H. B. 3023
(By Delegates Doyle, Michael, Thompson, Pettit, Laird and
Facemyer)
(Originating in the Committee on Finance)
[March 2, 1999]
A BILL to repeal section thirty, article three-a, chapter sixty
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections three,
four, five, seven, eight, ten, ten-a, twelve, seventeen and
twenty-nine of said article; to further amend said article
by adding thereto six new sections, designated sections two- a, ten-b, ten-c, twelve-a, twelve-b and twenty-seven-a; and
to amend and reenact section eleven, article seven of said
chapter, all relating generally to the sale of liquor at
retail; further legislative findings, declaration and
purpose; operation of state store by commissioner in certain
circumstances; revising definitions; appointments to retail
liquor licensing board; modification of market zones;
increasing number of Class B licenses in a market zone in
limited circumstances; limitation on number of licenses
held; principal officers, partners and members of applicants
for licenses; requirement that applicant hold federal license to sell liquor at wholesale; bidding procedures;
preference for resident bidders; bids for licenses issued
for annual period beginning the first day of July, two
thousand; determination of minimum bids; rejection of bids;
notice to current licensee of highest bid in certain
circumstances; issuance of license to current licensee in
certain circumstances; bid preference for current licensee;
new bids for licenses in certain circumstances; unlawful
inducement of another to refrain from bidding for a license
or from operating an outlet; criminal and civil penalties;
expiration of licenses for the period beginning the first
day of July, one thousand nine hundred ninety-nine; the
imposition of municipal licenses and fees on retail
licensees; decennial review of licenses; legislative rules
governing decennial review; additional license fees for
annual periods beginning the first day of July, two thousand
ten; surety bonds guaranteeing payment for liquor;
establishing minimum prices for sale of liquor by retail
licensees; revocation of license for failure to operate
outlet; reduction of authorized outlets for failure to
operate; issuance of Class B license in the stead of an
unoperated Class A license outlet; restriction on bids;
legislative rules governing determination of failure to
operate; review of revocation or reduction; purchases of
liquor from licensee where license revoked, expired or
surrendered; and contracts for delivery of liquor by retail licensee.
Be it enacted by the Legislature of West Virginia:
That section thirty, article three-a, chapter sixty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections three, four, five, seven,
eight, ten, ten-a, twelve, seventeen and twenty-nine of said
article be amended and reenacted; that said article be further
amended by adding thereto six new sections, designated sections
two-a, ten-b, ten-c, twelve-a, twelve-b and twenty-seven-a; and
that section eleven, article seven of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-2a. Further legislative findings, declarations and
purpose.
(a) In addition to the findings and declarations set forth
in subsection (a), section two of this article, the Legislature
hereby finds and declares that:
(1) The provisions of this article as enacted during the
regular session of the Legislature in the year one thousand nine
hundred ninety were intended to require that all licenses issued
for the retail sale of liquor expire as of the first day of July,
two thousand, and that the issuance of retail licenses for the
period beginning the first day of July, two thousand, be based on
sealed competitive bids;
(2) The purposes set forth in subsection (b), section two of
this article remain the purposes of the Legislature;
(3) Many of those persons who currently hold retail licenses
have not only provided the services to the public contemplated by
this article, but in many instances have provided employment and
otherwise made substantial contributions to the economic and
civic development of the communities in which they conduct
business, and therefore, current licensees should be afforded
special consideration should their bids for the licenses issued
for the period beginning the first day of July, two thousand be
unsuccessful; and
(4) Further statutory changes are desirable to effect the
purposes set forth in subsection (b), section two of this
article.
(b) It is, therefore, the further purposes of the
Legislature in providing for the retail sale of liquor to:
(1) Require that all licenses issued for the period
beginning the first day of July, two thousand, be based on sealed
competitive bids;
(2) Provide current licensees who, having bid in the manner
required by the provisions of this article, fail to submit the
highest bid for licenses issued for the period beginning the
first day of July, two thousand, an additional opportunity to
obtain the license; and
(3) Effect statutory changes to further the purposes
provided in this section and section two of this article.
