HB2820 H GO AM 3-21

Hubbard 3192

 

The Committee on Government Organization moved to amend the bill on page one, after the enacting clause by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §60-1-4 of the Code of West Virginia, 1931, as amended, be repealed; that §60-2-2, §60-2-3, §60-2-7, §60-2-9, §60-2-11, §60-2-12, §60-2-13, §60-2-14, §60-2-15, §60-2-16, §60-2-17, §60-2-18, §60-2-19, §60-2-20, §60-2-21, and §60-2-22 of said code be repealed; that §60-3-1, §60-3-2, §60-3-3, §60-3-4, §60-3-5, §60-3-6, §60-3-7, §60-3-8, §60-3-9, §60-3-9d §60-3-10, §60-3-11, §60-3-12, §60-3-13, §60-3-14, §60-3-15, §60-3-16, §60-3-17, §60-3-18, §60-3-20, §60-3-21, §60-3-22, §60-3-23, §60-3-24, and §60-3-25 of said code be repealed; that §11-16-3 and §11-16-4 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §11-16A-1, §11-16A-2, and §11-16A-3; that said code be amended by adding thereto a new article, designated §29-22D-1, §29-22D-2, §29-22D-3, §29-22D-4, §29-22D-5, §29-22D-6, §29-22D-7, §29-22D-8, §29-22D-9, §29-22D-10, §29-22D-11, §29-22D-12, §29-22D-13, §29-22D-14, §29-22D-15, §29-22D-16, §29-22D-17, and §29-22D-18; that §60-1-5 of said code be amended and reenacted; and that §60-2-1 of said code be amended and reenacted, all to read as follows:

CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.

§11-16-3. Definitions.

For the purpose of this article, except where the context clearly requires differently:

(1) "Brand" means a nonintoxicating beer product manufactured, brewed, mixed, concocted, blended, bottled or otherwise produced, or imported or transhipped by a brewer or manufacturer, the labels of which have been registered and approved by the commissioner that is being offered for sale or sold in West Virginia by a distributor who has been appointed in a valid franchise agreement or a valid amendment thereto.

(2) "Brewer" or "manufacturer" means any person manufacturing, otherwise producing or importing or transhipping nonintoxicating beer or nonintoxicating craft beer for sale at wholesale to any licensed distributor. Brewer or manufacturer may be used interchangeably throughout this article. A brewer may obtain only one brewer's license for its nonintoxicating beer or nonintoxicating craft beer.

(3) "Brewpub" means a place of manufacture of nonintoxicating beer or nonintoxicating craft beer owned by a resident brewer, subject to federal and state regulations and guidelines, a portion of which premises are designated for retail sales of nonintoxicating beer or nonintoxicating craft beer by the resident brewer owning the brewpub.

(4) "Class A retail license" means a retail license permitting the retail sale of liquor at a freestanding liquor retail outlet licensed pursuant to chapter sixty of this code.

(5) "Class B retail license" means a retail license permitting the retail sale of liquor at a mixed retail liquor outlet licensed pursuant to chapter sixty of this code.

(6) "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner the State Lottery Commission.

(7) "Distributor" means and includes any person jobbing or distributing nonintoxicating beer or nonintoxicating craft beer to retailers at wholesale and whose warehouse and chief place of business shall be within this state. For purposes of a distributor only, the term "person" means and includes an individual, firm, trust, partnership, limited partnership, limited liability company, association or corporation. Any trust licensed as a distributor or any trust that is an owner of a distributor licensee, and the trustee or other persons in active control of the activities of the trust relating to the distributor license, is liable for acts of the trust or its beneficiaries relating to the distributor license that are unlawful acts or violations of article eleven of this chapter notwithstanding the liability of trustees in article ten, chapter forty-four-d of this code.

