Introduced Version
House Bill 2946 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2946
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 26, 1999; referred to the
Committee on Finance.]
A BILL to repeal section five-a, article one, chapter sixty of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal article three of said
chapter sixty; to amend and reenact sections four and five,
article one of said chapter sixty; to further amend said
article one by adding thereto three new sections, designated
sections eight, nine and ten; to amend and reenact sections
fourteen and fifteen, article two of said chapter sixty; to
further amend said article two by adding thereto five new
sections, designated sections twenty-two, twenty-three,
twenty-four, twenty-five, and twenty-six; to amend and
reenact sections two and seventeen, article three-a of said
chapter sixty; and to further amend said chapter sixty by
adding thereto a new article, designated article three, all
relating generally to regulating the manufacture and sale of intoxicating liquors within this state, and as to such:
Providing that the state will no longer operate a liquor
warehouse or make sales of liquor to retail licensees;
requiring all sales to be regulated by alcohol beverage
control commissioner; defining certain terms used in alcohol
beverage control act; prohibiting sales to certain persons;
requiring that all sales be in sealed packages, bearing
seals and labels as required by commissioner, except as
otherwise expressly provided in alcohol beverage control
act; requiring all bottles and other containers to bear
manufacturer's label; giving commissioner authority to
grant, suspend and revoke licenses issued under alcohol
beverage control act; requiring commissioner to regulate
advertising; giving designated employees of commissioner
authority to make arrests for violation of alcohol beverage
control act; specifying penalty for resisting arrest or
assaulting employee so designated; requiring representations
by sellers of quality and quantity and periodic analysis of
products; continuing commissioner's operating fund and
limitations on excessive warehouse inventory; continuing
existing rules for commissioner's handling and depositing of
monies and misdemeanor penalty for failure to promptly remit
certain monies; requiring closure and disposition of state
liquor by specified date; enacting the state wholesale liquor license act and, as to such: providing a short title;
making legislative findings and declaration; specifying
legislative purpose; providing rules for application and
construction of act; defining certain terms; specifying
certain duties and powers of commissioner; providing for
issuance of wholesale distributor licenses, nonresident
wholesale distributor licenses, manufacturer licenses, sales
representative licenses, carrier licenses and, as to each,
establishing license fees, conditions, restrictions and
authority; providing for application for licenses and
renewal applications; specifying required content of
applications; requiring certain applicants to furnish
continuous surety bonds of specified minimum amount or that
set by commissioner; allowing commissioner to require other
applicants to file bonds and to fix amounts thereof;
providing procedures for issuance, nonrenewal, revocation or
suspension of licenses and allowing commissioner to set
maximums and require other applicants to surety bonds;
requiring registration of liquor brand labels and payment of
registration fee; requiring that all sales by wholesalers be
in sealed labeled packages; prohibiting exclusive
franchises; specifying unlawful acts; providing for
imposition of other criminal penalties; requiring wholesaler
distributors, carriers, retailers and private clubs to keep certain records; imposing a privilege tax on wholesale sales
and purchases of liquor to be collected by tax commissioner;
providing for collected tax to be held in trust for the
state; making retailers liable for tax they refuse, neglect
or fail to pay; making officers and certain owners of
wholesale distributors and nonresident wholesale
distributors personally liable for tax not paid over to tax
commissioner, including additions, penalties and interest;
providing for filing of tax returns and payment of tax;
providing rules regarding accounting periods, method of
accounting, extensions of time for filing returns and paying
tax, refund or credit of tax erroneously paid or illegally
collected, signing of returns and other documents, when
other reports are required, records to be kept; making
administration and collection of tax subject to tax
procedure and administration act and to tax crimes and
penalties act; allowing records to be inspected or audited
by alcohol beverage control commissioner or by tax
commissioner, or by both; providing for sharing of
information as exception to confidentiality rules, with
unauthorized disclosure be punishable under current law;
providing for disposition of fees and taxes collected;
providing for severability of new act; requiring retailers
of liquor to purchase liquor from licensed wholesale distributors or licensed nonresident wholesale distributors
or licensed manufacturing operations located in this state;
and providing for the sale of liquor from licensed
distributors.
Be it enacted by the Legislature of West Virginia:
That section five-a, article one, chapter sixty of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that article three of said chapter sixty be
repealed; that sections four and five, article one of said
chapter sixty be amended and reenacted; that said article one be
further amended by adding thereto three new sections, designated
sections eight, nine and ten; that sections fourteen and fifteen,
article two of said chapter sixty be amended and reenacted; that
said article two be further amended by adding thereto five
new sections, designated sections twenty-two, twenty-three,
twenty-four, twenty-five, and twenty-six; that sections two and
seventeen, article three-a of said chapter sixty be amended and
reenacted; and that said chapter sixty be further amended by
adding thereto a new article, designated article three, all to
read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§60-1-4. Sales to be regulated by West Virginia alcohol beverage
control commissioner.
Alcoholic liquors shall be sold at wholesale and retail in this state only by or through in accordance with the provisions
of this chapter and rules promulgated by the West Virginia
alcohol beverage control commissioner in the manner provided in
article three, chapter twenty-nine-a of this code. or retail
agencies established by him or any predecessor commissioners or
commission, except as authorized by articles seven and eight of
this chapter
§60-1-5. Definitions.
For the purposes of this chapter:
(1) "Alcohol" shall mean means ethyl alcohol whatever its
origin and shall include synthetic ethyl alcohol but not include
ethyl or industrial alcohol, diluted or not diluted that has been
denatured alcohol or otherwise rendered unfit for beverage
purposes.
(2) "Alcoholic liquor" or "liquor" includes alcohol, beer,
wine and spirits, and any liquid or solid containing alcohol
capable of being used as a beverage, by whatever name called,
containing alcohol but shall not include nonintoxicating beer.
(3) "Beer" shall mean 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" shall mean 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.
(4) "Brewery" means an establishment where beer is
manufactured or in any way prepared.
(5) "Commissioner" or "commission" means the West Virginia
alcohol beverage control commissioner.
(6) "Department" means the department of tax and revenue.
(7) "Distillery" means an establishment where alcoholic
liquor other than wine or beer is manufactured or in any way
prepared.
"Wine" shall mean any alcoholic beverage obtained by the
fermentation of the natural content of fruits, or other
agricultural products, containing sugar.
"Spirits" shall mean 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" shall include alcohol, beer, wine and
spirits, and any liquid or solid capable of being used as a
beverage, but shall not include nonintoxicating beer.
(8) "Farm winery" means an establishment where in any year
fifty thousand gallons or less of wine is manufactured
exclusively by natural fermentation from grapes, other fruit or
honey, with twenty-five percent of such raw products being produced by the owner of such farm winery on the premises of that
establishment, and no more than twenty-five percent of such
roduce originating from any source outside this state: Provided,
That a farm winery may include one off-farm location: Provided,
however, That the owner of a farm winery may provide to the
commissioner evidence, accompanied by written findings by the
West Virginia agriculture commissioner in support thereof, that
the owner has planted on the premises of the farm winery young
nonbearing fruit plants. The commissioner may grant permission
for one off-farm location in an amount equal to that reasonably
expected to be produced when the nonbearing fruit plants planted
on the farm winery come into full production. The length of time
of the permission to use an off-farm location shall be determined
by the commissioner after consultation with the agriculture
commissioner.
(9) "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.
