
this article, to promulgate reasonable rules and regulations as he
deems necessary for the execution and enforcement of the provisions
of this article, which may include, but shall not be limited to:
(A) The transport, use, handling, service and sale of wine;
(B) Establishing standards of identity, quality and purity to
protect the public against wine containing deleterious, harmful or
impure substances or elements and against spurious or imitation
wines and wines unfit for human consumption; and
(C) Restricting the content of wine advertising so as to
prohibit false or misleading claims, or depictions or descriptions
of wine being consumed irresponsibly or immoderately, or
advertising presentations designed to appeal to persons below the
legal drinking age: Provided, That the commissioner shall not
promulgate any rule or regulation which prohibits the advertising
of a particular brand or brands of wine and the price thereof:
Provided, however, That price shall not be advertised in a medium of electronic communication subject to the jurisdiction of the
federal communications commission.
(4) To issue subpoenas and subpoenas duces tecum for the
purpose of conducting hearings under the provisions of section
twelve of this article, which subpoenas and subpoenas duces tecum
shall be issued in the time, for the fees, and shall be enforced in
the manner specified in section one, article five, chapter
twenty-nine-a of this code with like effect as if said section was
set forth in extenso in this subdivision.
(b) The authority granted in subdivisions (a),(b) and (d) of
this section may also be exercised by the duly authorized or
designated agents of the commissioner.
(c) Except as may be in this article to the contrary, the
commissioner shall not have authority by rule or regulation or
otherwise to regulate markups, prices, discounts, allowances or
other terms of sale at which wine may be purchased or sold by wine
distributors or licensees authorized to sell wine at retail or to
change, nullify or vary the terms of any agreement between a wine
manufacturer or supplier and a wine distributor, but nothing herein
shall be deemed to authorize or permit any discriminatory practice
prohibited by subsection (a), section thirty-one of this article or
any other discriminatory practice.
(d) All rules and regulations promulgated by the commissioner
pursuant to this article shall be so promulgated in accordance with the provisions of chapter twenty-nine-a of this code. The rules
and regulations promulgated pursuant to the prior enactment of this
article and not disapproved by the Legislature shall remain in full
force and effect to the extent that such rules and regulations are
not abrogated and made null and void by the reenactment of this
sections of this article during the regular session of the
Legislature for the year one thousand nine hundred eighty-six.
Any rule or regulation which is inconsistent or contrary in any way
to any provision of this article now or hereafter enacted are null
and void.
§60-8-24. Disposition of revenue.
(a) The first two hundred thousand dollars of fees collected
under the provisions of this article during each fiscal year shall
be deposited into a special revolving fund designated the "Tax
Commissioner's wine tax administration fund," which fund is hereby
created in the State Treasury. The Tax Commissioner's Wine Tax
Administration Fund shall be used by the Tax Commissioner to
administer and support direct and indirect costs of the Tax
Division for administration, collection, including compliance
enforcement, auditing, and distribution of taxes on wine imposed by
this code and for which the Tax Commissioner has administration,
collection, compliance enforcement, auditing, or distribution
functions or responsibilities.
(b) After collection and deposit of the first two hundred thousand dollars, as specified in subsection (a) of this section,
all fees collected by the alcohol beverage control commissioner,
under the provisions of this article shall next be deposited in the
State Treasury and credited to a special fund to be known as the
Wine License Special Fund. All moneys in such the Wine License
Special Fund may be expended only by the alcohol beverage control
commissioner for the administration of the provisions of this
article or, to the extent of any excess, for the administration of
this chapter or as may be appropriate by law.
(c) The liter tax imposed and collected by the Tax
Commissioner under the provisions of this article shall be paid
into the State Treasury and deposited in the General Revenue Fund
of the state.
(d) All moneys collected by the alcohol beverage control
commissioner and the tax commissioner under the provisions of this
article shall be remitted to the State Treasury monthly within
fifteen days after the end of each month.
§60-8-25. Criminal penalties; public nuisances.
(a) Any person who violates any provision of this article or
who makes any false statement concerning any material fact in
submitting application for license or for a renewal of a license or
in any hearing concerning the suspension or revocation thereof, or
who commits any of the acts herein declared to be unlawful, is
guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than twenty-five one hundred dollars
nor more than five hundred one thousand dollars, or imprisoned in
the county jail not less than thirty days nor more than six months,
or both fined and imprisoned. Magistrate courts shall have
concurrent jurisdiction with the circuit court for the trial of all
misdemeanors arising under this article.
(b) The provisions of sections sixteen and seventeen, article
six of this chapter shall apply to persons violating the provisions
of this article to the same extent as if such provisions were set
forth in extenso herein.
§60-8-26. Forfeiture of bond.
On conviction of a violation of any provision of this article,
upon the revocation of a license in accordance with section
eighteen of this article or upon finding of failure of a taxpayer
to pay all taxes prescribed by section four of this article, which
conviction, revocation or finding has become final, the licensee,
former licensee or company registered and licensed as a supplier or
distributor, as the case may be, shall forfeit any bond required by
section twenty-nine of this article. The penal sum of any bond
forfeited shall forthwith be paid to the State Treasurer and
credited to the General Revenue Fund of this state. Such sum may
be collected by an action at law or other appropriate remedy.