(8) "Franchise agreement" means the written agreement between a brewer and a distributor that is identical as to terms and conditions between the brewer and all its distributors, which agreement has been approved by the commissioner. The franchise agreement binds the parties so that a distributor, appointed by a brewer, may distribute all of the brewer's nonintoxicating beer products, brands or family of brands imported and offered for sale in West Virginia, including, but not limited to, existing brands, line extensions and new brands all in the brewer's assigned territory for the distributor. All brands and line extensions being imported or offered for sale in West Virginia must be listed by the brewer in the franchise agreement or a written amendment to the franchise agreement. A franchise agreement may be amended by mutual written agreement of the parties as approved by the commissioner with identical terms and conditions for a brewer and all of its distributors. Any approved amendment to the franchise agreement becomes a part of the franchise agreement. A brewer and a distributor may mutually agree in writing to cancel a franchise agreement. A distributor terminated by a brewer as provided in this article and the promulgated rules no longer has a valid franchise agreement. If a brewer has reached an agreement to cancel a distributor or has terminated a distributor, then a brewer may appoint a successor distributor who accedes to all the rights of the cancelled or terminated distributor.

(9) "Franchise distributor network" means the distributors who have entered into a binding written franchise agreement, identical as to terms and conditions, to distribute nonintoxicating beer products, brands and line extensions in an assigned territory for a brewer. A brewer may only have one franchise distributor network: Provided, That a brewer that has acquired the manufacturing, bottling or other production rights for the sale of nonintoxicating beer at wholesale from a selling brewer as specified in subdivision (2), subsection (a), section twenty-one of this article shall continue to maintain and be bound by the selling brewer's separate franchise distributor's network for any of its existing brands, line extensions and new brands.

(10) "Freestanding liquor retail outlet" means a retail outlet that sells only liquor, beer, nonintoxicating beer and other alcohol-related products, as defined pursuant to section four, article three-a, chapter sixty of this code.

(11) "Growler" means a container or jug that is made of glass, ceramic, metal or other material approved by the commissioner, that may be only thirty-two or sixty-four fluid ounces in size and must be capable of being securely sealed. The growler is utilized by an authorized licensee for purposes of off-premise sales only of nonintoxicating beer or nonintoxicating craft beer for personal consumption not on a licensed premise and not for resale. Notwithstanding any other provision of this code to the contrary, a securely sealed growler is not an open container under federal, state and local law. A growler with a broken seal is an open container under federal, state and local law unless it is located in an area of the motor vehicle physically separated from the passenger compartment. The secure sealing of a growler requires the use of a tamper-resistant seal, security tape or other material, as approved by the commissioner, placed on or over the growler's opening, which seal, security tape or other material is clearly marked with the date of the secure sealing by the authorized licensee who is selling the growler.

(12) "Line extension" means any nonintoxicating beer product that is an extension of brand or family of brands that is labeled, branded, advertised, marketed, promoted or offered for sale with the intent or purpose of being manufactured, imported, associated, contracted, affiliated or otherwise related to a brewer's existing brand through the use of a brewer, its subsidiaries, parent entities, contracted entities, affiliated entities or other related entities. In determining whether a nonintoxicating beer product is a line extension, the commissioner may consider, but is not limited to, the following factors: Name or partial name; trade name or partial trade name; logos; copyrights; trademarks or trade design; product codes; advertising promotion or pricing.

(13) "Nonintoxicating beer" means all natural cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale and all other mixtures and preparations produced by the brewing industry, including malt coolers and nonintoxicating craft beers with no caffeine infusion or any additives masking or altering the alcohol effect containing at least one half of one percent alcohol by volume, but not more than nine and six-tenths of alcohol by weight, or twelve percent by volume, whichever is greater. The word "liquor" as used in chapter sixty of this code does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.

(14) "Nonintoxicating beer sampling event" means an event approved by the commissioner for a Class A retail licensee to hold a nonintoxicating beer sampling authorized pursuant to section eleven-a of this article.

(15) "Nonintoxicating beer sampling day" means any days and hours of the week where Class A retail licensees may sell nonintoxicating beer pursuant to section eleven-a and subdivision (1), subsection (a), section eighteen of this article, and is approved, in writing, by the commissioner to conduct a nonintoxicating beer sampling event.