(10)"Manufacture" means to distill, rectify, ferment, brew,
make, mix, concoct, process, blend, bottle, or fill an original
package with any alcoholic liquor.
(11) "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.
(12) "Original package" shall mean means any closed or
sealed container or receptacle used for holding alcoholic liquor.
(13) "Nonresident wholesaler of alcoholic liquor" means a
person who does not maintain an office or other place of business
in this state who is licensed by the commissioner to sell liquor
to wholesale distributors licensed under this article and to
retailers licensed under article three-a of this chapter.
(14) "Person" means an individual, firm, partnership,
limited partnership, limited liability company, corporation,
voluntary association, or any other group or combination acting
as a unit that is treated as a pass-through entity for income tax
purposes.
(15) "Primary source of supply" means, in the case of
domestic alcoholic liquor, the distiller, producer, owner of the
commodity at the time it becomes a marketable product, or
bottler, or the exclusive agent of any such person and, in the
case of alcoholic liquor imported into the United States, either
the foreign distiller, producer, owner of the commodity, bottler,
or the prime importer for, or the exclusive agent in the United
States of, the foreign distiller, producer, owner or bottler.
(16) "Public place" shall mean 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.
(17) "Sale" shall mean 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.
(18) "Selling" shall include includes, but is not limited
to, solicitation or receipt of orders; possession for sale; and
possession with intent to sell.
"Person" shall mean 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" shall mean 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" shall mean an establishment where beer is
manufactured or in any way prepared.
(19) "Spirits" means any alcoholic beverage obtained by
distillation and mixed with potable water and other substances in solution, and includes, but is not limited to, brandy, rum,
whiskey, cordials and gin.
(20) "Supplier of alcoholic liquor" means a vendor of
alcoholic liquor, a manufacturer of alcoholic liquor, or a
primary source of supply.
(21) "Vendor" means any person licensed by the commissioner
to sell alcoholic liquor in this state.
(22) "Warehouse" means a premise or place primarily
constructed, used, or provided with facilities for the storage in
transit or other temporary storage of alcoholic liquor or other
commodities or for the conduct of a warehousing business.
(23) "Wine" means any alcoholic beverage obtained by the
fermentation of the natural content of fruits, or other
agricultural products, containing sugar.
(24) "Winery" shall mean means an establishment where wine
is manufactured or in any way prepared.
"Distillery" shall mean an establishment where alcoholic
liquor other than wine or beer is manufactured or in any way
prepared.
"Public place" shall mean 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.
"State liquor store" shall mean 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" shall mean 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" shall mean the organization through which the
commission exercises powers imposed upon it by this chapter.
"Commissioner" or "commission" shall mean the West Virginia
alcohol beverage control commissioner.
"Intoxicated" shall mean having one's faculties impaired by
alcohol or other drugs to the point where physical or mental
control or both are markedly diminished.
§60-1-8. Sales to certain persons prohibited.
(a) Alcoholic liquors and nonintoxicating beer shall not be
sold, delivered or furnished to a person who is:
(1) Less than twenty-one years of age;
(2) Visibly intoxicated;
(3) Known to the individual making the sale to be an alcohol
abuser as defined in section eleven, article one-a, chapter
twenty-seven of this code;
(4) Known to the individual making the sale to be a drug
abuser as defined in section eleven, article one-a, chapter
twenty-seven of this code; or
(5) Known to the individual making the sale to be 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.
§60-1-9. Sale in sealed packages.
Except as otherwise expressly provided in this chapter,
alcoholic liquors shall be sold only in sealed packages, bearing
such seals and labels as the commissioner may require.
§60-1-10. Manufacturer's label.
A manufacturer of alcoholic liquor offered for sale in this state shall attach to each bottle or other container a special
label bearing an accurate description of the contents of the
bottle or other container in such form and detail as the
commissioner may require.
ARTICLE 2. ALCOHOL BEVERAGE CONTROL COMMISSIONER.
§60-2-14. Authority to grant, suspend and revoke licenses.
The commission commissioner shall have the authority to
grant, suspend and revoke licenses as provided in article four of
this chapter.
§60-2-15. Regulation of advertising.
The commission commissioner shall prescribe regulations
rules under chapter twenty-nine-a of this code governing the
advertising of alcoholic liquors in this state. The regulations
To the extent allowable under federal law, these rules shall
prohibit advertising that encourages intemperance, induces minors
to purchase, or tends to deceive or misrepresent.
§60-2-22. Authority of employees to make arrests; penalty for
resisting or assaulting employee; enforcement of chapter.
(a) An appointee or employee of the commissioner shall have
the authority of a peace officer, to arrest a person for an act
committed on or about the premises of any licensee under this
chapter, and in his or her presence, which amounts to a violation
of a provision of this chapter or disorderly conduct.
(b) The commissioner shall furnish his or her 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 commissioner while engaged in the
performance of his or her duties under this section 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 a regional 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) The commissioner is hereby vested, and such officers,
agents and employees of the commissioner as shall be designated
by the commissioner shall, upon being so designated, be vested,
with like power and authority to enforce the provisions of this
chapter and the criminal laws of the state relating thereto as
are vested in sheriffs of counties and members of the West
Virginia state police.
§60-2-23. Representations by sellers and analysis of liquors.
(a) The commissioner shall require with each delivery of
alcoholic liquors (1) to the commissioner, (2) to a wholesale
distributor licensed under article three of this chapter, or (3)
by a nonresident wholesale distributor licensed under article
three of this chapter to a person licensed under article three-a
of this chapter, a sworn statement that the goods are as represented, and do not contain any impure or deleterious matter.
(b) The commissioner shall by periodic chemical analysis
determine that liquors offered for sale by wholesaler
distributors and by nonresident wholesale distributors are pure,
potable, and not misrepresented.
§60-2-24. Operating fund continued; use; maximum amount.
(a) The operating fund of the commissioner, heretofore
created in the state treasury, is hereby continued and shall be
a revolving fund from which all operation and administration
expenses of the commissioner shall be paid.
(b) All moneys collected by the commissioner shall be
credited to the operating fund until that fund reaches an amount
sufficient for the current and routine requirements of the office
of the West Virginia alcohol beverage control commissioner. This
amount shall not be in excess of twenty million dollars.
§60-2-25. Regulations as to handling and depositing of moneys
collected; monthly remittances; penalty.
(a) The commissioner, with the approval of the state
treasurer, shall prescribe rules for the handling and depositing
of all moneys collected by the commissioner. All receipts
accruing to and available for the general revenue fund in excess
of the requirements of the operating fund and the license fee and
additional sales tax imposed by the provisions of this chapter
shall be remitted by the commissioner to the state treasury monthly within fifteen days next after the end of each calendar
month: Provided, That any rules or regulations in effect upon
enactment of this section shall remain in effect until modified
by the commissioner.
(b) If the commissioner fails to remit such moneys to the
state treasury within the time specified in accordance with the
provisions of this section, he shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined one thousand
dollars.
§60-2-26. State warehouse.
(a) As soon as practicable after the effective date of this
section, but no later than the first day of October, nineteen
hundred, ninety-nine, the commissioner shall close the state
alcoholic liquor warehouse and begin licensing persons to sell
alcoholic liquor at wholesale in this state to persons licensed
under article three-a of this chapter.
(b) The state liquor warehouse shall be sold by competitive
bid for no less than its fair market value, unless another state
agency wants to acquire the property. Fair market value shall be
determined by one or more certified commercial real estate
appraisers.
