H. B. 2645
(By Delegates Moore and Mezzatesta)
[Introduced March 19, 1993; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact sections two, four, seven, eight,
nine, ten, eleven, twelve, thirteen, fourteen and fifteen,
article three-a, chapter sixty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
further amend said article three-a by adding thereto a new
section, designated section seven-a, relating to the
issuance of permanent retail liquor licenses for a fee, to
any current holder of a retail license of limited duration
that elects to convert to a permanent license within ninety
days from the effective date of this bill or ninety days
from the issuance of the license of limited duration,
whichever is later; providing definitions; clarifying that
the bidding process is only for license of limited duration
allowing Class A and Class AA licenses to be divided into
two or more licenses.
Be it enacted by the Legislature of West Virginia:
That sections two, four, seven, eight, nine, ten, eleven,twelve, thirteen, fourteen and fifteen, article three-a, chapter
sixty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that said
article three-a be further amended by adding thereto a new
section, designated seven-a, all to read as follows:
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-2. Legislative findings and declarations; legislative
purpose.
(a) The Legislature hereby finds and declares that the sale
of liquor at retail should no longer be by the state, but rather
by retail licensees; that there is a need for the state to
control the wholesale sales of liquor; that the health and
welfare of the citizens of this state will be adequately
protected by the licensing and control of such retail licensees;
that the sale of liquor through retail licensees will satisfy
reasonable consumer concerns of availability and price; and that
the operation and efficiency of state government will be improved
by removing the state from the retail sale of liquor and
permitting sales of liquor by retail licensees under licenses
issued by the state together with strict enforcement of laws and
rules relating to the sale of liquor.
(b) The Legislature further finds and declares that the
stability and success of the retail liquor industry will be
improved by allowing retail licensees to purchase permanent
licenses; that the employees employed at the retail outlets will
have greater job security and that the citizens of the state willbenefit from constructive use of the revenue collected from the
additional fees charged for permanent licenses.
(b) (c) It is the purpose of the Legislature in providing
for the retail sale of liquor to:
(1) Continue revenue to the state from the wholesale sale of
liquor, by requiring all retail licensees to purchase all liquor
(other than wine) from the commissioner and by further requiring
all private clubs licensed under the provisions of article seven
of this chapter to purchase all liquor (other than wine) from
retail licensees;
(2) Provide a system of controls, through limitations on the
numbers of retail outlets and application of the police power of
the state, to discourage the intemperate use of liquor;
(3) Preserve and continue the tax base of counties and
municipalities derived from the retail sale of liquor; and
(4) Obtain for the state financial gain from the issuance of
retail licenses.
§60-3A-4. Definitions.
For the purpose of this article:
"Applicant" means any person who bids for a retail license,
or who seeks the commissioner's approval to purchase or otherwise
acquire a retail license from a retail licensee, in accordance
with the provisions of this article;
"Application" means the form prescribed by the commissioner
which must be filed with the commissioner by any person bidding
for a retail license;
"Board" means the retail liquor licensing board created by
this article;
"Class A retail license" means a retail license of limited
duration permitting the retail sale of liquor at more than one
retail outlet;
"Class B retail license" means a retail license of limited
duration permitting the sale of liquor at only one retail outlet;
"Class AA retail license" means a Class A retail license of
limited duration that has been converted, pursuant to section
seven-a of this article, to a Class AA retail license of
permanent duration permitting the retail sale of liquor at more
than one retail outlet;
"Class BB retail license" means a Class B retail license of
limited duration that has been converted, pursuant to section
seven-a of this article, to a Class BB retail license of
permanent duration permitting the retail sale of liquor at only
one retail outlet;
"Code" means the code of West Virginia, one thousand nine
hundred thirty-one, as amended;
"Designated areas" means one or more geographic areas within
a market zone designated as such by the board;
"Executive officer" means the president of an applicant or
retail licensee, any vice president of an applicant or retail
licensee in charge of a principal business unit or division, or
any other officer of an applicant or retail licensee who performs
a policy-making function;
"Liquor" means alcoholic liquor as defined in section five,
article one of this chapter, and shall also include both wine and
fortified wines as those terms are defined in section two,
article eight of this chapter;
"Market zone" means a geographic area designated as such by
the board for the purpose of issuing retail licenses;
"Retail license" means a license issued under the provisions
of this article permitting the sale of liquor at retail;
"Retail licensee" means the holder of a retail license; and
"Retail outlet" means a specific location where liquor may
be lawfully sold by a retail licensee under the provisions of
this article.