(16) "Nonintoxicating craft beer" means any beverage obtained by the natural fermentation of barley, malt, hops or any other similar product or substitute and containing not less than one half of one percent by volume and not more than twelve percent alcohol by volume or nine and six-tenths percent alcohol by weight with no caffeine infusion or any additives masking or altering the alcohol effect.

(17) "Original container" means the container used by a resident brewer or brewer at the place of manufacturing, bottling or otherwise producing nonintoxicating beer or nonintoxicating craft beer for sale at wholesale.

(18) "Person" means and includes an individual, firm, partnership, limited partnership, limited liability company, association or corporation.

(19) "Private club" means a license issued pursuant to article seven, chapter sixty of this code.

(20) "Resident brewer" means any brewer or manufacturer of nonintoxicating beer or nonintoxicating craft beer whose principal place of business and manufacture is located in the state of West Virginia and which does not brew or manufacture more than twenty-five thousand barrels of nonintoxicating beer or nonintoxicating craft beer annually, and does not self-distribute more than ten thousand barrels thereof in the state of West Virginia annually.

(21) "Retailer" means any person selling, serving, or otherwise dispensing nonintoxicating beer and all products regulated by this article, including, but not limited to, malt coolers at his or her established and licensed place of business.

(22) "Tax Commissioner" means the Tax Commissioner of the State of West Virginia or the commissioner's designee.

§11-16-4. Responsibility of Alcohol Beverage Control Commissioner State Lottery Commission; administrators, employees and agents; administration and enforcement expenses.

(a) The Alcohol Beverage Control Commissioner described under the provisions of article two, chapter sixty of this code The State Lottery Commission shall have sole responsibility for the administration of this article, except for those responsibilities expressly vested in the Tax Commissioner under sections thirteen, fourteen and fifteen of this article.

All acts heretofore performed by the nonintoxicating beer Alcohol Beverage Control Commissioner under previous proceedings of this article are hereby again ratified and confirmed, and the commissioner lottery commission shall succeed to the same position previously maintained by the nonintoxicating beer Alcohol Beverage Control Commissioner in all proceedings and official acts instituted and perfected under the provisions of this article prior to the effective date of this section.

(b) The commissioner lottery commission shall appoint an adequate number of competent persons to serve as administrators, employees and agents of the commissioner lottery commission for the purpose of keeping all necessary accounts and records required under the provisions of this article; investigating the books, accounts, records and other papers of retailers, distributors and brewers; investigating applicants for license and the places of business of retailers, distributors and brewers; procuring evidence with respect to violations of the provisions of this article, and particularly for use at hearings held by the commissioner lottery commission and on proceedings instituted in court for the purpose of revoking or suspending licenses hereunder; and such administrators, employees and agents shall perform such other duties as the commissioner lottery commission may direct. Such administrators, employees and agents shall have the right to enter any licensed premises in the state in the performance of their duties at any hour of the day or night when beer is being sold or consumed on such licensed premises. Refusal by any licensee or by any employee of a licensee to permit such administrators, employees or agents to enter the licensed premises shall be an additional cause for revocation or suspension of the license of such licensee by the commissioner lottery commission. The compensation of such administrators, employees and agents shall be fixed by the commissioner lottery commission: Provided, That the commissioner lottery commission may employ up to eleven special investigators who shall be nonclassified exempt employees of the division.

(c) Services rendered the state by clerks, sheriffs, commissioners in chancery and special commissioners, designated by the court, and court reporters and stenographers performing services for said commissioner lottery commission and fees of witnesses summoned on behalf of the state in proceedings to revoke or suspend retailer's licenses shall be treated as part of the expenses of administration and enforcement, and such officers and said other persons shall be paid the same fees and charges as would be chargeable for like services performed for an individual; and the compensation of such clerks, sheriffs and other persons shall be paid out of the amount allocated for the expense of administration enforcement, after the amount of such fees and other charges shall be certified by the court to the Auditor.

ARTICLE 16A. Wine, Liquor and spirits.