ARTICLE 3. WHOLESALE SALES OF ALCOHOLIC LIQUOR.
§60-3-1. Short title.
This article shall be known and may be cited as the "State Wholesale Liquor License Act."
§60-3-2. Legislative findings and declaration; legislative
purpose.
(a) Findings and declaration. -- The Legislature hereby
finds and declares that the sale of alcoholic liquor at wholesale
should no longer be by the state, but rather by wholesalers
licensed by the state; that the health and welfare of the
citizens of this state will be adequately protected by the
licensing and control of wholesalers; that the sale of alcoholic
liquor through licensed wholesalers to persons licensed under
article three-a of this chapter will satisfy reasonable consumer
concerns of availability; and that the operation and efficiency
of state government will be improved by removing the state from
the wholesale sale of alcoholic liquor and permitting sales of
alcoholic liquor by wholesalers under licenses issued by the
state together with strict enforcement of laws and rules relating
to the sale of alcoholic liquor.
(b) Purpose. -- It is the purpose of the Legislature in
providing for the wholesale sale of alcoholic liquor to continue
revenue to the state from the wholesale sale of alcoholic liquor
by:
(1) Requiring all wholesalers of alcoholic liquor to obtain
an annual license from the commissioner and pay a license fee;
(2) Requiring registration of all labels and imposing a registration fee;
(3) Requiring persons who promote or solicit purchases of
alcoholic liquor by persons licensed under this chapter to obtain
a license from the commissioner;
(4) Imposing a privilege tax on every wholesaler measured by
gross proceeds derived from selling alcoholic liquor to retailers
licensed under article three-a of this chapter, with the proceeds
of this tax to fund administration and enforcement of this
chapter and provide general revenue for this state.
§60-3-3. Application of article; exceptions; construction.
(a) Application. -- The provisions of this article shall
have general application to the manufacture and sale of alcoholic
liquor in this state.
(b) Exceptions. -- The provisions of this article do not
apply to:
(1) Sales of nonintoxicating beer that are regulated under
article sixteen, chapter eleven of this code.
(2) Purchases of wine, or sales of wine, by distributors of
wine licensed under article eight of this chapter.
(c) Construction.
(1) In the event of any inconsistency between any of the
provisions of this article and provisions of any other article of
this chapter or of this Code, the provisions of this article
shall prevail to the extent of any such inconsistency.
(2) To the extent the provisions of this chapter exclusive
of this article may be given application without creating an
inconsistency with the provisions of this article, the provisions
of this chapter, exclusive of this article, shall apply to the
same extent as if this article did not exist.
§60-3-4. Definitions.
The following words and phrases, when used in this article,
shall have the meanings given to them in this section unless the
context in which used clearly requires a different meaning:
(1) "Alcoholic liquor" includes alcohol, beer, wine and
spirits, and any liquid or solid containing alcohol capable of
being used as a beverage, but shall not include nonintoxicating
beer.
(2) "Commissioner" means the West Virginia alcohol beverage
control commissioner.
(3) "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.
(4) "Nonresident wholesale distributor of alcoholic liquor"
means a person who does not maintain an office or other place of
business in this state who is licensed by the commissioner to
sell liquor to wholesaler distributors licensed under this
article and to persons licensed under article three-a of this
chapter.
(5) "Person" means an individual, firm, partnership, limited
partnership, limited liability company, corporation, voluntary
association, or any other group or combination acting as a unit
that is treated as a pass-through entity for income tax purposes.
(6) "Primary source of supply" means, in the case of
domestic alcoholic liquor, the distiller, producer, owner of the
commodity at the time it becomes a marketable product, or
bottler, or the exclusive agent of any such person and, in the
case of alcoholic liquor imported into the United States, either
the foreign distiller, producer, owner of the commodity, bottler,
or the prime importer for, or the exclusive agent in the United
States of, the foreign distiller, producer, owner or bottler.
(7) "Supplier" means any manufacturer, producer, processor,
distributor or supplier of alcoholic liquor who sells or offers
to sell or solicits or negotiates the sale of alcoholic liquor to
any licensed West Virginia wholesaler.
(8) "Tax" includes within its meaning interest, additions to
tax and penalties.
(9) "Taxpayer" means any person liable for any tax,
interest, additions to tax or penalty under the provisions of
this article and any person claiming a refund of tax.
(10) "Wholesale distributor" means any person who maintains
a regular place of business within this state, who is engaged in
selling or distributing alcoholic liquor to retailers licensed under article three-a of this chapter.
§60-3-5. Duties and powers of commissioner; administrative rules.
(a) In addition to duties and powers elsewhere provided in
this chapter, the commissioner is authorized:
(1) To enforce the provisions of this article.
(2) To enter the premises of any licensee at reasonable
times for the purpose of inspecting the premises, and determining
the compliance of the licensee with the provisions of this
article and any rules promulgated by the commissioner.
(3) To promulgate reasonable rules as the commissioner deems
necessary for the execution and enforcement of the provisions of
this article, which may include, but shall not be limited to:
(A) The transport and sale of alcoholic liquor;
(B) Establishing standards of identity, quality and purity
to protect the public against alcoholic liquor containing
deleterious, harmful or impure substances or elements and against
spurious or imitation alcoholic liquor and alcoholic liquors
unfit for human consumption; and
(4) To issue subpoenas and subpoenas duces tecum for the
purpose of conducting hearings under the provisions of this
article, which subpoenas and subpoenas duces tecum shall be
issued in the time, for the fees, and shall be enforced in the
manner specified in section one, article five, chapter twenty- nine-a of this code with like effect as if said section one was set forth in extenso in this subdivision.
(b) The authority granted in subdivisions (a), (b) and (d)
of this section may also be exercised by the duly authorized or
designated agents of the commissioner.
(c) Except as may be in this article to the contrary, the
commissioner shall not have authority by rule or regulation or
otherwise to regulate markups, prices, discounts, allowances, or
other terms of sale at which alcoholic liquor may be purchased or
sold by manufacturer or wholesaler authorized to sell alcoholic
liquor to retail licensees or to change, nullify or vary the
terms of any agreement between a manufacturer and wholesaler or
between a manufacturer or wholesaler and a retail licensee, but
nothing herein shall be deemed to authorize or permit any
discriminatory practice prohibited by this article or legislative
rule promulgated by the commissioner.
(d) All rules promulgated by the commissioner pursuant to
this article shall be promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
§60-3-6. Wholesale distributor license.
(a) A wholesale distributor license shall authorize the
licensee to sell alcoholic liquor in barrels, bottles, or other
closed containers to persons licensed under article three-a of
this chapter.
(b) No person may be licensed as a wholesale distributor under this section unless that person maintains a regular place
of business within this state.
(c) An applicant for a wholesale distributor's license or
for renewal of such a license shall pay an annual fee of fifty
thousand dollars for each place in this state from which the
wholesale distributor conducts its wholesale business. This fee
shall be paid at the time the application or application for
renewal is filed with the commissioner.
(d) The term of the license issued under this section shall
be a period of twelve consecutive months, beginning the first day
of July and ending the next thirtieth day of June, unless the
license is sooner surrendered to, or suspended or revoked by, the
commissioner.
(e) When initial application is made after the thirty-first
day of July of the license year, the fee shall be prorated based
upon the number of months remaining in the license year.
(f) If the application or renewal application is denied, the
commissioner shall refund the application fee paid, less one
hundred dollars.