§60-3A-3. Sale of liquor by retail licensees permitted;
cessation of retail sale of liquor by state.
(a) Notwithstanding any provision of this code to the
contrary, the sale of liquor by retail licensees in accordance
with the provisions of this article shall be lawful.
(b) Upon the opening of a retail outlet in any market zone,
the state shall, as soon as practicable, discontinue operating
any and all state liquor stores and agency stores within such
market zone so long as a retail outlet is in operation in such
market zone.
(c) No provision of this section shall prevent the
commissioner, with the consent of the board, from operating a
state liquor store in a market zone pursuant to the provisions of
article three of this chapter where there are no retail outlets
in operation in the market zone, the operation of any retail
outlet in the market zone is prevented by a matter in controversy
pending judicial adjudication, and the board determines that the
resolution of the controversy will continue for such duration
that the opening of a state liquor store is necessary to meet
reasonable consumer concerns of availability of liquor.
§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 permitting
the retail sale of liquor at more than one retail outlet;
"Class B retail license" means a retail license permitting
the 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
or other principal
officer, partner or member of an applicant or retail licensee,
any vice president
or other principal officer, partner or member
of an applicant or retail licensee in charge of a principal
business unit or division, or any other officer
, partner or
member 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;
"Person" means an individual, firm, corporation,
association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or
nature.
"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-5. Creation of retail liquor licensing board; members,
terms, meetings and officers; general provisions.
(a) There is hereby created the state retail liquor
licensing board which shall be composed of five members, three of
whom shall be appointed by the governor by and with the advice
and consent of the senate, one of whom shall be the secretary of
tax and revenue, and one of whom shall be the commissioner. The
secretary of tax and revenue and the commissioner shall serve as
the chairman and secretary, respectively, of the board. No more
than two of the three members appointed by the governor shall be
of the same political party. No member of the board may hold a
retail license or have any financial interest, directly or
indirectly, in any retail licensee.
(b) The provisions of this subsection apply to the three
members appointed by the governor. They shall be appointed for
overlapping terms of three years each and until their respective
successors have been appointed and have qualified, except for the
original appointments. For the purpose of original appointments, one member shall be appointed for a term of three years and until
his or her successor has been appointed and has qualified, one
member shall be appointed for a term of two years and until his
or her successor has been appointed and has qualified, and one
member shall be appointed for a term of one year and until his or
her successor has been appointed and has qualified. Members may
be reappointed for any number of terms. Before entering upon the
performance of his or her duties, each member shall take and
subscribe to the oath required by Section 5, Article IV of the
constitution of this state. Vacancies shall be filled by
appointment by the governor for the unexpired term of the member
whose office shall be vacant and such appointment shall be made
within sixty days of the occurrence of such vacancy. Any member
may be removed by the governor in case of incompetency, neglect
of duty, gross immorality or malfeasance in office. Members
shall receive compensation of one hundred dollars per day for
each day actually engaged in the performance of their duties as
board members, and in addition shall be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of their duties.
Appointments to fill vacancies made
after the amendment to this section made in one thousand nine
hundred ninety-nine shall be made to provide that after the next
two appointments, and thereafter, there is a member from each of
the congressional districts of this state as delineated in
accordance with section three, article two, chapter one of this
code.
(c) A majority of the members of the board constitutes a
quorum and meetings shall be held at the call of the chairman.
(d) Staff, office facilities and costs of operation of the
board shall be provided by the commissioner.
§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.
The market zones established by the board for the retail sale of
liquor within this state under the enactment of this section in
one thousand nine hundred ninety may not be modified by the board
unless authorized by the Legislature. For each market zone so
established, the commissioner shall be authorized to issue one
Class A retail license and one or more Class B retail licenses.