§11-16A-1. Case tax on spirits.

(a) There is hereby levied a tax of twenty-eight percent of the value of every case of spirits distributed by distributors to retailors.

(b) The State Tax Commissioner shall determine how such tax shall be collected and be paid to the state. The proceeds of the tax shall be placed in the General Revenue Fund of the state to be appropriated by the Legislature as needed to the State Lottery Commission to administer section four, article sixteen, chapter eleven, article twenty-two-d, chapter twenty-nine, and chapter sixty of this code.

§11-16A-2. Collection of unpaid license tax.

If the State Tax Commissioner determines any licensee to be liable for any unpaid taxes, and who shall fail to pay the same as required, the tax commissioner shall be authorized to institute collection remedies provided for in article ten of this chapter. In addition, the State Lottery Commission may revoke the license of any such person failing to pay any such tax.

§11-16A-3. Tax on purchases of intoxicating liquors outside corporate limits of municipalities.

For the purpose of providing financial assistance to and for the use and benefit of the various counties and municipalities of this state, there is hereby levied a tax upon all purchases outside the corporate limits of any municipality of intoxicating liquor from state stores or other agencies of the State Lottery Commission, of wine from any person licensed to sell wine at retail under the provisions of article eight, chapter sixty of this code, and of wine from distributors licensed to sell or distribute wine under the provisions of said article eight. The tax shall be five percent of the purchase price and shall be added to and collected with the purchase price by the commission, by the person licensed to sell wine at retail, or by the distributor licensed to sell or distribute wine, as the case may be: Provided, That no such tax shall be collected on the intoxicating liquors sold by or purchased from holders of a license issued under the provisions of article seven, chapter sixty of this code.

All such tax collected within one mile of the corporate limits of any municipality within the state shall be remitted to such municipality; all other tax so collected shall be remitted to the county wherein collected: Provided, That where the corporate limits of more than one municipality be within one mile of the place of collection of such tax, all such tax collected shall be divided equally among each of said municipalities: Provided, however, That such mile is measured by the most direct hard surface road or access way usually and customarily used as ingress and egress to the place of tax collection.

The State Lottery Commission by appropriate rules and regulations shall provide for the collection of such tax upon all purchases outside the corporate limits of any municipality of intoxicating liquor from state stores or other agencies of the State Lottery Commission, separation or proration of the same and distribution thereof to the respective counties and municipalities for which the same shall be collected. The Tax Commissioner by appropriate rules and regulations shall provide for the collection of such tax upon all purchases outside the corporate limits of any municipality of wine from any person licensed to sell wine at retail under the provisions of article eight, chapter sixty of this code, or from distributors licensed to sell or distribute wine under the provisions of said article eight, and shall also provide for separation or proration of the same and distribution thereof to the respective counties and municipalities for which the same shall be collected. Such rules and regulations shall provide that all such taxes shall be deposited with the state Treasurer and distributed quarterly by the treasurer upon warrants of the Auditor payable to the counties and municipalities.

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

Article 22D.  alcohol beverage, beer and wine administration; distibutor licenses.

§29-22D-1. Transfer of duties of alcohol beverage control commissioner to State Lottery Commission.

On July 1, 2017, the State Lottery Commission shall begin exercising all powers and duties formerly exercised by the alcohol beverage control commissioner under the provisions of article sixteen, chapter eleven and the provisions of chapter sixty of this code.

§29-22D-2. Powers and duties.