§60-3-7. Nonresident wholesaler distributor license.
(a) Any person licensed in the person's state of domicile as
an alcohol beverage manufacturer, importer or wholesaler may
apply to the commissioner for issuance of a license under this
section to direct ship alcoholic liquor to persons licensed under this article or article three-a of this chapter.
(b) An applicant for a nonresident wholesaler distributor
license or for renewal of such a license shall pay an annual fee
of one hundred thousand dollars. This fee shall be paid at the
time the application is filed with the commissioner.
(c) The term of the license issued under this section shall
be a period of twelve consecutive months, beginning the first day
of July and ending the next thirtieth day of June, unless the
license is sooner surrender to, or suspended or revoked by, the
commissioner.
(d) When initial application is made after the thirty-first
day of July of the license year, the fee shall be prorated based
upon the number of months remaining in the license year.
(e) If the application is denied, the commissioner shall
refund the application fee paid, less one hundred dollars.
(f) A person licensed under this section may ship directly
to persons licensed under this article or article three-a of this
chapter, in packages clearly marked "Alcohol Beverages, adult
signature (over 21 years of age) required." All shipments by a
nonresident wholesaler distributor into this state shall be made
in vehicles owned by the licensee or by a carrier licensed by the
commissioner. When the product is delivered, the person
physically delivering the product shall obtain an adult
signature.
(g) Nonresident wholesale distributors shall file invoices
for each shipment with the commissioner showing the sales price
of the product, including any shipping, handling or other charge,
to which shall be added the tax imposed by section thirty of this
article. The invoice or an attachment shall state how the
product was delivered and such other information as the
commissioner may require.
(h) Agreement to collect and pay over the tax imposed by
section thirty of this article shall be a condition precedent to
obtaining a license under this section. The signed application
is conclusive evidence of acceptance of this condition during the
period of the license.
(i) The alcohol beverage control commissioner shall adopt
rules, pursuant to chapter twenty-nine-a of this code, relative
to:
(1) The application procedures and form for the nonresident
wholesale distributor's license under this section.
(2) The signature form or other identification procedures to
be used by persons licensed under this section to ensure that the
alcoholic liquor shipped is received by a person licensed under
this article or article three-a of this chapter and signed for by
an individual who is twenty-one years of age or older.
(j) A person holding a license issued under this section who
ships alcoholic liquor to a person in this state who is not the holder of a license issued under this article or article three-a
of this chapter shall be grounds for permanent revocation of all
licenses issued to the person under this chapter.
§60-3-8. Alcoholic liquor manufacturers license.
(a) The manufacture of alcoholic liquor in this state shall
be licensed under rules promulgated by the commissioner, in the
manner prescribed in chapter twenty-nine-a of this code, and
under such terms as are not inconsistent with federal law or the
constitution and laws of this state.
(b) No alcoholic liquor manufactured in this state by any
manufacturer shall be sold or delivered in this state in any
manner that is inconsistent with the provisions of this chapter
or federal law. Except as otherwise expressly provided in this
chapter, liquor manufactured in this state may be sold to
wholesale distributors licensed under this article or to persons
licensed under article three-a of this chapter, or exported.
(c) An initial application to manufacture liquor in this
state shall be filed with the commissioner before manufacturing
of the liquor actually begins in this state. At the time the
application is filed, the applicant shall pay to the commissioner
a fee of one hundred thousand dollars for each place of
manufacturing located in this state.
(d) The term of the license issued under this section shall
be a period of twelve consecutive months, beginning the first day of July and ending the next thirtieth day of June, unless the
license is sooner surrendered to, or suspended or revoked by, the
commissioner.
(e) When initial application is made after the thirty-first
day of July of the license year, the fee shall be prorated based
upon the number of months remaining in the license year.
(f) If the application is denied, the commissioner shall
refund the application fee paid, less one hundred dollars.
§60-3-9. Sales representative license.
(a) No person shall solicit or facilitate sales of liquor
to, or purchases of liquor by, persons licensed under section six
of this article, or article three-a, seven or eight of this
chapter unless and until the person has a licensed issued under
this section.
(b) A representative's license shall allow the licensee to
solicit sales or purchases of liquor, or promote the sale or
purchase of liquor, from primary sources of supply by persons
licensed under this article or article three-a, seven or eight of
this chapter.
(c) An applicant for a sales representative's license or for
renewal of such a license shall pay an annual fee of ten thousand
dollars. This fee shall be paid at the time the application is
filed with the commissioner.
(d) The term of the license issued under this section shall be a period of twelve consecutive months, beginning the first day
of July and ending the next thirtieth day of June, unless the
license is sooner surrendered to, or suspended or revoked by, the
commissioner.
(e) When initial application is made after the thirty-first
day of July of the license year, the fee shall be prorated based
upon the number of months remaining in the license year.
(f) If the application is denied, the commissioner shall
refund the application fee paid, less twenty-five percent.
§60-3-10. Carrier license.
(a) No person shall transport alcoholic liquor within this
state that is owned by another unless the person has a licensed
issued under this section.
(b) A carrier license shall authorize the licensee to
transport and deliver alcoholic liquor in this state, or to pick
up alcoholic liquor from domestic alcoholic liquor manufacture
license holders for delivery outside this state.
(c) An applicant for a carrier's license or for renewal of
such a license shall pay an annual fee of fifteen thousand
dollars. This fee shall be paid at the time the application is
filed with the commissioner.
(d) The term of the license issued under this section shall
be a period of twelve consecutive months, beginning the first day
of July and ending the next thirtieth day of June, unless the license is sooner surrendered to, or suspended or revoked by, the
commissioner.
(e) When initial application is made after the thirty-first
day of July of the license year, the fee shall be prorated based
upon the number of months remaining in the license year.
(f) If the application is denied, the commissioner shall
refund the application fee paid, less twenty-five percent.
§60-3-11. Application for license.
(a) Any person desiring a license under this article shall
file a written application for a license with the commissioner.
The application shall state under oath:
(1) The entire legal name of the applicant.
(2) The trade name or doing business name, if any, of the
applicant.
(3) The physical address of the applicant and the
applicant's mailing address, if different.
(4) The address of the place of business for which the
license is desired, or other description that definitely locates
place of business; and that the place of business conforms to all
health and fire laws and regulations applicable thereto.
(5) The name of the owner of the premises upon which the
business is to be conducted, and, if the owner is not the
applicant, that the applicant is the bona fide lessee of the
business.
(6) That the business authorized by the license will be
carried on under the applicant's immediate supervision or
direction.
(7) That the applicant is a citizen of the United States and
is not less than twenty-one years of age;
(8) That the applicant has not been convicted of a felony or
other crime involving moral turpitude within the three years next
preceding the filing of the application; and that the applicant
has not, within the two years next preceding the filing of the
application, been convicted of violating the alcoholic liquor
laws of any state or of the United States;
(9) That the applicant has not during the five years next
preceding the date of said application had any license revoked
under this chapter or under the alcoholic liquor laws of any
other state;
(10) If the applicant is a firm, association, partnership,
limited liability company, the application shall state the
matters required in subdivisions (8), (9) and (10) of this
subsection, with respect to each of the members thereof, and each
of the members must meet all the requirements of those
subdivisions;
(11) If the applicant is a corporation, organized or
authorized to do business in this state, the application shall
state the matters required in subdivisions (8), (9) and (10)of this subsection, with respect to (A) each of the officers and
directors thereof, (B) each stockholder owning twenty percent or
more of the stock of the corporation, and (C) each person who
will conduct and or manage the licensed premises for the
corporation. Each of these individuals must meet all the
requirements provided in subdivisions (8), (9) and (10) of this
subsection; and
(12) Any other information that the commissioner may
reasonably require.
