SB610 SFA #1 Trump 2-5
Smith 7883
Senator Trump moved to amend the bill on pages one through six, by striking out all of section three and inserting in lieu thereof a new section, designated section three, 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, imported, or transshipped 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, importing, or transshipping 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 is 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 60 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 60 of this code.
(6) “Commissioner” means the West Virginia Alcohol Beverage Control Administration Commissioner.
(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 §11-11-1 et seq. of this code notwithstanding the liability of trustees in §44D-10-1 et seq. 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 §11-16-21(a)(2) of this code 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, wine, beer, nonintoxicating beer, and other alcohol-related products, as defined pursuant to §60-3A-4 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 no larger than 128 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) “Manager” means an individual who is the applicant’s or licensee’s on-premises employee, member, partner, shareholder, director, or officer who meets the licensure requirements of §11-16-1 et seq. of this code and rules promulgated thereunder who actively manages, conducts, and carries on the day-to-day operations of the applicant or licensee with full and apparent authority or actual authority to act on behalf of the applicant or licensee. Such duties include but are not limited to: coordinating staffing; reviewing and approving payroll; ordering and paying for inventory, such as nonintoxicating beer, wine, and liquor, as applicable; and managing security staff, security systems, video and other security equipment; and any further acts or actions involved in managing the affairs of the business, on behalf of owners, partners, members, shareholders, officers, or directors.
(13) (14) “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 11.9 percent of alcohol by weight, or 15 percent alcohol by volume,
whichever is greater. The word “liquor” as used in chapter 60 of this code does
not include or embrace nonintoxicating beer nor any of the beverages, products,
mixtures, or preparations included within this definition.
(14) (15) “Nonintoxicating beer floor plan
extension” means a temporary one-day extension of an existing Class A
licensee’s floor plan to a contiguous, adjoining and bounded area, such as a
parking lot or outdoor area, which shall for the temporary period encompass the
licensee’s licensed premises; further such the
license shall be endorsed or approved by the county or municipality where the
license is located; such the
license shall be in good standing with the commissioner, and further such
temporary event shall cease on or before midnight of the approved temporary
one-day event.
(15) (16) “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 §11-16-11a of this
code.
(16) (17) “Nonintoxicating beer sampling day” means
any days and hours of the week where Class A retail licensees may sell
nonintoxicating beer pursuant to §11-16-11a and §11-16-18(a)(1) of this code,
and is approved, in writing, by the commissioner to conduct a nonintoxicating
beer sampling event.
(17) (18) “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 15 percent alcohol by volume or 11.9
percent alcohol by weight with no caffeine infusion or any additives masking or
altering the alcohol effect.
(18) (19) “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.
(19) (20) “Person” means and includes an
individual, firm, partnership, limited partnership, limited liability company,
association, or corporation.
(20) (21) “Private club” means a license issued
pursuant to §60-7-1 et seq. of this code.
(21) (22) “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 25,000 barrels of
nonintoxicating beer or nonintoxicating craft beer annually, and does not
self-distribute more than 10,000 barrels thereof in the State of West Virginia
annually.
(22) (23) “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.