The State Lottery Commission shall have, in addition to all other powers granted that commission by this code, the following powers and duties and any and all other powers and duties reasonably necessary and convenient for the purpose of this article and the purpose of chapter sixty of this code:

(1) Exercise general supervision of, and make rules and regulations for, the management of his or her agency;

(2) Sign and execute in the name of the commission any contract or agreement authorized by this chapter;

(3) Supervise the fiscal affairs and responsibilities of the agency;

(4) With the approval of the Governor and the board of public works, sell, in part or in whole, the real estate containing 12.168 acres and a warehouse situate on River Road in the Hub Industrial Park, Nitro, Putnam County, for a sale price of at least the appraised fair market value and upon terms the commission determines to be in the best interest of the State of West Virginia;

(5) Keep a complete and accurate record of all proceedings, record and file all bonds and contracts taken or entered into and assume responsibility for the custody and preservation of all papers and documents pertaining to the commission;

(6) Purchase or lease as provided by law all equipment necessary for the conduct of the agency;

(7) Report to the Governor each year all information relative to the operation and functions of the agency. The commission shall make such other reports and recommendations as may be required by the Governor;

(8) Exercise any other power that may be necessary or proper for the orderly conduct of the business and the effective discharge of the duties of the commission; and

(9) Invoke any legal or equitable remedies for the enforcement of the orders of the commission or the provisions of this article or the provisions of chapter sixty of this code.

§29-22D-3. Licenses for distributors of alcohol beverages.

(a) Beginning July 1, 2017, all alcohol beverages may only be distributed to retailors by licensed alcohol beverage distributors according to the provisions of chapter sixty of this code: Provided, That no liquor may be sold by distributors until all liquor of the same brand, variety, class, and size still in the possession of the former alcohol beverage control commissioner or its successors has been sold. Initially, all persons who have contracted with the alcohol beverage control commission to supply alcohol beverages which the commission sold to retailers are automatically licensed as distributors under this section.  In addition, persons presently licensed to distribute beer or wine may choose to become licensed distributors of alcohol beverages with no further requirements.

(b) The lottery director shall by legislative rule promulgated under the provisions of article three, chapter twenty-nine-a of this code and approved by the Legislature establish the requirements to be licensed as an alcohol beverage distributor.  All alcohol beverage distributor licenses shall be issued by the director.

§29-22D-4. Authority to grant and revoke licenses.

The commission shall have the authority to grant and revoke licenses as provided in this article and as provided in chapter sixty of this code.

§29-22D-5. Assistants and employees.

The commission shall appoint or employ such assistants and employees as may be necessary to the efficient operation of the department and fix their salaries. All assistants and employees shall be appointed or employed to serve during the will and pleasure of the commission: Provided, That the State Lottery Commission shall initially hire as many inspectors as it deems necessary to enforce the provisions of this article and the provisions of chapter sixty of this code from among the inspectors employed by the Alcohol Beverage Commission as of the effective date of this article.

§29-22D-6. Bonds of employees.

The commission shall require every employee who collects fees or handles funds, or who has custody of equipment, supplies, and other property belonging to the state, to take the oath prescribed by section 5, article IV of the state Constitution; and the commission shall require to be furnished by every employee, or shall itself obtain, a bond, insurance policy, indemnity contract, or other contract, protecting and indemnifying the state against any and all loss or damage that may be occasioned by the failure of the employee faithfully to perform the duties pertaining to his or her employment, and to account for, pay over and deliver to the proper officer or agent of the commission or state all moneys and other property which may come into his or her custody or under his or her control by virtue of his or her employment. Such bond, insurance policy, indemnity contract, or other contract, shall be in such form, and in such sum, and with such security, as may be prescribed or approved by the commission, and may cover any one employee or any number of employees. The premiums for all such bonds, insurance policies, indemnity contracts, or other contracts, shall be paid by the commission.

§29-22D-7. Regulation of advertising.

The commission shall prescribe regulations governing the advertising of alcoholic liquors in this state. The regulations shall prohibit advertising that encourages intemperance, induces minors to purchase, or tends to deceive or misrepresent.

§29-22D-8. Rules and regulations.

The commission shall have the power to prescribe rules and regulations to give effect to the powers vested in it by this article and by chapter sixty of this code. Rules and regulations shall be recorded in a book especially kept for that purpose, and in its discretion may be published for general circulation. All other records and entries necessary to show the official conduct of the commission shall be preserved and shall be public records and open for inspection during business hours.

§29-22D-9. Powers and duties exercised by employees.