Each Class A retail license shall permit the holder thereof to
operate such number of retail outlets as the board shall have
authorized for that market zone. The number of Class B retail
licenses to be issued by the commissioner within each market zone
shall not exceed fifty percent of the number of retail outlets
authorized for the Class A retail license for such market zone
,
except as otherwise authorized by subsection (e) of this section
or section twenty-seven-a of this article:
Provided, That
,
except as authorized by subsection (e) of this section or section
twenty-seven-a of this article, in a market zone where the number
of retail outlets authorized under the Class A retail license is
an odd number, the number of Class B retail licenses which may be
issued in such 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 Class A retail license.
(b) If the board determines that a market zone is not suited
for the issuance of a Class A retail license, then only Class B
retail licenses may be authorized for such market zone and the
board shall determine the maximum number of Class B retail
licenses which may be issued for such market zone.
(c) When authorizing Class B retail licenses for a market
zone, the board may create one or more designated areas within
such market zone and authorize one Class B retail license for
each such designated area. For each such market zone, the
commissioner may issue additional Class B retail licenses for
retail outlets to be located outside any such designated area,
but the number of such additional Class B retail licenses, when
added to the total number of Class B retail licenses issued for
all designated areas within the market zone, shall not exceed the
maximum number of Class B retail licenses permitted under
subsection (a) of this section for that market zone
, except as
authorized by subsection (e) of this section or section twenty- seven-a of this article.
(d) A person may hold one or more Class A retail licenses
and one or more Class B retail licenses, but for the same market
zone no person shall hold a Class A retail license and a Class B
retail license or more than one Class B retail license.
(e) Notwithstanding any provision of subsection (a) or (c) of this section, no later than sixty days prior to the receipt of
bids described in section ten-b of this article, the board may
authorize the commissioner to issue an additional Class B license
in a market zone for the period beginning the first day of July,
two thousand, where the board determines that:
(1) Each outlet authorized to operate in the market zone has
been open and in operation for not less than one year;
(2) Changes in economic and demographic factors, including
substantial population increases within the market zone, clearly
demonstrate the need for an additional retail outlet or outlets
within the market area to meet an increase in consumer demand;
and
(3) The issuance of an additional Class B license in the
market zone will not significantly impair the efforts to procure
the revenues described in subsection (b) section ten-b of this
article.
(f) No person may hold combination of licenses that, in the
aggregate, authorizes the operation of more than twenty-five
percent of the total number of retail outlets authorized under
the provisions of this article to operate in this state.
§60-3A-8. Retail license application requirements; retail
licensee qualifications.
(a) Prior to or simultaneously with the submission of a bid
for a 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 other than an individual, 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 other
principal officer, partner or member 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
, or other interests in such 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 other than an individual, that none of
its executive officers
, directors or general partners other
principal officers, partners or members, or any person owning,
directly or indirectly, at least twenty percent of the
outstanding stock
, of or partnership
, or other interests in such
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 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 or
other principal officer, partner or member of the applicant, or
any person owning, directly or indirectly, at least twenty
percent of the outstanding stock
, of or partnership
, or other
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
; or
(3) The applicant does not hold a license issued pursuant to
federal law to sell liquor at wholesale.
§60-3A-10. Bidding procedure.
(a) Except as provided in section ten-b of this article,
bids for licenses shall be governed by the provisions of this
section.
(a) (b) The issuance of retail licenses shall be based on
sealed competitive bids in accordance with the provisions of this
section. Bids for the issuance of retail licenses 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 publication shall be each market zone within which a retail
outlet shall be located. The second publication of such notice
must appear more than
ninety sixty days next preceding the final
day for submitting bids.