(b) The foregoing statements required in an application
shall constitute mandatory prerequisites for the issuance of a
license.
(c) The application shall be verified:
(1) By the owner, if the applicant is an individual;
(2) By each member of the firm, if the applicant is a firm;
(3) By each partner, if the applicant is a partnership;
(4) By each member of a limited liability company if the
applicant is a limited liability company;
(5) By each member of the governing board, if the applicant
is an association; or
(6) By each officer and director, if the applicant is a
corporation.
§60-3-12. Surety bonds required; release of surety; new bond.
(a) The commissioner shall require an applicant for a wholesale distributor license and an applicant for a nonresident
wholesale distributors license to file a continuous surety bond
in an amount to be fixed by the commissioner, except that the
amount shall not be less than fifty thousand dollars.
(b) Upon completion of the filing of the continuous surety
bond, an annual notice of renewal shall only be required
thereafter.
(c) The surety must be a corporation authorized to sell
surety insurance in this State.
(d) The bond shall be conditioned upon faithful compliance
with the provisions of this article, including the filing of the
returns and payment of all taxes and fees prescribed by this
article.
(e) A surety bond shall be approved by the commissioner as
to sufficiency and by the attorney general as to form, and shall
indemnify the state against any loss arising from the failure of
the licensee to comply with the provisions of this article
including, but not limited to, the payment of any tax or fee
imposed by this article, for any cause whatever.
(f) Any surety on a bond furnished under this section shall
be relieved, released and discharged from all liability accruing
on the bond after the expiration of sixty days from the date the
surety shall have filed, by certified mail, with the commissioner
a written request to be discharged. Discharge shall not relieve, release or discharge the surety from liability already accrued,
or which shall accrue before the expiration of the sixty-day
period. Whenever any surety requests discharge as provided in
this section, it shall be the duty of the principal of the surety
bond to supply the commissioner with another bond.
§60-3-13. License issuance or refusal; terms of license.
(a) Upon receipt of the application, fee, and bond, if
required, the commissioner shall conduct such investigation as
the commissioner deems necessary to determine the accuracy of the
matters contained in the application. For the purposes of
conducting such investigation, the commissioner may withhold the
granting or refusal to grant a license for a period not to exceed
sixty days.
(b) If it appears that no false statement is contained in
the application and that the issuance of the license would not be
in conflict with any of the provisions of this chapter, the
commissioner shall issue the license, and if otherwise, the
commissioner shall refuse to issue the license.
(c) The commissioner shall refuse the license of any
applicant if the commissioner finds that the applicant is not a
suitable person or that the place of business of such applicant
is not a suitable place or that such applicant has not complied
with the provisions of this chapter. Upon refusal to issue such
license, the commissioner shall enter an order refusing the application, which refusal is final unless a hearing is requested
in accordance with the provisions of section fourteen of this
article. When the refusal becomes final, the commissioner shall
forthwith refund to the applicant his or her fees and bond
accompanying the application.
(d) A license issued under this article shall expire on the
thirtieth day of June next following the date it was issued.
(e) A license issued under this article may be renewed upon
the same showing as required for the issuance of the initial
license, together with payment of the applicable fee and the
filing of any bond required by this article.
(f) A license issued under this article shall not be
transferred to another person.
(g) The location of the premises to which the license
relates may be changed, with the prior written consent of the
commissioner, if the new location is such as would satisfy the
requirements of this article upon an initial application.
§60-3-14. Revocation or suspension of license; procedure upon
refusal, revocation or suspension.
(a) The commissioner may, on his or her own motion, or shall
on the sworn complaint of any person, conduct an investigation to
determine if any provisions of this article have been violated by
any licensee.
(b) The commissioner may suspend or revoke any licensee's license if the commissioner finds that the licensee has violated
any provision of this article, or if the commissioner finds the
existence of any ground on which a license could have been
refused, if such licensee were then applying for a license. If
the commissioner finds that a licensee has willfully violated any
provision of this article the commissioner shall revoke that
person's license under this article.
(c) Whenever any wholesale distributor or nonresident
wholesale distributor fails or refuses to keep the bond required
by section twelve of this article in effect, that wholesaler's
license shall be automatically suspended until such time as bond
required by section twelve is furnished to the commissioner, at
which time such suspension shall be vacated.
(d) Whenever the commissioner refuses to issue a license, or
suspends or revokes a license, the commissioner shall enter an
order to that effect, and cause a copy of the order to be served
in person or by certified mail, return receipt requested, on the
licensee or applicant.
(e) Any applicant or licensee, as the case may be, adversely
affected by the commissioner's order shall have a right to a
hearing thereon before the commissioner when demand in writing
for a hearing is served upon the commissioner within ten days
following the receipt by the applicant or licensee of the copy of
the commissioner's order.
(1) Service upon the commissioner of a written demand for a
hearing upon the commissioner's order shall operate to suspend
execution of that order, except when the order suspending a
license is issued under the provisions of subsection (b) of this
section.
(2) The person demanding the hearing shall give security for
the cost of the hearing, in such form and amount as the
commissioner may reasonably require.
(3) If the person demanding the hearing does not
substantially prevail in the hearing or upon judicial review
thereof as hereinafter provided, then the costs of the hearing
shall be assessed against that person by the commissioner and may
be collected by an action at law or other proper remedy.
(f) The commissioner shall immediately set a date for the
hearing and give the person demanding the hearing at least ten
days written notice of the date, time and place of the hearing.
(1) The hearing shall be held within thirty days after
receipt of said demand.
(2) At the hearing, the commissioner, or a hearing examiner
designated by the commissioner, shall hear evidence. Thereafter,
the commissioner shall enter an order supporting by findings of
facts, affirming, modifying or vacating the order upon which the
hearing was held. This order shall be final unless vacated or
modified upon judicial review thereof.
(3) The hearing and the administrative procedures prior to,
during and following the hearing shall be governed by and in
accordance with the provisions of article five, chapter twenty- nine-a of this code in like manner as if the provisions of
article five were set forth in extenso in this section.
(g) Any person adversely affected by an order entered
following the administrative hearing shall have the right of
judicial review thereof in accordance with the provisions of
section four, article five, chapter twenty-nine-a of this code
with like effect as if the provisions of said section four were
set forth in extenso herein.
(h) The judgment of a circuit court reviewing the order of
the commissioner shall be final unless reversed, vacated or
modified on appeal to the supreme court of appeals in accordance
with the provisions of section one, article six, chapter twenty- nine-a of this Code.
(i) Legal counsel and services for the commissioner in all
such proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general, or his or her
assistants, and in any proceedings in any circuit court by the
prosecuting attorney of that county as well, all without
additional compensation.
§60-3-15. Registration of labels.
(a) No alcoholic liquor shall be sold, or offered or advertised for sale, in this state unless the brand label has
been registered with and approved by the commissioner and the
appropriate fee paid as provided in this section.
(b) An application for registration of a brand label shall
be filed by the primary source of supply if that person is
licensed by the commissioner.