All powers and duties vested in the commission, except the power to sign contracts, may be exercised by the appointees or employees of the commission under its direction; but the commission shall be responsible for their acts.

§29-22D-10. Authority of employees to make arrests; penalty for resisting or assaulting employee; enforcement.

(a) An appointee or employee of the commission who is enforcing the provisions of this article or the provisions of chapter sixty of this code shall have the authority of a peace officer, to arrest a person for an act committed on or about the premises of a state store, or agency, and in his presence, which amounts to:

(1) A violation of a provision of this article;

(2) A violation of a provision of chapter sixty; or

(3) Disorderly conduct.

(b) The commission shall furnish its appointees and employees with an official badge as evidence of this authority.

(c) A person who resists or commits an assault upon an appointee or employee of the commission while engaged in the performance of his duties hereunder shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by confinement in jail not less than thirty days nor more than six months, or, in the discretion of the court, by both such fine and imprisonment.

(d) Members of the commission are hereby vested, and such officers, agents and employees of the commission as shall be designated by the commission shall, upon being so designated, be vested, with like power and authority to enforce the provisions of this article, the provisions of chapter sixty and the criminal laws of the state relating thereto as are vested in sheriffs of counties and members of the department of public safety.

§29-22D-11. Hearings and proceedings.

In all hearings and proceedings before the commission, the evidence of witnesses and the production of documentary evidence may be required. Summons may be issued by it for appearance at any designated place of hearing. In case of disobedience to a summons or other process, the commission or any party to the proceedings before the commission may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, bonds and documents. Upon proper showing, the court shall issue an order requiring witnesses to appear before the commission, produce all books and papers, and give evidence touching the matter in question. Any person failing to obey the order may be punished by the court as for contempt. A claim that evidence may tend to incriminate the person giving the evidence shall not excuse him or her from testifying, but he or she shall not be prosecuted for any offense concerning which he or she is compelled to testify.

§29-22D-12. Legal services.

The Attorney General and the prosecuting attorneys of the several counties shall render to the commission, without additional compensation, such legal services as it may require of them in the discharge of its duties under the provisions of this article and the provisions of chapter sixty.

§29-22D-13. Civil responsibility.

The members of the commission shall not be civilly responsible for any act done or omitted in good faith in the discharge of duties imposed upon them by this article or by chapter sixty.

§29-22D-14. Audit.

 Beginning with fiscal year 2020 and at least every five fiscal years, the Legislative Auditor shall audit the affairs of the West Virginia Lottery Commission related to the provisions of this article and chapter sixty and report the results of the audit to the Governor and the Joint Standing Committee on Government and Finance.

§29-22D-15. Sales to certain persons prohibited.

(a) Alcoholic liquors and nonintoxicating beer as defined in section three, article sixteen, chapter eleven of this code shall not be sold to a person who is:

(1) Less than twenty-one years of age;

(2) An habitual drunkard;

(3) Intoxicated;

(4) Addicted to the use of any controlled substance as defined by any of the provisions of chapter sixty-a of this code; or

(5) Mentally incompetent.

(b) It shall be a defense to a violation of subdivision (1), subsection (a) of this section if the seller shows that the purchaser:

(1) Produced written evidence which showed his or her age to be at least the required age for purchase and which bore a physical description of the person named on the writing which reasonably described the purchaser; or

(2) Produced evidence of other facts that reasonably indicated at the time of sale that the purchaser was at least the required age.

§29-22D-16. Unlawful acts by persons.

(a) Any person under the age of twenty-one years who, for the purpose of purchasing alcoholic liquors from a state liquor store or an agency, misrepresents his or her age, or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase alcoholic liquors from a state liquor store or an agency, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed $50 or shall be imprisoned in the county jail for a period not to exceed seventy-two hours, or both such fine and imprisonment, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.

(b) Any person who shall knowingly buy for, give to or furnish to anyone under the age of twenty-one to whom they are not related by blood or marriage, any alcoholic liquors from whatever source, is guilty of a misdemeanor and, shall, upon conviction thereof, be fined in an amount not to exceed $100 or shall be imprisoned in the county jail for a period not to exceed ten days, or both such fine and imprisonment.