§60-3A-7. Market zones; Class A and Class B retail licenses.
(a) The board shall determine the number of and establish
market zones for the retail sale of liquor within this state.
For each market zone so established, the commissioner shall be
authorized to issue one Class A retail license of limited
duration and one or more Class B retail licenses of limited
duration which may be converted to Class AA or Class BB retail
licenses of permanent duration pursuant to section seven-a of
this article. Each Class A retail license of limited duration
shall permit the holder thereof to operate such the number of
retail outlets as the board shall have authorized for that market
zone. The number of Class B retail licenses of limited duration
to be issued by the commissioner within each market zone shall
not exceed fifty percent of the number of retail outletsauthorized for the Class A retail license of limited duration for
such the market zone:
Provided,
That in a market zone where the
number of retail outlets authorized under the Class A retail
license of limited duration is an odd number, the number of Class
B retail licenses of limited duration which may be issued in such
the market zone shall be rounded up to the next highest whole
number following that number which is equal to fifty percent of
the number of retail outlets authorized under such the Class A
retail license of limited duration.
(b) If the board determines that a market zone is not suited
for the issuance of a Class A retail license of limited duration,
then only Class B retail licenses of limited duration may be
authorized for such the market zone and the board shall determine
the maximum number of Class B retail licenses of limited duration
which may be issued for such the market zone.
(c) When authorizing Class B retail licenses of limited
duration for a market zone, the board may create one or more
designated areas within such the market zone and authorize one
Class B retail license of limited duration for each such
designated area. For each such market zone, the commissioner may
issue additional Class B retail licenses of limited duration for
retail outlets to be located outside any such designated area,
but the number of such additional Class B retail licenses of
limited duration, when added to the total number of Class B
retail licenses of limited duration issued for all designated
areas within the market zone, shall not exceed the maximum numberof Class B retail licenses of limited duration permitted under
subsection (a) of this section for that market zone.
(d) A person may hold one or more Class A retail licenses of
limited duration or Class AA retail licenses of permanent
duration and one or more Class B retail licenses of limited
duration or Class BB retail licenses of permanent duration, but
for the same market zone no a person shall not hold a Class A
retail license of limited duration or Class AA retail license of
permanent duration and a Class B retail license of limited
duration or Class BB retail license of permanent duration, or
more than one Class B retail license of limited duration or Class
BB retail license of permanent duration.
§60-3A-7a. Class AA and Class BB retail licenses.
(a) Any Class A license holder who is in good standing under
the provisions of this article, may elect to convert the Class A
license of limited duration to a Class AA license of permanent
duration within ninety days from the effective date of this
section, or within ninety days from issuance of the Class A
license of limited duration, whichever is later, by submitting
written notice containing the following information to the
commissioner:
(1) A copy of the Class A license of limited duration;
(2) A sworn statement that the Class A license of limited
duration is not currently suspended under section twenty-seven of
this article;
(3) A sworn statement that the Class A license of limitedduration has not been revoked under section twenty-seven of this
article; and
(4) A sworn statement that the license holder elects to
convert the Class A license of limited duration to a Class AA
license of permanent duration.
(b) Any Class B license holder who is in good standing under
the provisions of this article, may elect to convert the Class B
license of limited duration to a Class BB license of permanent
duration within ninety days from the effective date of this
section, or within ninety days from issuance of the Class B
license of limited duration, whichever is later, by submitting
written notice containing the following information to the
commissioner:
(1) A copy of the Class B license of limited duration;
(2) A sworn statement that the Class B license of limited
duration is not currently suspended under section twenty-seven of
this article;
(3) A sworn statement that the Class B license of limited
duration has not been revoked under section twenty-seven of this
article; and
(4) A sworn statement that the license holder elects to
convert the Class B license of limited duration to a Class BB
license of permanent duration.
