H. B. 3141
(By Delegates Skaff, McCuskey, Sponaugle
and R. Phillips)
(By Request of the Alcohol Beverage Control Administration)
[Introduced
March 25, 2013
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §11-16-24 of the Code of West Virginia,
1931, as amended; to amend and reenact §60-3A-28 of said code;
to amend and reenact §60-7-13a of said code; and to amend and
reenact §60-8-18 of said code, all relating to providing
consistency for the location of the Alcohol Beverage Control
Administration's appeal hearings; and providing that appeals
from the commissioner's decision are to be brought in the
circuit court of Kanawha County.
Be it enacted by the Legislature of West Virginia:
That §11-16-24 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §60-3A-28 of said code be amended
and reenacted; that §60-7-13a of said code be amended and
reenacted; and that §60-8-18 of said code be amended and reenacted,
all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-24. Hearing on sanctioning of license; notice; review of
action of commissioner; clerk of court to furnish
commissioner copy of order or judgment of
conviction of licensee; assessment of costs.
The commissioner shall may not revoke nor or suspend any a
license issued pursuant to this article or impose any civil
penalties a civil penalty authorized thereby under this article
unless and until a hearing shall be is held after at least ten
days' notice to the licensee of the time and place of such the
hearing, which notice shall contain a statement or specification of
the charges, grounds or reasons for such the proposed contemplated
action, and which shall be is served upon the licensee as notices
under the West Virginia Rules of Civil Procedure or by certified
mail, return receipt requested, to the address for which license
was issued; at which time and place, so designated in the notice,
the licensee shall have has the right to appear and produce
evidence in his or her behalf, and to be represented by counsel.
The commissioner shall have authority to may summon witnesses
in the hearings before him or her, and fees of witnesses summoned
on behalf of the state in proceedings to sanction licenses shall be
treated as a part of the expenses of administration and
enforcement. Such The fees shall be the same as those in similar hearings in the circuit courts of this state. The commissioner
may, upon a finding of violation, assess a licensee a sum not to
exceed $150 per violation to reimburse the commissioner for
expenditures for witness fees, court reporter fees and travel costs
incurred in holding the hearing. Any Moneys so assessed shall be
transferred to the Nonintoxicating Beer Fund created by section
twenty-three of this article.
If, at the request of the licensee or on his or her motion,
the hearing shall be is continued and shall does not take place on
the day fixed by the commissioner in the notice above provided for
of hearing, then such the licensee's license may be suspended until
the hearing and decision of the commissioner, and in the event of
revocation or suspension of such the license, upon hearing before
the commissioner, the licensee shall not be is not permitted to
sell beer pending an appeal as provided by this article. Any
person continuing to sell beer after his or her license has been
suspended or revoked, as hereinbefore provided, is guilty of a
misdemeanor and, shall be punished as provided in section nineteen
of this article.
The action of the commissioner in revoking, or suspending,
sanctioning or refusing a license shall be is subject to review
only by the circuit court of Kanawha County, West Virginia,
notwithstanding the provisions of subsection (b), section four, article five, chapter twenty-nine-a of this code, and in all other
respects in the manner provided in chapter twenty-nine-a of this
code, when such the applicant or licensee may be is aggrieved by
such the revocation, or suspension, sanction or renewal. Petition
for such review must be filed with said the circuit court of
Kanawha County, within a period of thirty days from and after the
date of the final order of revocation, or suspension, sanction or
refusal issued by the commissioner. and any An applicant or
licensee obtaining an order for such review shall be is required to
pay the costs and fees incident to transcribing, certifying and
transmitting the records pertaining to such the matter to the
circuit court. An application to the Supreme Court of Appeals of
West Virginia for a writ of error from any final order of the
circuit court in any such the matter shall be made within thirty
days from and after the entry of such the final circuit court
order.