(b)(c) Each bid shall indicate the market zone for which the
retail license is sought, whether the bid is for a Class A retail
license or Class B retail license, and, if the board has created
one or more designated areas for such market zone, whether the
bid is for the Class B retail license 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 retail license
shall be awarded to the highest bidder. In market zones where
two or more Class B retail licenses are authorized (other than
for a designated area or areas), such licenses shall be awarded
to those persons submitting the highest bids. No bid shall be
considered unless the bond required under section eleven of this
article is submitted to the commissioner. All bids for a retail
license 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 retail license.
(c)(d) 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 retail license, the commissioner shall indicate upon the
successful bid that it was the 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 retail
license, 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 as lessee for the remaining
term of the lease. Should such lessor agree to accept the
eventual Class B retail licensee, such retail licensee shall have
the option to assume such lease. In market zones where there are
two or more Class B retail licensees, the retail licensee who or
which submitted the highest bid shall have the option to assume
such lease and, if such retail licensee does not assume such
lease, then the retail licensee who or which submitted the next
highest bid for a retail license in such market zone shall have
the option to assume such lease.
(e) Prior to the issuance of the retail license 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 retail licenses 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 bidder
shall not be issued the retail license. The commissioner shall
then issue the retail license to the next highest bidder for such
retail license or reject all bids and start anew the bidding
procedure for such retail license.
§60-3A-10a. Preference for resident bidders.
In determining the highest bidder for purposes of section
ten of this article, the board shall afford a five percent
preference for West Virginia resident bidders, which preference
shall be computed by adding five percent of the bid price to the
bid price submitted by each resident bidder. For purposes of
this section a bidder shall be deemed to be a West Virginia
resident if the bidder (1) has resided in this state for at least
four years immediately prior to the date on which the bid is
opened; or, if the bidder is
a corporation is an applicant other
than an individual, has had its headquarters or principal place
of business in this state for at least four years immediately
prior to such date and (2) meets the requirements set forth in
section forty-four, article three, chapter five-a of this code
relating to a residency of vendors, except for the requirement of
having paid business and occupation taxes.
§60-3A-10b. Bidding procedure for licenses issued for the period July 1, 2000 to June 30, 2001.
(a) The issuance of Class A licenses and Class B licenses
for the period beginning the first day of July, two thousand,
and ending the thirtieth day of June, two thousand one, shall be
based upon sealed competitive bid in accordance with the
provisions of section ten of this article except as provided in
this section.
(b) Prior to accepting bids for Class A licenses and Class
B licenses to be issued for the period beginning the first day of
July, two thousand, and ending the thirtieth day of June, two
thousand one, the board shall determine the minimum bid for each
license based upon a review of the sales at each retail outlet
permitted to operate under the license and such other factors as
the board may determine to generate the revenues from liquor
license renewal projected by the governor's official revenue
estimates for fiscal year two thousand as presented to the
Legislature in the one thousand nine hundred ninety-nine regular
session.
(c) All bids for a retail license for the period beginning
the first day of July, two thousand, and ending the thirtieth day
of June, two thousand one, shall be rejected by the board if the
board determines that the highest bid fails to meet the minimum
bid. Where the board determines the highest bid meets or exceeds
the minimum bid, the board shall determine whether, at the time
of the bid, the same retail license for the period ending the
thirtieth day of June, two thousand, was held. If the person holding the same retail license for the period ending the
thirtieth day of June, two thousand, submitted a bid that was not
less than the minimum bid and is, after considering any
preference applicable under the provisions of section ten-a of
this article, an unsuccessful bidder for the license for the
period beginning the first day of July, two thousand, the
commissioner shall notify the person that upon paying the amount
of the highest bid, subject to the provisions of subsection (d)
of this section, and upon compliance with all other requirements
imposed by the provisions of this article for the issuance of the
license, the retail license for the period beginning the first
day of July, two thousand, shall be issued to the person. If,
within such time as the commissioner may determine, the person
pays the amount to the commissioner and complies with all other
requirements imposed by the provisions of this article for the
issuance of the license, the retail license for the period
beginning the first day of July, two thousand, shall be issued to
the person.