(c) From the date of receipt of the written notice of the
commissioner, an additional retail license fee shall be imposed
upon Class AA and Class BB retail licenses. The additional feeshall be two percent of the retail licensee's purchase price for
liquor charged by the commissioner which shall be added to and
collected with the purchase price paid by the retail licensee at
the time of purchase.
§60-3A-8. Class A or Class B retail license application
requirements; Class A or Class B retail licensee
qualifications.
(a) Prior to or simultaneously with the submission of a bid
for a Class A or Class B retail license, each applicant shall
file an application with the commissioner, stating under oath the
following:
(1) If the applicant is an individual, his or her name and
residence address;
(2) If the applicant is a corporation, limited partnership,
partnership or association, the name and business address of such
applicant; the state of its incorporation or organization; the
names and residence addresses of each executive officer and
director or general partner of such entity; and the names and
residence addresses of any person owning, directly or indirectly,
at least twenty percent of the outstanding stock of or
partnership interests in such the applicant; and
(3) That the applicant has never been convicted in this
state of any felony or other crime involving moral turpitude or
convicted of any felony in this or any other state court or any
federal court for a violation of any state or federal liquor law,
and if the applicant is a corporation, limited partnership,partnership or association, that none of its executive officers,
directors or general partners, or any person owning, directly or
indirectly, at least twenty percent of the outstanding stock of
or partnership interests in such the applicant, has been so
convicted.
(b) An applicant shall provide the commissioner any such
additional information as the commissioner may request.
(c) Whenever a change occurs in any information provided to
the commissioner, such the change shall immediately be reported
to the commissioner in the same manner as originally provided.
(d) The commissioner shall disqualify each bid submitted by
an applicant under section ten of this article, and no applicant
shall be issued or eligible to hold a retail license under this
article, if:
(1) The applicant has been convicted in this state of any
felony or other crime involving moral turpitude or convicted of
any felony in this or any other state court or any federal court
for a violation of any state or federal liquor law; or
(2) Any executive officer, director or general partner of
the applicant, or any person owning, directly or indirectly, at
least twenty percent of the outstanding stock of or partnership
interests in the applicant, has been convicted in this state of
any felony or other crime involving moral turpitude or convicted
of any felony in this or any other state court or any federal
court for a violation of any state or federal liquor law.
(e) Class AA or Class BB licenses shall be obtained throughthe election process set forth in section seven-a of this
article, and only after a Class A or Class B license has been
issued under the competitive bid process contained in this
article.
§60-3A-9. Investigation of applicants for Class A or Class B
retail license; notification to applicants approving or
denying application; general provisions relating to
licensing.
(a) Upon receipt of an application for a Class A or Class B
retail license of limited duration and such any supplemental
information as the commissioner may require, the commissioner may
conduct such an investigation of an applicant as deemed necessary
or desirable.
(b) Upon the completion of any investigation of an
applicant, the commissioner shall inform such the applicant in
writing whether the application has been approved or denied, and
shall post a copy of the decision in the commissioner's office.
(c) When an application for a Class A or Class B license of
limited duration is denied, the commissioner shall provide the
applicant the reasons for the denial, including specific findings
of fact, and the applicant shall be entitled to a hearing before
the commissioner if a hearing is requested within five days of
the decision. Any such hearing Hearings shall be held as
specified in section twenty-eight of this article, but the
decision after hearing shall, notwithstanding the provisions of
section twenty-eight, be final and binding and not subject tojudicial review.
(d) An applicant shall provide all information required by
this article and satisfy all requests for information pertaining
to qualification and in the form specified by the commissioner.
By filing an application for a Class A or Class B license of
limited duration, an applicant shall waive liability for any
damages resulting from any disclosure or publication in any
manner of any material or information acquired during inquiries,
investigations or hearings.
§60-3A-10. Class A or Class B retail license bidding procedure.