§29-22D-17. Permit for farm winery to import produce in excess of established limits.

Upon application by the holder of a farm winery license, filed with the State Lottery Commission, showing, due to unusual climatic or other conditions adversely affecting its ability to obtain from within this state seventy-five percent of the grapes, grape juice, other fruits or fruit juices or honey necessary to produce its wine, the commission may issue to the applicant a permit to import such products in an amount deemed necessary by the commission to allow such farm winery to produce wine within the quota established by section five-a, article one of chapter sixty. The permit issued under this section shall not be effective for more than ninety days. The burden of proof shall be upon the applicant to show that grapes, grape juice, fruit, fruit juice or honey of the type normally used by the licensee are not available from any other source within the State of West Virginia, and no application for a permit under this section shall be considered by the commission unless it is accompanied by written findings by the West Virginia agriculture commissioner in support thereof.

§29-22D-18. Authority to utilize scanner technology in sales; authority to execute contracts relating thereto.

(a) The commission may, pursuant to this article and chapter sixty of this code, authorize and establish standards for the use of scanner technology for the verification of age of purchasers of alcoholic beverages and wine, as provided in this article and as provided in chapter sixty, and nonintoxicating beer as provided for in article sixteen, chapter eleven of this code. Any scanner technology may not be used for the collection of personal identifiable information of any purchaser, which includes, but is limited to, drivers license number, social security number or other descriptive information contained on the license, other than the age of the purchaser.

(b) In addition to the commission's powers set forth in this article and set forth in chapter sixty of this code, the commission may sign and execute in the name of the office of State Lottery Commission one or more contracts or agreements pertaining to the sale or licensing and promotion of proprietary scanner technology by the commission, or its designated contractual partner, to any interested person, upon terms the commission believes to be in the best interests of this state, and to amend, extend or terminate any contract or agreement: Provided, That all contracts are subject to the review process contained in section thirteen, article three, chapter five-a of this code.

(c) "Scanner technology" includes any device that uses technology intended to control the access of minors to alcohol and tobacco products and which is capable of:

(1) Capturing the information from a bar code or magnetic strip on a driver's license or identification card issued by the Division of Motor Vehicles;

(2) Producing a declaration of age in print form and storing a record of the event in memory;

(3) Producing an audible, visual and printed result;

(4) Reporting a history of the events, including the ability to transfer the data for archiving and database development purposes; and

(5) Storing at least one thousand events at any time before data is transferred.

(d) Moneys derived from the sale, licensing and promotion of the proprietary scanner technology shall be deposited in a special account in the state Treasury to be known as the "Scanner Technology Fund." Expenditures from the fund shall be for the maintenance and development of the proprietary scanner technology described in this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code.

CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 1. GENERAL PROVISIONS.

§60-1-5. Definitions.

For the purposes of this chapter:

"Alcohol" shall means ethyl alcohol whatever its origin and shall include synthetic ethyl alcohol but not denatured alcohol.

"Beer" means any beverage obtained by the fermentation of barley, malt, hops or any other similar product or substitute, and containing more alcohol than that of nonintoxicating beer.

"Nonintoxicating beer"  means any beverage obtained by the fermentation of barley, malt, hops or similar products or substitute and containing not more alcohol than that specified by section two, article sixteen, chapter eleven of this code.

"Wine" means any alcoholic beverage obtained by the fermentation of the natural content of fruits, or other agricultural products, containing sugar.

"Spirits" means any alcoholic beverage obtained by distillation and mixed with potable water and other substances in solution and includes brandy, rum, whiskey, cordials and gin.

"Alcoholic liquor" includes alcohol, beer, wine and spirits and any liquid or solid capable of being used as a beverage, but shall not include nonintoxicating beer.

"Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor.

"Sale" means any transfer, exchange or barter in any manner or by any means, for a consideration, and shall include all sales made by principal, proprietor, agent or employee.