(c) If the primary source of supply is not licensed by the
by the commissioner, but is represented by a nonresident
wholesale distributor licensed by the commissioner, the
nonresident wholesale distributor shall submit each label for
each product the nonresident wholesale distributor offers for
sale in this state.
(d) If the primary source of supply of the brand label is
not licensed by the commissioner and the brand is not offered for
sale in this state by a nonresident wholesale distributor who is
licensed by the commissioner, then the wholesale distributor
licensed under this article shall submit the label for each
product the wholesale distributor licensee offers for sale in
this state that was not registered by the primary source of
supply of the brand or by a nonresident wholesale distributor of
the brand.
(e) The application for registration of a brand label shall
be filed in a form prescribed by the commissioner, and shall
contain the information required by the commissioner. This application shall be accompanied by payment of the annual
registration fee prescribed in this section.
(f) The annual fee for registration of a brand label for
alcoholic liquor shall be one thousand dollars.
(g) Each brand label registered and approved by the
commissioner pursuant to this section shall be valid for a term
which shall run concurrently with the term of the license of the
person who registered the brand label. The registration shall
not be transferable.
(h) If the commissioner denies the application for
registration of a brand label, the commissioner shall return the
registration fee to the applicant, less twenty-five percent of
the fee.
(i) The commissioner may at anytime exempt any discontinued
brand from the fee provisions of this section when the applicant
certifies in writing to the commissioner that the brand has been
or is being discontinued by the primary source of supply in the
United States.
§60-3-16. Sale in sealed, labeled containers required.
All alcoholic liquor sold pursuant to this article shall be
sold only in sealed bottles or other containers, bearing such
seals and labels as the commissioner may require. A manufacturer
of alcoholic liquor offered for sale by any wholesaler shall
attach to each bottle or other container a special label bearing an accurate description of the contents of the bottle or other
container in such form and detail as the commissioner may
require.
§60-3-17. Exclusive franchise agreements prohibited.
It shall be illegal for any manufacturer to enter into any
exclusive franchise agreement with any distributor licensed under
this article or whereby that distributor is given the exclusive
right within this state or in any given territory within this
state to distribute the product or products of that manufacturer
which are to be sold or distributed pursuant to the provisions of
this article.
§60-3-18. Unlawful acts generally.
It shall be unlawful:
(1) For a wholesale distributor or a nonresident wholesale
distributor to sell or deliver alcoholic liquor to any person in
this state who does not hold a license issued under article
three-a of this chapter;
(2) For a person licensed under article three-a of this
chapter to purchase or acquire alcoholic liquor from any source
other than a wholesale distributor or nonresident wholesale
distributor licensed under this article, except that wine may be
purchased from a wine distributor licensed under article eight of
this chapter;
(3) For a person licensed under article seven of this chapter to purchase or acquire alcoholic liquor from any source
other than a person licensed under article three-a of this
chapter, except that wine may be purchased from a wine
distributor licensed under article eight of this chapter;
(4) For a licensee under this article to acquire, transport,
possess for sale, or sell alcoholic liquor other than in the
original package;
(5) For a wholesale distributor or nonresident wholesale
distributor to sell or deliver any brand of alcoholic liquor
purchased or acquired from any source other than the primary
source of supply of the alcoholic liquor which granted the
wholesaler the right to sell the brand at wholesale. Nothing in
this subdivision (5) shall be deemed to prohibit sales of
convenience between wholesalers licensed in this state wherein
one licensed wholesaler sells, transfers or delivers to another
licensed wholesaler a particular brand or brands for sale at
wholesale, of which brand or brands the other licensed wholesaler
may be temporarily out of stock. The commissioner shall
promulgate such rules as may be necessary to carry this
subdivision (5) into effect;
(6) For a person to violate any reasonable rule or
regulation promulgated by the commissioner under this article;
and
(7) Nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be deemed to prohibit any
licensee from employing any person who is at least eighteen less
than twenty-one years of age to serve in any licensee's lawful
employment, including if such employee is engaged in the sale or
delivery of alcoholic liquor under the provisions of this
article.
§60-3-19. Additional criminal penalties.
(a) Any person who violates any provision of this article or
who makes any false statement concerning any material fact in
submitting application for license or for a renewal of a license
or in any hearing concerning the suspension or revocation
thereof, or who commits any of the acts declared in this article
to be unlawful, is guilty of a misdemeanor, and, upon conviction
thereof, shall for each offense be fined not less than fifty
dollars nor more than one thousand dollars, or imprisoned in a
regional jail not less than thirty days nor more than six months,
or both fined and imprisoned. Magistrate courts shall have
concurrent jurisdiction with the circuit court for the trial of
all misdemeanors arising under this article.
(b) It is unlawful for any person licensed under this
article, his or her agents, servants or employees to transport or
deliver alcoholic liquor to any person licensed under article
three-a, seven or eight of this chapter, on Sunday, any general
election day or any statewide special election day.
§60-3-20. Records of sales of liquor.
(a) Every person who sells or ships alcoholic liquor to a
wholesale distributor in this state, or to a person licensed
under article three-a of this chapter, shall maintain records of
all sales, shipments and deliveries, including invoices, records,
receipts, bills of lading and other pertinent papers required by
the alcohol beverage control commissioner.
(b) These records shall be preserved for at least four
years, unless the alcohol beverage control commissioner consents
in writing to their earlier destruction.
§60-3-21 through §60-3-29 reserved.
§60-3-30. Privilege tax imposed.
(a) Imposition of tax. -- For the privilege of selling
alcoholic liquor to persons holding a retail license issued under
article three-a of this code, the wholesale distributor, the
nonresident wholesale distributor, or the domestic manufacturer
licensed under this article shall collect from the retail
licensee a tax equal to twenty-seven percent of the gross
proceeds from sales of liquor to the retail licensee, and pay the
amount of tax to the tax commissioner in accordance with the
provision of this article.
(b) Gross proceeds defined. -- For purposes of this section
"gross proceeds" means the amount received or receivable, whether
in cash or in kind, from a retail licensee or from third-parties or others for alcoholic liquor sold to a person licensed under
article three-a of this chapter, without any deduction for any
expenses of any kind: Provided, That accrual basis wholesalers
shall be allowed to reduce gross proceeds by bad debts to the
extent those bad debts represent gross proceeds upon which the
tax imposed by this section was previously paid by the wholesale
distributor or the nonresident wholesale distributor.
(c) Monies held in trust. -- Tax collected under this
section shall be deemed monies held in trust for the state of
West Virginia until they are paid over to the tax commissioner.
§60-3-31. Liability of retail licensee.
(a) If any person licensed under article three-a of this
chapter refuses or otherwise does not pay to the seller the tax
imposed by section thirty of this article, the retail licensee is
personally liable for the amount of tax applicable to the
transaction or transactions.
(b) In such cases, the tax commissioner has authority to
make an assessment against the retail licensee based upon any
information in the tax commissioner's possession or that may come
into the tax commissioner's possession. This assessment shall be
made and notice given as provided in article ten, chapter eleven
of this code.
(c) This section may not be construed as relieving the
seller from liability for collecting and paying over the tax.
§60-3-32. Liability of officers, partners or members of person
required to collect tax.
(a) If the wholesale distributor, nonresident wholesale
distributor or domestic manufacturer is a corporation or
association, the officers thereof, by whatever name called, shall
be personally liable, jointly and severally, for any default on
the part of the corporation or association and payment of the tax
imposed by this article and any additions to tax, penalties and
interest thereon imposed by article ten, chapter eleven of this
code, may be enforced against them as against the corporation or
association by issuing an assessment as provided in article ten,
chapter eleven of this code, or instituting civil action against
one or more or all of the officers.