(a) The issuance of Class A or Class B retail licenses of
limited duration shall be based on sealed competitive bids in
accordance with the provisions of this section. Class AA or
Class BB licenses shall be obtained through the election process
set forth in section seven-a of this article, and only after a
Class A or Class B license has been issued under the competitive
bid process contained in this article. Bids for the issuance of
Class A or Class B retail licenses of limited duration shall be
obtained by public notice published as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such the publication shall be each market zone within which a
retail outlet shall be located. The second publication of such
the notice must appear more than ninety days next preceding the
final day for submitting bids.
(b) Each bid shall indicate the market zone for which theClass A or Class B retail license of limited duration is sought,
whether the bid is for a Class A retail license of limited
duration or Class B retail license of limited duration, and, if
the board has created one or more designated areas for such the
market zone, whether the bid is for the Class B retail license of
limited duration to be issued for any such designated area. No
bid shall be altered or withdrawn after the appointed hour for
the opening of the bids. Each Class A or Class B retail license
of limited duration shall be awarded to the highest bidder. In
market zones where two or more Class B retail licenses of limited
duration are authorized (other than for a designated area or
areas), such the licenses shall be awarded to those persons
submitting the highest bids. No A bid shall not be considered
unless the bond required under section eleven of this article is
submitted to the commissioner. All bids for a Class A or Class
B retail license of limited duration may be rejected by the board
if the board determines that the highest bid is inadequate, in
which event the commissioner shall begin anew the bidding process
for that Class A or Class B retail license of limited duration.
(c) Each person desiring to submit a bid must file the same
with the commissioner prior to the specified date and hour for
the bid openings. The failure to deliver or the nonreceipt of a
bid prior to the appointed date and hour shall constitute
sufficient reason for the rejection of a bid. After the award of
the Class A or Class B retail license of limited duration, the
commissioner shall indicate upon the successful bid that it wasthe successful bid. Thereafter, a copy of the bid and the
bidder's application shall be maintained as a public record,
shall be open to public inspection in the commissioner's office
and shall not be destroyed without the written consent of the
legislative auditor.
(d) Prior to the advertisement for bids for a Class A or
Class B retail license of limited duration, the commissioner
shall determine whether the current lessor for any existing state
liquor store or stores within the applicable market zone or
designated area will agree to accept the eventual Class B retail
licensee of limited duration as lessee for the remaining term of
the lease. Should such the lessor agree to accept the eventual
Class B retail licensee of limited duration, such the retail
licensee shall have the option to assume such the lease. In
market zones where there are two or more Class B retail licensees
of limited duration, the retail licensee who or which submitted
the highest bid shall have the option to assume such the lease
and, if such the retail licensee does not assume such the lease,
then the retail licensee who or which submitted the next highest
bid for a retail license in such the market zone shall have the
option to assume such the lease.
(e) Prior to the issuance of the Class A or Class B retail
license of limited duration to the successful bidder, the bid
price and the annual retail license fee, as specified in section
twelve of this article, shall be paid to the commissioner by
money order, certified check or cashier's check. All Class A orClass B retail licenses of limited duration shall be signed by
the commissioner in the name of the state.
(f) If the successful bidder fails to pay to the
commissioner the bid price and the annual retail license fee, at
the time specified by the commissioner, the bond provided for in
section eleven of this article shall be forfeited and such the
bidder shall not be issued the Class A or Class B retail license
of limited duration. The commissioner shall then issue the Class
A or Class B retail license of limited duration to the next
highest bidder for such the retail license or reject all bids and
start anew the bidding procedure for such the retail license.
§60-3A-11. Bonding requirements.
Each applicant submitting a bid under section ten of this
article shall furnish to the commissioner a bond at the time of
bidding, which bond shall guarantee the payment of twenty-five
percent of the price bid for the Class A or Class B retail
license of limited duration. The bond required by this section
shall be furnished in cash or negotiable securities or shall be
a surety bond issued by a surety company authorized to do
business with the state or an irrevocable letter of credit issued
by a financial institution acceptable to the commissioner. If
furnished in cash or negotiable securities, the principal shall
be deposited without restriction in the state treasurer's office
and credited to the commissioner, but any income shall inure to
the benefit of the applicant. The bond shall be returned to an
applicant following the bidding if such the applicant is not thesuccessful bidder for the Class A or Class B retail license of
limited duration, and, if an applicant is the successful bidder,
the bond shall be released after issuance of the Class A or Class
B retail license of limited duration.
