WEST virginia Legislature
2019 regular session
Introduced
House Bill 2504
By Delegate Atkinson, Westfall, Anderson, Hill, Criss, Martin, C., Kelly, J., Higginbotham, Martin, P., Nelson and Harshbarger
[Introduced January 17, 2019; Referred
to the Committee on Small Business, Entrepreneurship and Economic Development
then the Judiciary.]
A BILL to amend and reenact §11-16-6b of the Code of West Virginia, 1931, as amended; and to amend and reenact §11-16-11a of said code, all relating to permitting licensed brewpubs, Class A retail dealers, Class B retail dealers, private clubs, Class A retail licensees and Class B retail licensees to serve complimentary samples of nonintoxicating beer or nonintoxicating craft beer manufactured in the State of West Virginia; and removing restrictions on Class A retail licensees’ ability to serve complimentary nonintoxicating beer samples to customers.
Be it enacted by the Legislature of West Virginia:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-6b. Brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee and Class B retail licensee's authority to sell growlers and provide complimentary samples.
(a) Legislative findings. -- The Legislature hereby finds that it is in the public interest to regulate, control and support the brewing, manufacturing, distribution, sale, consumption, transportation and storage of nonintoxicating beer and nonintoxicating craft beer and its industry in this state in order to protect the public health, welfare and safety of the citizens of this state and promote hospitality and tourism. Therefore, this section authorizes a licensed brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee or Class B retail licensee to have certain abilities in order to promote the sale of nonintoxicating beer and nonintoxicating craft beer manufactured in this state for the benefit of the citizens of this state, the state's growing brewing industry and the state's hospitality and tourism industry, all of which are vital components for the state's economy.
(b) Sales of nonintoxicating beer. -- A licensed
brewpub, Class A retail dealer, Class B retail dealer, private club, Class A
retail licensee or Class B retail licensee who pays the fee in §11-16-6b(i)
of this code and meets the requirements of this section may offer
nonintoxicating beer or nonintoxicating craft beer for retail sale to patrons
from their its licensed premises in a growler for personal
consumption only off of the licensed premises and not for resale. Prior to the
sale, the licensee shall verify, using proper identification, that any patron
purchasing nonintoxicating beer or nonintoxicating craft beer is 21 years of
age or over and that the patron is not visibly intoxicated. A licensee
authorized under this section may not sell, give or furnish alcoholic liquors,
including wine, for consumption off of its licensed premises, unless it is a
private club licensed to sell sealed wine for consumption off of the licensed
premises and meets the requirements set out in §60-8-3(j) and §60-8-3(l) of
this code, for the sale of wine, not liquor.
(c) Complimentary samples. – Notwithstanding any provision of this code to the contrary, a licensed brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee or Class B retail licensee may offer complimentary samples of nonintoxicating beer or nonintoxicating craft beer manufactured in the State of West Virginia. The complimentary samples may be no greater than two ounces per sample per patron, and a sampling shall not exceed three complimentary two-ounce samples per patron per day. Prior to the sampling, the licensed brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee or Class B retail licensee shall verify, using proper identification, that any patron sampling nonintoxicating beer or nonintoxicating craft beer is 21 years of age or over and that the patron is not visibly intoxicated.
(c) (d) Retail sales. -- Every
licensee authorized under this section shall comply with all the provisions of
this article as applicable to nonintoxicating beer retailers when conducting
sales of nonintoxicating beer or nonintoxicating craft beer and shall be
is subject to all applicable requirements and penalties in this article.
(d) (e) Payment of taxes and fees.
-- A licensee authorized under this section shall pay all taxes and fees
required of licensed nonintoxicating beer retailers, in addition to any other
taxes and fees required, and meet applicable licensing provisions as required
by this chapter and by rule of the commissioner.
(e) (f) Advertising. -- A licensee
authorized under this section may advertise a particular brand or brands of
nonintoxicating beer or nonintoxicating craft beer and the price of the
nonintoxicating beer or nonintoxicating craft beer subject to state and federal
requirements or restrictions. The advertisement may not encourage intemperance.
(f) (g) Growler requirements.
-- A licensee authorized under this section must fill a growler and patrons are
not permitted to access the secure area or fill a growler. A licensee
authorized under this section must shall sanitize, fill, securely
seal and label any growler prior to its sale. A licensee authorized under this
section may only offer for retail sale up to two 64-ounce, or four 32-ounce,
growlers of nonintoxicating beer or nonintoxicating craft beer per customer per
day for personal consumption off of the licensed premises and not for resale. A
licensee under this section may refill a growler subject to the requirements of
this section. A licensee shall visually inspect any growler before filling or
refilling it. A licensee may not fill or refill any growler that appears to be
cracked, broken, unsafe or otherwise unfit to serve as a sealed beverage
container.
(g) (h) Growler labeling. -- A
licensee authorized under this section selling growlers shall affix a conspicuous
label on all sold and securely sealed growlers listing the name of the licensee
selling the growler, the brand of the nonintoxicating beer or nonintoxicating
craft beer in the growler, the alcohol content by volume of the nonintoxicating
beer or nonintoxicating craft beer in the growler and the date the growler was
filled or refilled, and, further, all labeling on the growler shall be
consistent with all federal labeling and warning requirements.
