ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2451
(By Mr. Speaker, Mr. Chambers, and Delegates
Gallagher, Brown and Houvouras)
(Originating in the House Committee on the Judiciary)
[April 1, l993]
A BILL to amend and reenact sections six, thirteen and seventeen,
article sixteen, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to West Virginia brewpubs and units of sale;
barrel tax and brewpub labeling contracts.
Be it enacted by the Legislature of West Virginia:
That sections six, thirteen and seventeen, article sixteen,
chapter eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-6. License in one capacity only; no connection between
different licensees; when brewer may act as
distributor; credit and rebates proscribed; brewpub.
(a) No person shall be licensed in more than one capacity
under the terms of this article, and there shall be no connection
whatsoever between any retailer or distributor or brewer, and no
person shall be interested directly or indirectly through theownership of corporate stock, membership in a partnership, or in
any other way in the business of a retailer, if such person is
at the same time interested in the business of a brewer or
distributor. A brewer whose place of brewing or manufacture is
located within the state of West Virginia may act as distributor
of his own product from such brewery, place of manufacture or
bottling, but must have a distributor's license for distribution
from a place other than the place of brewing or manufacture. A
resident brewer or distributor may sell to a consumer for
personal use and not for resale, draught beer in quantities of
one eighth, one gallon, one-fourth and one-half barrels in the
original containers. Additionally, a brewpub may enter into a
contract arrangement for private labeling of the brewpubs'
product so long as the actual retail sale of the nonintoxicating
beer is restricted to the brewpub premises.
(b) It shall be unlawful for any brewer, manufacturer or
distributor to assist any retailer or for any retailer to accept
assistance from any brewer, manufacturer or distributor any gifts
or loans or forebearance of money or property of any kind, nature
or description, or other thing of value or by the giving of any
rebates or discounts of any kind whatsoever except as may be
permitted by rule, regulation, or order promulgated by the
commissioner in accordance with this article.
Notwithstanding paragraphs (a) and (b) above, a brewpub may
manufacture and offer for retail sale nonintoxicating beer so
long as the sale of the nonintoxicating beer is limited to the
brewpub premises.
§11-16-13. Barrel tax on nonintoxicating beer.
(a) There is hereby levied and imposed, in addition to the
license taxes provided for in this article, a tax of five dollars
and fifty cents on each barrel of thirty-one gallons and in like
ratio on each part barrel of nonintoxicating beer manufactured in
this state for sale within this state, whether contained or sold
in barrels, bottles or other containers, and a like tax is hereby
levied and imposed upon all nonintoxicating beer manufactured
outside of this state and brought into this state for sale within
this state; but no nonintoxicating beer manufactured, sold or
distributed in this state is subject to more than one barrel tax.
The brewer manufacturing or producing nonintoxicating beer within
this state for sale within this state shall pay the barrel tax on
such nonintoxicating beer, and, except as provided otherwise, the
distributor who is the original consignee of nonintoxicating beer
manufactured or produced outside of this state, or who brings
such nonintoxicating beer into this state, shall pay the barrel
tax on such nonintoxicating beer manufactured or produced outside
of this state:
Provided,
That the barrel tax imposed by this
section shall not apply to nonintoxicating beer manufactured by
a brewpub.
(b) On or before the tenth day of each month during the
license period, every brewer or operator of a brewpub who
manufactures or produces nonintoxicating beer within this state
shall file a report in writing, under oath, to the tax
commissioner, in the form prescribed by the tax commissioner,
stating its total estimated sales, or in the case of a brewpub,
its total estimated production of nonintoxicating beer within
this state during that month, and at the same time shall pay thetax levied by this article on such estimated monthly sales or
production. On or before the tenth day of each month during the
license period, every distributor who is the original consignee
of nonintoxicating beer manufactured or produced outside this
state or who brings such beer into this state for sale shall file
a report in writing, under oath, to the tax commissioner, in the
form prescribed by the tax commissioner, stating its total
estimated purchases of such nonintoxicating beer during that
month, and at the same time shall pay the tax thereon levied by
this article for such estimated monthly purchase:
Provided,
That
the tax commissioner may allow, or require, a brewer who
manufactures or produces nonintoxicating beer outside this state
to file the required report and pay the required tax on behalf of
its distributor or distributors. Any brewer or distributor or
operator of a brewpub who files a report under this subsection
may adjust its monthly estimated sales or purchases or production
report or reports by filing amended reports by the twenty-fifth
day of the reporting month.
(c) Every brewer or distributor or operator of a brewpub who
files a report under subsection (b) of this section shall file a
final monthly report of said sales or purchases or production, in
a form and at a time prescribed by the tax commissioner, stating
actual nonintoxicating beer sales, purchases, or production and
other information which the tax commissioner may require, and
shall include a remittance for any barrel tax owed for actual
sales or purchases or production made in excess of the amount
estimated for that month.
(d) Any brewer or distributor or operator of a brewpub whofiles a report pursuant to subsection (b) of this section
reflecting an underestimation of twenty-five percent or more of
actual sales or purchases or production of nonintoxicating beer
as shown by the report filed pursuant to subsection (c) of this
section shall be assessed a penalty of one percent of the total
taxes due in such prior month.
(e) Brewers and distributors and operators of brewpubs shall
keep all records which relate to the sale or purchase in this
state of nonintoxicating beer for a period of three years unless
written approval for earlier disposal is granted by the tax
commissioner.
(f) Brewpubs shall keep such records as required by the
federal government and may, in lieu of the recordkeeping and
reporting requirements contained in subsections (a) through (e)
of this section, file copies of the federal reports
contemporaneously with the tax commissioner at the time of such
filings with the federal government. The filing of duplicate
copies of the federal reports with the state tax commissioner
shall be deemed as compliance with subsections (a) through (e) of
this section.
§11-16-17. Container labeling.
It shall be unlawful for any brewer, brewpub, manufacturer,
distributor or retailer to have affixed upon any beer, ale or
other malt beverage or malt cooler container, sold or for sale
in this state, a label bearing any design, picture or wording,
indicating that the contents of the container are brewed or
manufactured for one particular distributor or retailer or group
of retailers, or use any trademark other than that of a licensedbrewer or manufacturer:
Provided,
That a brewpub may enter into
a contract agreement for private labeling of the brewpubs'
product so long as the actual retail sale of the nonintoxicating
beer is restricted to the brewpub premises.