§60-3A-12. Annual retail license fee; expiration and renewal of
retail licenses.
(a) The annual retail license period shall be from the first
day of July to the thirtieth day of June of the following year.
The annual retail license fee for a Class A or Class AA retail
license shall be the sum obtained by multiplying the number of
retail outlets operated by the retail licensee in the market zone
to which such each Class A or Class AA retail license applies by
one thousand five hundred dollars. The annual retail license fee
for a Class B or Class BB retail license shall be five hundred
dollars. The annual retail license fee for the initial year of
issuance shall be prorated based on the number of days remaining
between the date of issuance and the following thirtieth day of
June.
(b) All retail licenses shall expire on the thirtieth day of
June of each year and may be renewed only upon the submission to
the commissioner of the same information required for the
issuance of the Class A or Class B retail license licenses of
limited duration and such the additional information as may be
requested by the commissioner on such the forms and by such the
date as may be prescribed by the commissioner, together with the
payment to the commissioner of the applicable annual retaillicense fee required under this section.
(c) No person may sell liquor at any retail outlet if the
retail license applicable to such the outlet has been suspended
or revoked, or has expired.
(d) All Class A or Class B retail licenses issued or renewed
and not converted to Class AA or Class BB retail licenses under
the provisions of this article shall expire and be of no further
force or effect as of the first day of July, in the year two
thousand, prior to which time new Class A or Class B retail
licenses of limited duration shall be issued by following the
bidding and other procedures set forth herein for the initial
issuance of Class A or Class B retail licenses of limited
duration.
§60-3A-13. Annual reports.
On or before the thirty-first day of December, one thousand
nine hundred ninety, and each successive year thereafter, the
commissioner shall submit to the joint committee on government
and finance an annual report focused upon subjects of interest
concerning retail alcohol sales and of the implementation of this
article, including, but not limited to, the total revenue earned
by the issuance of all retail licenses, the location of each
retail outlet and the names of all applicants for retail
franchises.
§60-3A-14. Sale, assignment or transfer of retail license.
(a) No person may purchase or otherwise acquire a retail
license unless the commissioner has first approved of such theperson's qualifications to hold a retail license, which
qualifications shall be the same as those required under section
eight of this article.
(b) No person may sell, assign or otherwise transfer a
retail license without the prior written approval of the
commissioner. For purposes of this section, the merger of a
retail licensee or the sale of more than fifty percent of the
outstanding stock of or partnership interests in the retail
licensee shall be deemed to be a sale, assignment or transfer of
a retail license under this section.
(c) Any person who holds a Class A or Class AA retail
license that permits the retail sale of liquor at more than one
retail outlet within a particular market zone, may sell, assign
or otherwise transfer one or more authorized locations, upon
prior written approval of the commissioner, thereby dividing the
Class A or Class AA license into two or more Class A or Class AA
license. Upon completion of such sale, assignment or transfer,
each licensee shall be bound and subject to the provisions of
this article three-a.
§60-3A-15. Surrender of retail license.
Any retail licensee may surrender a retail license to the
commissioner at any time. The commissioner shall then proceed to
reissue the retail license as a Class A or Class B retail license
of limited duration by following the bidding and other procedures
set forth herein for the initial issuance of a Class A or Class
B retail license of limited duration.
NOTE: The purpose of this bill is to allow license holders
of retail liquor licenses of limited duration to elect within
ninety days from the effective date of this bill, or ninety days
from the issuance of a retail license of limited duration,
whichever is later, to purchase permanent retail licenses from
the state by paying an additional fee which shall be added to the
cost of each bottle of liquor purchased from the state, establish
long-term stability for the owners of retail liquor
establishments, and job security for employees of retail liquor
establishments, to allow Class A and Class AA license holders to
sell from one or more locations and divide Class A or Class AA
licenses into two or more licenses.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§60-3A-7a is new; therefore, strike-throughs and
underscoring have been omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