(h) (i) Growler sanitation. --
A licensed brewer or resident brewer authorized under this section shall clean
and sanitize all growlers he or she fills or refills in accordance with all
state and county health requirements prior to its sealing. In addition, the
licensed brewer or resident brewer shall sanitize, in accordance with all state
and county health requirements, all taps, tap lines, pipe lines, barrel tubes
and any other related equipment used to fill or refill growlers. Failure to
comply with this subsection may result in penalties under §11-16-23 of this
code.
(i) (j) Fee. -- Commencing
July 1, 2015, and by every July 1 thereafter, there is an annual $100
nonrefundable fee for a licensee, except for a licensed brewpub, to sell
growlers as provided by this section. The licensee must be in good standing
with the state at the time of paying the fee.
(j) (k) Limitations on licensees. --
A licensee under this section may only sell growlers during the hours of
operation set forth in §11-16-18(a)(1) of this code. Any licensee licensed
under this section must maintain a secure area for the sale of nonintoxicating
beer or nonintoxicating craft beer in a growler. The secure area must only be
accessible by the licensee. Any licensee licensed under this section shall
be is subject to the applicable penalties under §11-16-23 of this
code for violations of this section.
(k) (l) Nonapplicability of certain
statutes. -- Notwithstanding any other provision of this code to the
contrary, licensees under this section are permitted to break the seal of the
original container for the limited purpose of filling a growler as provided in
this section. Any unauthorized sale of nonintoxicating beer or nonintoxicating
craft beer or any consumption not permitted on the licensee's licensed premises
is subject to penalties under this article.
(l) (m) Rules. -- The commissioner is
authorized to may propose rules for legislative approval, pursuant
to §29A-3-1 et seq. of this code, to implement this section.
§11-16-11a. Nonintoxicating beer sampling.
(a) Notwithstanding any provision of this code to the
contrary, a Class A retail licensee may with the written approval of the
commissioner, conduct a nonintoxicating beer sampling event on a designated nonintoxicating
beer sampling day serve customers complimentary nonintoxicating beer
samples, with all taxes paid, from its inventory.
(b) At least five business days prior to the
nonintoxicating beer sampling, the Class A retail licensee shall submit a written
proposal to the commissioner requesting to hold a nonintoxicating beer sampling
event, including:
(1) The day of the event;
(2) the location of the event;
(3) The times for the event;
(4) The names of up to three specific brands, types and
flavors, if any, of the nonintoxicating beer to be sampled; and
(5) A statement indicating that all the nonintoxicating
beer brands have been registered and approved for sale in the state by the
commissioner.
(c) Upon approval by the commissioner, a Class A retail
licensee may serve the complimentary nonintoxicating beer samples of the
approved brands, types and flavors that are purchased by the Class A retail
licensee, with all taxes paid, from its inventory
(d) (b) The complimentary nonintoxicating
beer sample on any nonintoxicating beer sampling one day shall
may not exceed:
(1) One separate and individual sample serving per brand, type and flavor per customer verified to be 21 years of age or older; and
(2) Two ounces in total volume per brand, type and flavor.
(e) (c) Servers at the nonintoxicating
beer sampling event of complimentary nonintoxicating beer samples shall:
(1) Be employees of the Class A retail licensee;
(2) Be at least 21 years of age or older; and
(3) Have specific knowledge of the nonintoxicating beer being sampled to convey to the customer.
(f) (d) All servers at the
nonintoxicating beer sampling event of complimentary nonintoxicating
beer samples shall verify the age of the customer sampling nonintoxicating
beer by requiring and reviewing proper forms of identification. Servers at
the nonintoxicating beer event of complimentary nonintoxicating beer
samples may not serve any person who is:
(1) Under the age of 21 years; or
(2) Intoxicated.
(g) A nonintoxicating beer sampling event shall (e)
Provision of complimentary nonintoxicating beer samples shall occur only inside
the Class A retail licensee’s licensed premises.
(1) Occur only inside the Class A retail licensee's
licensed premises; and
(2) Cease on or before 9:00 p.m. on any approved
nonintoxicating beer sampling day
(h) (f) Any nonintoxicating beer bottle or
can used for sampling must shall be from the inventory of the
licensee. and clearly and conspicuously labeled "SAMPLE, NOT FOR RESALE".
If the seal is broken on any nonintoxicating beer bottle or can, or if any
nonintoxicating beer bottle or can is opened, then that nonintoxicating beer
bottle or can must be removed from the licensed premises immediately following
the event
(i) (g) Violations of this section are
subject to the civil and criminal penalties set forth in §11-16-18, §11-16-19,
§11-16-20, §11-16-22, §11-16-23, §11-16-24, and §11-16-25 of this code;
(j) (h) To implement the provisions of this
section, the commissioner may promulgate emergency rules pursuant to the
provisions of §29A-3-15 of this code or propose rules for legislative approval
in accordance with the provisions of §29A-3-1 et seq. of this code.
NOTE: The purpose of this bill is to permit licensed brewpubs, Class A retail dealers, Class B retail dealers, private clubs, Class A retail licensees and Class B retail licensees to serve complimentary samples of nonintoxicating beer or nonintoxicating craft beer manufactured in the State of West Virginia and to remove prior restrictions on Class A retail licensees’ ability to serve complimentary nonintoxicating beer samples to customers.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.