WEST virginia Legislature
2017 regular session
Introduced
House Bill 2563
By Delegates Howell and Ambler
[Introduced February 20,
2017; 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:
That §11-16-6b of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §11-16-11a of said code be amended and reenacted, all to read as follows:
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 subsection (i) of this section and meets the requirements of this section may offer nonintoxicating beer or nonintoxicating craft beer for retail sale to patrons from their 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 twenty-one 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 subdivisions (j) and (l), section three, article eight, chapter sixty 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 ten 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 twenty-one 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 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 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
section twenty-three of this article.
(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 subdivision (1), subsection (a), section eighteen of this article. 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 subject to the applicable penalties under section twenty-three
of this article 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 propose rules for legislative approval, pursuant to article
three, chapter twenty-nine-a 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 not
exceed:
(1) One separate and individual sample serving per brand, type and flavor per customer verified to be twenty-one 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 twenty-one 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 twenty-one years; or
(2) Intoxicated.
(g) (e) A nonintoxicating beer sampling event
shall 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 sections eighteen, nineteen,
twenty, twenty-two, twenty-three, twenty-four and twenty-five of this article;
(j) (h) To implement the provisions of this
section, the commissioner may promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a of this
code or propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a 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.