PART III. WINE DISTRIBUTION.
§60-8-28. Wine brand licensing and registration and review of wine labels.
Every distributor and farm winery supplier offering wine for
sale under this article shall register with the tax commissioner
each wine brand label offered for sale in the state and shall pay
a fee of three one hundred dollars for the registration of such
wine brand label for three years, such fee shall be returned to the
supplier if the wine is not registered for sale. No wine brand may
be sold under this article unless all of its such wine brand's
label labels intended for sale in the state has have been
registered and reviewed by the commissioner. Every supplier
offering various wine labels of a registered and reviewed wine
brand for sale in the state shall submit all of the wine brand's
labels intended for sale in the state for registration prior to the
sale of such wine labels in the state for no additional fees.
After the expiration of three years, the supplier may renew the
registered wine brand by paying a one hundred-dollar renewal fee
for three more years and every three years thereafter. Prior to
registration of any wine labels, the commissioner shall review the
wine labels. This review shall include, but not be limited to, a
review of the alcohol content, corporate or product information,
marketing and advertising so that the wine label is not intended to
be marketed to persons less than twenty-one years of age. The
commissioner shall remove all nonrenewed wine labels and any
licensee who sells wine with nonrenewed wine labels shall be subject to the penalties under section eighteen of this article.
Failure to register, obtain certification and pay the annual fee
for a wine brand and failure to register the wine brand's labels
will subject the supplier to penalties under section eighteen of
this article.
§60-8-29. Bond required of distributors and suppliers.
Each applicant for a distributor's license or each company
registered as a supplier supplier's license shall furnish at the
time of application a bond with a corporate surety authorized to
transact business in this state, payable to the state, and
conditioned on the payment of all taxes and fees herein prescribed
and on the faithful performance of and compliance with the
provisions of this article.
The penal sum of the bond for distributors shall be ten
thousand dollars and the penal sum of the bond for suppliers shall
be twenty-five ten thousand dollars. Each distributor shall be
required to furnish separate bond for each location or separate
place of business from which wine is distributed, sold or
delivered. Revocation or forfeiture of the bond furnished for any
such location may, in the discretion of the tax commissioner, cause
the revocation or forfeiture of all such bonds furnished by the
distributor suffering such revocation or forfeiture.
§60-8-30. Exclusive franchise agreements prohibited.
It shall be illegal for any manufacturer, winery, farm winery
or supplier to enter into any exclusive franchise agreement with
any distributor whereby any such distributor is given the exclusive
right within this state or in any given territory within this state
to distribute the product or products of such manufacturer which
are to be sold or distributed pursuant to the provisions of this
article. Further, all agreements between a manufacturer, winery,
farm winery or supplier and a distributor must be in writing and on
file with the commissioner and all such agreements must provide for
termination of either party provided that notice of termination is
provided in writing and by certified mail to the commissioner and
all parties to the agreement ninety days prior to the termination
date. Once the notice has been received by either party, the
distributor shall: (1) Use the ninety-day period to deplete such
distributor's affected wine inventory; or (2) reach some agreement
with the manufacturer, winery, farm winery or supplier to return
unused salable wine inventory or receive payment for unused salable
wine inventory. No new distributor shall be appointed until the
conclusion of the ninety days or as the parties have otherwise
agreed to complete the termination. For the purposes of this
article "salable" shall mean inventory fit for human consumption or
as otherwise determined by the commissioner.
§60-8-31. Other unlawful acts.
It is unlawful:
(a) For a distributor to discriminate in price, sales
agreements, terms or services offered to retailers, licensees or to
any licensee under article seven of this chapter and further it is
unlawful for a supplier to discriminate against a distributor in
price, sales agreements, terms or services. "Discriminate", as
used in this section, means the granting of more favorable prices,
agreements, terms or services to one person than to another.
(b) For a distributor, his or her agents, servants or
employees to transport or deliver wine to any retail licensee or to
any licensee under article seven of this chapter on Sunday or any
general election day.
(c) For a distributor to sell wines authorized by this article
to licensees under article seven of this chapter at a price which
is greater than the price at which such wines are sold and
distributed to retailers under this article.
PART IV. WINE RETAILERS.
§60-8-32. Where wine may be sold at retail.
Except as to sales permitted to be made by wineries or farm
wineries that obtain a retailer's license, as defined by section
five-a, article one of this chapter, private wine bed and
breakfasts, private wine restaurants and private wine spas, wine
sold pursuant to this article may be sold at retail only by the
commissioner and in and by grocery stores retailers and wine
specialty shops as defined by section two of this article.
§60-8-34. When retail sales prohibited.
It shall be unlawful for a retailer, farm winery, wine
specialty shop retailer, or a private wine bed and breakfast,
private wine restaurant or private wine spa licensee, his or her
servants, agents or employees to sell or deliver wine between the
hours of two o'clock a. m. and one o'clock p. m. on Sundays, or
between the hours of two o'clock a. m. and seven o'clock a. m. on
weekdays and Saturdays."