(b) If the wholesale distributor, nonresident wholesale
distributor, or domestic manufacturer is a partnership, limited
liability company, association or other group or combination
acting as a unit that is treated as a partnership for income tax
purposes, owners thereof, by whatever name called, shall be
personally liable, jointly and severally, for any default on the
part of the wholesale distributor or nonresident wholesale
distributor, as the case may be, and payment of the tax and any
additions to tax, penalties and interest thereon imposed by
article ten, chapter eleven of this code, may be enforced against
them as against the corporation, partnership, limited liability company, association, or other group or combination acting as a
unit that is treated as a partnership for income tax purposes by
issuing an assessment as provided in article ten, chapter eleven
of this code, or instituting civil action against one or more or
all of the officers.
(c) For purposes of this section, a domestic manufacturer is
one that manufactures liquor or an alcoholic beverage in this
state.
§60-3-33. Time for filing returns.
Every wholesale distributor, nonresident wholesale
distributor and domestic manufacturer required to collect the tax
imposed by this article shall file a return with the tax
commissioner by the twentieth day of the month covering business
transacted during the preceding calendar month. A return shall be
filed even though the business owes no tax that calendar month.
§60-3-34. Extension of time for filing return.
The tax commissioner may, upon written request received on
or before the due date of the return or other document, grant a
reasonable extension of time for filing any return, declaration
or statement, or other document required to be filed by this
article or by rule, upon such terms as the commissioner may by
rule prescribe, or by contract require, if good cause
satisfactory to the tax commissioner is provided by the taxpayer.
No such extension shall be for more than six months.
§60-3-35. Time for paying tax.
(a) General rule. -- The person required to make a monthly
return under this article shall, without assessment or notice and
demand from the tax commissioner, pay such tax at the time and
place fixed for filing the monthly return, determined without
regard to any extension of time for filing such return.
(b) Extension of time for paying tax. -- The tax
commissioner may extend the time for payment of the amount of tax
shown, or required to be shown, on any monthly return required by
this article, for a reasonable period not to exceed six months
from the date fixed by statute for the payment thereof.
(c) Amount determined as deficiency. -- Under rules
prescribed by the tax commissioner, the commissioner may extend
the time for payment of the amount determined as a deficiency of
the taxes imposed by this article for a period not to exceed
eighteen months from the due date of the deficiency. In
exceptional cases, a further period of time not to exceed twelve
months may be granted. The tax commissioner may grant an
extension of time under this subsection only where it is shown to
the tax commissioner's satisfaction that payment of a deficiency
upon the date fixed for payment thereof will result in undue
hardship to the taxpayer.
(d) No extension in certain circumstances. -- The tax
commissioner may not grant an extension of time under this section if the failure to timely pay tax, or if the deficiency in
payment of tax, is due to negligence, to intentional disregard of
rules or regulations, or to fraud.
§60-3-36. Refund or credit of taxes.
The tax commissioner shall refund, or credit on a subsequent
return, any tax paid to the tax commissioner under this article
which has been erroneously or illegally collected.
§60-3-37. Place for filing returns and other documents.
Tax returns, statements or other documents, or copies
thereof, required by this article or by rules shall be filed with
the tax commissioner by delivery, in person or by mail, postage
prepaid, to the tax commissioner's office in Charleston, West
Virginia: Provided, That the tax commissioner may, by rule,
prescribe the place for filing such returns, statements or other
documents, or copies thereof, at one or more other locations.
§60-3-38. Signing of returns and other documents.
(a) General. -- Any return, statement or other document
required to be made under the provisions of this article shall be
signed in accordance with instructions or rules prescribed by the
alcohol beverage control commissioner or the tax commissioner, as
applicable to the document required to be signed.
(b) Signing of corporation returns. -- The president, vice
president, treasurer, assistant treasurer, chief accounting
officer or any other duly authorized officer shall sign the return or other document of a corporation. In the case of a
return or other document made for a corporation by a fiduciary,
the fiduciary shall sign the return. The fact that an
individual's name is signed on the return is prima facie evidence
that the individual is authorized to sign the return on behalf of
the corporation.
(c) Signing of return of partnership or other pass-through
entity. Any one of the partners or members of a pass-through
entity shall sign the return of a partnership or other pass- through entity. The fact that a partner's or member's name is
signed on the return is prima facie evidence that that partner or
member is authorized to sign the return on behalf of the
partnership or other pass-through entity.
(d) Signature presumed authentic. -- The fact that an
individual's name is signed to a return, statement or other
document is prima facie evidence for all purposes that the
return, statement or other document was actually signed by him or
her.
(e) Verification of returns or other documents.
(1) Documents filed with ABCA Commissioner. -- Except as
otherwise provided by the alcohol beverage control commissioner,
any application, return, declaration or other document required
to be made under this article and filed with the alcohol beverage
control commissioner shall contain or be verified by a written declaration that it is made under the penalties of perjury.
(2) Documents filed with Tax Commissioner. -- Except as
otherwise provided by the tax commissioner, any return,
declaration or other document required to be made under this
article and filed with the tax commissioner shall contain or be
verified by a written declaration that it is made under the
penalties of perjury.
§60-3-39. Accounting periods and methods of accounting.
(a) General rule. -- For purposes of the tax imposed by this
article, a taxpayer's taxable year shall be the same as
taxpayer's taxable year for federal income tax purposes. If
taxpayer has no taxable year for federal income tax purposes,
then the calendar year shall be taxpayer's taxable year under
this article.
(b) Change of taxable year. -- If a taxpayer's taxable year
is changed for federal income tax purposes, taxpayer's taxable
year for purposes of this article shall be similarly changed.
The taxpayer shall be provided a copy of the authorization from
the Internal Revenue Service for such change with taxpayer's
annual return for the taxable year filed under this article.
(c) Method of accounting. -- A taxpayer's method of
accounting under this article shall be the same as taxpayer's
method of accounting for federal income tax purposes. Accrual
basis taxpayers may deduct bad debts only in the year to which they relate.
(d) Change of accounting methods. -- If a taxpayer's method
of accounting is changed for federal income tax purposes, the
taxpayer's method of accounting for purposes of this article
shall similarly be changed. The taxpayer shall provide a copy of
the authorization for such change from the Internal Revenue
Service with its annual return for the taxable year filed under
this article.
(e) Adjustments. -- In computing a taxpayer's liability for
tax for any taxable year under a method of accounting different
from the method under which the taxpayer's liability for tax
under this article for the previous year was computed, there
shall be taken into account those adjustments which are
determined, under regulations prescribed by the tax commissioner,
to be necessary solely by reason of the change in order to
prevent amounts from being duplicated or omitted.
§60-3-40. Reports required; due date.
(a) Persons licensed under this article or under article
three-a, seven or eight of this chapter, shall, when required by
this article, or the tax commissioner, file a report covering
sales, purchases and deliveries of alcoholic liquor and wine in
the previous month and providing such information as the tax
commissioner may deem necessary for the ascertainment or
assessment of the taxes and fees imposed by this chapter. Required reports shall be filed by the twentieth day of the month
immediately following close of the period covered by the report.