All such hearings, upon notice to show cause why license
should be revoked, or suspended, sanctioned or refused, before the
commissioner shall be held in the offices of the commissioner in
Charleston, Kanawha County, West Virginia, unless otherwise
provided by the commissioner in such the notice or agreed upon
between the licensee and the commissioner; and of hearing. When
such the hearing is held elsewhere than in the commissioner's office, the licensee may be required to make deposits of the
estimated costs of such the hearing.
Whenever any a licensee has been convicted of any an offense
constituting a violation of the laws of this state or of the United
States relating to nonintoxicating beer, or alcoholic liquor, and
such the conviction has become final, the clerk of the court in
which such the licensee has been convicted shall forward to the
commissioner a certified copy of the order or judgment of
conviction if such the clerk has knowledge that the person so
convicted is a licensee, together with the certification of such
the clerk that the conviction is final.
In the case of a Class B licensee with multiple licensed
locations, the commissioner may, in his or her discretion, revoke,
suspend or otherwise sanction, per the provisions of section
twenty-three of this article, only the license for the location or
locations involved in the unlawful conduct for which licensure is
sanctioned, as opposed to all separately licensed locations of such
the licensee.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-28. Notice of and hearing on revocation.
(a) Before a retail license issued under the authority of this
article may be is suspended for a period of more than twenty days, or revoked, the commissioner shall give at least ten days' notice
to the retail licensee. Notice shall be in writing, shall state
the reason for suspension or revocation, and shall designate a time
and place for a hearing where the retail licensee may show cause
why the retail license should not be suspended or revoked. Notice
shall be sent by certified mail to the address for which the retail
license was issued. The retail licensee may, at the time
designated for the hearing, produce evidence in his or her behalf
and be represented by counsel.
(b) Such The hearing and the administrative procedures prior
to, during and following the same shall be hearing are governed by
and shall be conducted in accordance with the provisions of article
five, chapter twenty-nine-a of this code in like manner as if the
provisions of article five were fully set forth in this section.
(c) Any person adversely affected by an a final order entered
following such the hearing shall have has the right of judicial
review thereof in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code with like effect
as if the provisions of said section four were fully set forth in
this section. by only the circuit court of Kanawha County,
notwithstanding the provisions of subsection (b), section four,
article five, chapter twenty-nine-a of this code, and in all other
respects in the manner provided in chapter twenty-nine-a of this code. Petition for the review must be filed with the circuit court
of Kanawha County, within thirty days from and after the date of
the final order issued by the commissioner. An applicant or
licensee obtaining the review is required to pay the costs and fees
incident to transcribing, certifying and transmitting the records
pertaining to the matter to circuit court.
(d) The judgment of a the circuit court reviewing such the
order of the commissioner shall be 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.
(e) Legal counsel and services for the commissioner in all
such the 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.
(f) Upon final revocation, the commissioner shall proceed to
reissue the retail license by following the procedures set forth
herein for the initial issuance of a retail license.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§60-7-13a. Hearing on sanctioning of license; notice; review of
action of commissioner; clerk of court to furnish commissioner copy of order or judgment of
conviction of licensee; assessment of costs.
The commissioner shall may not revoke or suspend any a license
issued pursuant to this article or impose any civil penalties
authorized thereby under this article unless and until a hearing
shall be is held after at least ten days' notice to the licensee of
the time and place of such the hearing, which notice shall contain
a statement or specification of the charges, grounds or reasons for
such the proposed contemplated action, and which shall be is served
upon the licensee as notices under the West Virginia Rules of Civil
Procedure or by certified mail, return receipt requested, to the
address for which license was issued. At which the time and place,
so designated in the notice, the licensee shall have has the right
to appear and produce evidence in his or her behalf, and to be
represented by counsel: Provided, That the commissioner may
forthwith suspend any such the license when the commissioner
believes the public safety will be adversely affected by the
licensee's continued operation.