"Selling" includes solicitation or receipt of orders; possession for sale; and possession with intent to sell.

"Person" means an individual, firm, partnership, limited partnership, corporation or voluntary association.

"Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor.

"Manufacturer" means any person engaged in the manufacture of any alcoholic liquor, and among others includes a distiller, a rectifier, a wine maker and a brewer.

"Brewery" means an establishment where beer is manufactured or in any way prepared.

"Winery" means an establishment where wine is manufactured or in any way prepared.

"Distillery" means an establishment where alcoholic liquor other than wine or beer is manufactured or in any way prepared.

"Public place" means any place, building or conveyance to which the public has, or is permitted to have access, including restaurants, soda fountains, hotel dining rooms, lobbies and corridors of hotels and any highway, street, lane, park or place of public resort or amusement: Provided, That the term "public place" shall not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of this chapter to sell alcoholic liquors for consumption on the premises: Provided, however, That the term "public place" shall not mean or include any legally demarcated area designated solely for the consumption of beverages and freshly prepared food that directly connects and adjoins any portion or portions of a premises that qualifies and is licensed under the provisions of this chapter to sell alcoholic liquors for consumption thereupon: Provided further, That the term "public place" shall also not include a facility constructed primarily for the use of a Division I college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer or other Division I sports stadium which holds a special license to sell wine pursuant to the provisions of section three, article eight of this chapter, in the designated areas of sale and consumption of wine and other restrictions established by that section and the terms of the special license issued thereunder.

"State liquor store means a store established and operated by the commission under this chapter for the sale of alcoholic liquor in the original package for consumption off the premises.

"An agency" means a drugstore, grocery store or general store designated by the commission as a retail distributor of alcoholic liquor for the West Virginia Alcohol Beverage Control Commissioner.

"Department" means the organization through which the commission exercises powers imposed upon it by this chapter.

"Commissioner" or "commission" means the West Virginia Alcohol Beverage Control Commissioner State Lottery Commission.

"Intoxicated" means having one's faculties impaired by alcohol or other drugs to the point where physical or mental control or both are markedly diminished.

"Powdered alcohol" means an alcohol manufactured in a powder or crystalline form for either direct use or reconstitution as an alcoholic liquor or food. For purposes of this chapter, powdered alcohol excludes any material intended for industrial purposes.

ARTICLE 2. ALCOHOL BEVERAGE CONTROL COMMISSIONER abolished.

§60-2-1. Office created; powers and functions generally; office of liquor control alcohol beverage control commissioner abolished and powers transferred.

(a) To accomplish the purposes of this chapter there is hereby created the office of West Virginia Alcohol Beverage Control Commissioner. The commissioner shall have and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by the West Virginia liquor control commissioner. The office of the West Virginia liquor control commissioner is hereby abolished. Wherever in this chapter and elsewhere in law reference is made to the West Virginia liquor control commissioner or liquor control commission such reference shall henceforth be construed and understood to mean the West Virginia Alcohol Beverage Control Commissioner. All parts and provisions of this chapter rendered meaningless and inapplicable by the provisions hereof are hereby modified and amended so that the provisions of this chapter will be consistent and harmonious in their entirety.

(b)  On July 1, 2017, the office of alcohol beverage control commissioner is hereby abolished and shall cease to exercise any functions contained in this chapter and article sixteen, chapter eleven of this code.  All powers and duties formerly exercised by the commissioner are hereby transferred to, and shall be exercised by the State Lottery Commission.  Any references in this chapter and article sixteen, chapter eleven of this code to the alcohol beverage control commissioner shall be read as the lottery commission.

(c) All funds operated and maintained by the alcohol beverage control commissioner shall be transferred to the State Lottery Commission.  The balance of the Administrative Liquor Fund shall be placed in the General Revenue Fund of the state to be appropriated by the Legislature: Provided, That any amounts necessary to cover existing debts or obligations that would be covered from this fund may be dispersed to the State Lottery Commission to be used exclusively for such debts or obligations.”

Adopted

Rejected