(b) Each report shall be signed under penalty of perjury on
such forms as the tax commissioner may prescribe. When a report
is filed, the person shall remit any taxes and fees owed or due
under this article, if any.
(c) When a report is required, the report shall be filed
even though a tax or fee might not be due, or no business
transacted, for the period covered by the report.
§60-3-41. General tax procedure and administration.
The taxes imposed by this article shall be administered and
collected by the tax commissioner. Each and every provision of
the "West Virginia Tax Procedure and Administration Act" set
forth in article ten, chapter eleven of this code applies to the
tax imposed by this section with like effect as if that act were
applicable only to the taxes imposed by this article and were set
forth in extenso in this article.
§60-3-42. Tax crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes
and Penalties Act" set forth in article nine, chapter eleven of
this code applies to the tax imposed by this article with like
effect as if that act were applicable only to the taxes imposed
by this article and were set forth in extenso in this article.
§60-3-43. Tax records.
(a) Every person liable for reporting or paying any tax
under this article shall keep records, receipts, invoices and
other pertinent papers reasonably necessary to verify the
accuracy of information reported in returns, reports and other
documents filed with the tax commissioner.
(b) Records shall be kept in such forms as the tax
commissioner may require for returns, reports and other documents
in his or her office.
(c) Unless otherwise permitted, in writing, by the tax
commissioner, each delivery ticket or invoice for each purchase
or wholesale sale of alcoholic liquor to a wholesale distributor
licensed under this article or to a person licensed under article
three-a of this chapter must be recorded upon a serially numbered
invoice showing the name and address of the seller and the
purchasers, point of delivery, the date, quantity, price of the
product and such other reasonable information as the tax
commissioner may require.
(d) Tax records shall be kept for four years after the
monthly return required under this article is filed, unless the
tax commissioner, in writing, authorizes their earlier
destruction. An extension of time for making an assessment shall
automatically extend the time period for keeping the records for
all years subject to audit covered in the agreement for extension
of time.
§60-3-44. Audit and inspection of records.
The alcohol beverage control commissioner and the tax
commissioner may inspect the books, accounts and records of any
licensee and may examine, under oath, any officer, agent or
employee of any licensee or any person engaged in the business of
selling, shipping or delivering alcoholic liquor to a wholesale
distributor or to a person licensed under article three-a of this
chapter.
§60-3-45. Sharing of information; exception to confidentiality.
For purposes of administration and enforcement of this
article and collection of taxes due under this article, the
alcohol beverage control commissioner and the tax commissioner
shall exchange information collected under this article to the
extent such information is reasonably necessary for these
activities. This exchange of information as between
commissioners and between their respective employees shall not
violate any confidentiality rule of this state. However, to the
extent the information is or would be confidential under article
ten, chapter eleven of this code, it shall be confidential while
in the actual or deemed possession of the alcohol beverage
control commissioner and his or her employees. Any unauthorized
disclosure shall be punishable as provided in section five,
article ten of said chapter eleven.
§60-3-46. Disposition of revenue.
(a) All fees collected by the alcohol beverage control
commissioner under the provisions of this article shall be
deposited in the state treasury and credited to a special fund to
be known as the "alcohol beverage license special fund." All
moneys in such special fund may be expended only for the
administration of the provisions of this article or, to the
extent of any excess, for the administration of this chapter or
as may be appropriate by law.
(b) Ninety-five and five tenths percent of the net privilege
tax imposed by this article and collected by the tax commissioner
shall be paid into the state treasury and deposited in the
operating fund of the alcohol beverage control commissioner.
(c) The remaining four and five-tenths percent of the net
privilege tax imposed by this article and collected by the tax
commissioner shall be retained as a fee for administration,
collection and enforcement of the tax. It shall be paid into the
state treasury and deposited into the special revenue fund hereby
established for that purpose.
(d) All moneys collected by the alcohol beverage control
commissioner and the tax commissioner, under the provisions of
this article, shall be remitted to the state treasury monthly
within fifteen days after the end of each month.
§60-3-47. Severability.
If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect,
impair or invalidate the remainder of said article, but shall be
confined in its operation to the provision thereof directly
involved in the controversy in which such judgment shall have
been rendered, and the applicability of such provision to other
persons or circumstances shall not be affected thereby.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-2. Legislative findings and declaration; 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
continue to be done by retail licensees; that there is a need for
the state to control regulate 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 proceed in an effective manner by continuing to allow
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) It is the purpose of the Legislature in providing for
the continued 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 wholesaler distributors and nonresident
wholesale distributors licensed by 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-17. Retail licensees to purchase liquor from licensed
distributors.
(a) The commissioner shall fix wholesale prices for the sale
of liquor, other than wine, to retail licensees. The commissioner
shall sell liquor, other than wine, to retail licensees according
to a uniform pricing schedule: Provided, That the commissioner
may also establish discount prices for the sale to retail
licensees of liquor in inventory at state liquor stores and agency stores, but such discount prices shall only be available
to retail licensees who accept delivery of such liquor at such
stores. The commissioner shall obtain if possible, upon request,
any liquor requested by a retail licensee.
(b) Wholesale prices shall be established in order to yield
a net profit for the general fund of not less than six million
five hundred thousand dollars annually on an annual volume of
business equal to the average for the past three years. The net
revenue derived from the sale of alcoholic liquors shall be
deposited into the general revenue fund in the manner provided in
section seventeen, article three of this chapter.
(c) On or before the first day of July, one thousand nine
hundred ninety, the commissioner shall specify the maximum
wholesale markup percentage which may be applied to the prices
paid by the commissioner for all liquor, other than wine, in
order to determine the prices at which all liquor, other than
wine, will be sold to retail licensees during the succeeding
three years.
(d) (a) A retail licensee shall purchase all liquor, other
than wine, for resale in this state only from the commissioner a
licensed distributor, and the provisions of sections twelve and
thirteen, article six of this chapter shall not apply to the
transportation of such liquor: Provided, That a retail licensee
shall purchase wine from a distributor thereof who is duly licensed under article eight of this chapter. All liquor, other
than wine, purchased by retail licensees shall be stored in the
state at the retail outlet or outlets operated by the retail
licensee: Provided, however, That the commissioner, in his or
her discretion, may upon written request permit a retail licensee
to store liquor at a site other than the retail outlet or
outlets.
(b) Sales under this section shall be of such volume to
generate from the tax imposed in section 30, article 3 of this
chapter an income for the general fund of not less than twenty
million dollars annually.
(e) The sale of liquor by the commissioner to retail
licensees shall be by money order, certified check or cashier's
check only: Provided, That if a retail licensee posts with the
commissioner an irrevocable letter of credit from a financial
institution acceptable to the commissioner guaranteeing payment
of checks, then the commissioner may accept the retail licensee's
checks in an amount up to the amount of the letter of credit.
NOTE: The purpose of this bill is to eliminate the State's
direct involvement in making wholesale sales of liquor to
retailers licensed under article 3A, chapter 60 of the Code. The
liquor warehouse would be closed by October 1, 1999. After
closure, retail licensees would be required to purchase liquor
from wholesale distributors and nonresident wholesale
distributors licensed by the Alcohol Beverage Control Commissioner. A new excise tax and various license fees are
imposed to maintain revenue to operate the Alcohol Beverage
Control Administration, to administer, collect and enforce
payment of this new excise tax, and to continue to provide
approximately $7 million for the General Revenue Fund.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Article 3 is new; therefore, strike-throughs and
underscoring are omitted.
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