(23) (24) “Tax Commissioner” means the Tax
Commissioner of the State of West Virginia or the commissioner’s designee.;
On pages six through eight, section eight, lines three through thirty-six, by striking out all of subdivision (1) and inserting in lieu thereof a new subdivision, designated subdivision (1), to read as follows:
“(1) The name and residence
of the applicant, the duration of such residency, that the applicant has
been a resident of the state for a period of two years preceding the date of
the application and that the applicant is 21 years of age. If the applicant
is a firm, association, partnership, limited partnership, limited liability
company, or corporation, the application shall include the residence of the
members or officers for a period of two years preceding the date of such
application. If a person, firm, partnership, limited partnership, limited
liability company, association, corporation, or trust applies for a license as
a distributor, such the
person, or in the case of a firm, partnership, limited partnership, limited
liability company, association or trust, the members, officers, trustees or
other persons in active control of the activities of the limited liability
company, association or trust relating to the license, shall state under
oath that each has been a bona fide resident of the state for four years
preceding the date of such include the residency for these persons on
the application. All applicants
and licensees must include a manager on the applicant’s license application, or
a licensee’s renewal application who must meet all other requirements of
licensure, including, but not limited to, United States citizenship or
naturalization, passing a background investigation, being at least 21 years of
age, being a suitable person, being of good morals and character, and other
requirements, all as set forth in this article and the rules, promulgated
thereunder, all in the interest of protecting public health and safety and
being a suitable applicant or licensee. In order to maintain licensure, a
licensee shall notify the commissioner immediately of a change in managers. If the applicant is a trust or has a trust as an
owner, the trustees or other persons in active control of the activities of the
trust relating to the license shall provide a certification of trust as
described in §44D-10-1013 of this code. This certification of trust shall
include the excerpts described in §44D-10-1013(e), of this code and shall
further state, under oath, the names, addresses, Social Security numbers and
birth dates of the beneficiaries of the trust and certify that the trustee and
beneficiaries are 21 years of age or older. If a beneficiary is not 21 years of
age, the certification of trust must state that such the beneficiary’s interest in the trust is represented by
a trustee, parent, or legal guardian who is 21 years of age and who will direct
all actions on behalf of such the
beneficiary related to the trust with respect to the distributor until the
beneficiary is 21 years of age. Any beneficiary who is not 21 years of age or
older shall have his or her trustee, parent, or legal guardian include in the
certification of trust and state under oath his or her name, address, Social
Security number and birth date;”;
On page ten, section eight, lines one hundred three through one hundred six, by striking out all of subdivision (3) and inserting in lieu thereof a new subdivision, designated subdivision (3), to read as follows:
“(3) That the manager, owner, employee, or person is in a contractual relationship to provide goods or services to the applicant is an active employee of the commissioner; or”;
And,
On pages sixteen through twenty-one, by striking out all of section five and inserting in lieu thereof a new section, designated section five, to read as follows:
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 1. GENERAL PROVISIONS.
§60-1-5. Definitions.
For the purposes of this chapter:
(1) “Alcohol” shall means ethyl alcohol whatever
its origin and shall include synthetic ethyl alcohol but not denatured alcohol.
(2) “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.
(3) “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 Commission.
(4) “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.
(5) “Brewery” means an establishment where beer is manufactured or in any way prepared.
(6) “Commissioner” or “commission” means the West Virginia Alcohol Beverage Control Commissioner.
(7) “Department” means the organization through which the commission exercises powers imposed upon it by this chapter.
(8) “Distillery” means an establishment where alcoholic liquor other than wine or beer is manufactured or in any way prepared.
(9) “Intoxicated” means a person’s faculties are impaired by alcohol or other substance to the point where physical or mental control or both are markedly diminished.
(10) “Manager” means an individual who is the applicant’s or licensee’s on-premises employee, member, partner, shareholder, director, or officer who meets the licensure requirements of §11-16-1 et seq. of this code and rules promulgated thereunder who actively manages, conducts, and carries on the day-to-day operations of the applicant or licensee with full and apparent authority or actual authority to act on behalf of the applicant or licensee. Such duties include but are not limited to: coordinating staffing; reviewing and approving payroll; ordering and paying for inventory, such as nonintoxicating beer, wine, and liquor, as applicable; and managing security staff, security systems, video and other security equipment; and any further acts or actions involved in managing the affairs of the business, on behalf of owners, partners, members, shareholders, officers, or directors.
(11) “Manufacture” means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle, or fill an original package with any alcoholic liquor.
(12) “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.
(13) “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 §11-16-2 of this code.
(14) “Original package” means any closed or sealed container or receptacle used for holding alcoholic liquor.
(15) “Person” means an individual, firm, partnership, limited partnership, corporation, or voluntary association.
(16) “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.
(17) “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 premise 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 not include a facility constructed primarily for the use of a Division I, II, or III college or university 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, II, or III sports stadium which holds a special license to sell wine pursuant to the provisions of §60-8-3 of this code, 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.
(18) “Sale” means any transfer, exchange, or barter in any manner or by any means, for a consideration, and shall include all sales made by a principal, proprietor, agent, or employee.
(19) “Selling” includes solicitation or receipt of orders; possession for sale; and possession with intent to sell.
(20) “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.
(21) “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.
(22) “Wine” means any alcoholic beverage obtained by the fermentation of the natural content of fruits, or other agricultural products, containing sugar.
(23) “Winery” means an establishment where wine is manufactured or in any way prepared.
“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 §60-8-3 of this
code, 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.
“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
Adopted
Rejected