The commissioner shall have authority to may summon witnesses
in the hearing before him or her, and fees of witnesses summoned on
behalf of the state in proceedings to sanction licenses shall be
treated as a part of the expenses of administration and
enforcement. Such The fees shall be the same as those in similar hearings in the circuit courts of this state. The commissioner
may, upon a finding of violation, assess a licensee a sum, not to
exceed $150 per violation, to reimburse the commissioner for
expenditures of witness fees, court reporter fees and travel costs
incurred in holding the hearing. Any Moneys so assessed shall be
transferred to the Alcohol Beverage Control Enforcement Fund
created by section thirteen of this article.
If, at the request of the licensee or on his or her motion,
the hearing shall be is continued and shall does not take place on
the day fixed by the commissioner in the notice above provided for
of hearing, then such the licensee's license may be suspended until
the hearing and decision of the commissioner, and in the event of
revocation or suspension of such the license, upon hearing before
the commissioner, the licensee shall not be is not permitted to
sell alcoholic liquor or nonintoxicating beer pending an appeal as
provided by this article. Any person continuing to sell alcoholic
liquor or nonintoxicating beer after his or her license has been
suspended or revoked, as hereinbefore provided in this section, is
guilty of a misdemeanor and, shall be punished as provided in
section twelve of this article.
The action of the commissioner in revoking, or suspending,
sanctioning or refusing a license shall be is subject to review
only by the circuit court of Kanawha County West Virginia, notwithstanding the provisions of subsection (b), section four,
article five, chapter twenty-nine-a of this code, and in all other
respects in the manner provided in chapter twenty-nine-a of this
code, when such the licensee may be is aggrieved by such the
revocation, or suspension, sanction or refusal. Petition for such
the review must be filed with said the circuit court of Kanawha
County within a period of thirty days from and after the date of
the final order of revocation, or suspension, sanction or refusal
issued by the commissioner. and any A licensee obtaining an order
for such the review shall be is required to pay the costs and fees
incident to transcribing, certifying and transmitting the records
pertaining to such the matter to the circuit court. An application
to the Supreme Court of Appeals of West Virginia for a writ of
error from any final order of the circuit court in any such the
matter shall be made within thirty days from and after the entry of
such the final circuit court order.
All such hearings, upon notice to show cause why license
should be revoked, or suspended, sanctioned or refused, before the
commissioner shall be held in the offices of the commissioner in
Charleston, Kanawha County, West Virginia, unless otherwise
provided by the commissioner in such the notice or agreed upon
between the licensee and the commissioner and of hearing. When such
the hearing is held elsewhere than in the commissioner's office, the licensee may be required to make deposits of the estimated
costs of such the hearing.
Whenever any licensee has been convicted of any an offense
constituting a violation of the laws of this state or of the United
States relating to alcoholic liquor, or nonintoxicating beer, and
such the conviction has become final, the clerk of the court in
which such the licensee has been convicted shall forward to the
commissioner a certified copy of the order or judgment of
conviction if such the clerk has knowledge that the person so
convicted is a licensee, together with the certification of such
the clerk that the conviction is final. The commissioner shall
report violations of any of the provisions of section twelve or
twelve-a of this article to the prosecuting attorney of the county
in which the licensed premises is located.
ARTICLE 8. SALE OF WINES.
§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 $1,000 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 of this article 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 An 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 the
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 An applicant or licensee adversely affected by an a
final 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. by only the circuit
court of Kanawha County, notwithstanding the provisions of
subsection (b), section four, article five, chapter twenty-nine-a
of this code, and in all other respects in the manner provided in
chapter twenty-nine-a of this code. Petition for the review must be filed with the circuit court of Kanawha County, within thirty days
from and after the date of the final order issued by the
commissioner. An applicant or licensee obtaining judicial review
is required to pay the costs and fees incident to transcribing,
certifying and transmitting the records pertaining to the matter to
circuit court.
(h) The judgment of 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.
NOTE: The purpose of this bill is to make consistent the
Alcohol Beverage Control Administration's hearing and appeal
requirements among the various statutes for beer, liquor and wine.
The bill provides the right to appeal final orders of the
commissioner to the Kanawha County circuit court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.