(d) The board shall, in determining the amount the
unsuccessful bidder must pay as described in subsection (c) of
this section, afford the unsuccessful bidder a preference. If
the unsuccessful bidder is a West Virginia resident as defined in
section ten-a of this article, the board shall afford the
unsuccessful bidder a ten percent preference. If the
unsuccessful bidder is not a West Virginia resident, the board
shall afford the unsuccessful bidder a five percent preference. The preference shall be computed by subtracting the preference
percentage of the highest bid price from the highest bid price.
(e) In the event all bids submitted for a license fail to
meet the minimum bid amount for the license as determined by the
board, the license shall be offered for bid again after the board
determines a new minimum bid amount for the license.
§60-3A-10c. Criminal penalties for unlawful inducement.
(a) Any person who gives another person any thing of value
to induce the other to refrain from bidding for a retail license
is guilty of a misdemeanor and, upon conviction, shall be fined
not more than ten thousand dollars, and, in addition, shall be
subject to a civil penalty payable to the commissioner of not
more than one million dollars.
(b) Any person who gives a person any thing of value to
induce the other to refrain from operating an outlet authorized
under a retail license is guilty of a misdemeanor and, upon
conviction, shall be fined not more than ten thousand dollars,
and, in addition, shall be subject to a civil penalty payable to
the commissioner of not more than one million dollars.
§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 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 Class A retail license applies by one thousand five hundred
dollars. The annual retail license fee for a Class B 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 license and such additional information as may be
requested by the commissioner on such forms and by such date as
may be prescribed by the commissioner, together with the payment
to the commissioner of the applicable annual retail license fee
required under this section.
(c) No person may sell liquor at any retail outlet if the
retail license applicable to such outlet has been suspended or
revoked, or has expired.
(d) All retail licenses issued or renewed under the
provisions of this article
for the period beginning the first day
of July, one thousand nine hundred ninety-nine, and ending the
thirtieth day of June, two thousand, 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 retail licenses shall be
issued by following the bidding and other procedures set forth
herein for the initial issuance of retail licenses.
(e) Notwithstanding any provision of section eighteen, article four of this chapter to the contrary, a municipality may
invoke the authority granted by section four, article thirteen,
chapter eight of this code to require an annual license from each
retail licensee and require payment therefore in amounts not to
exceed the amounts provided in subsection (a) of this section.
§60-3A-12a. Decennial review of retail licenses.
(a) This section applies to retail licenses issued the first
day of July, two thousand, and thereafter.
(b) Prior to the first day of July, two thousand ten, and
prior to a like date in every tenth year thereafter, the board
shall conduct a review of each license to determine whether
public convenience, interest, or necessity will be served by
renewal of the license. The licensee shall provide the board
such information as it may require for this purpose. If the
board, upon consideration of such matters as the board may
determine, shall find that public interest, convenience, and
necessity would be served by granting a renewal of the license to
the licensee, it shall grant the renewal.
(c) The board shall propose legislative rules for
promulgation in accordance with the provisions of chapter twenty- nine-a of this code setting forth procedures for conducting the
review described in subsection (c) of this section, information
that will be required from the licensee subject to the review,
guidelines for determining whether public interest, convenience,
and necessity will be served by the renewal of a license, and
alternative actions that may be taken by the board in the event it finds that public interest, convenience, and necessity would
not be served by granting a renewal of the license to the
licensee.
§60-3A-12b. Additional annual fees.
(a)(1) In addition to the annual retail license fees
required by subsection twelve of this article, an additional
retail license fee for each license for the period beginning the
first day of July, two thousand ten, and for like periods each
ten years thereafter, shall be required from each licensee.
(2) The additional retail license fee described in
subdivision (1) of this subsection shall be based on total liquor
sales made through the operation of outlets authorized under the
license during such preceding calendar years as may be determined
by the board. The board shall determine the additional retail
license fees in amounts determined by the board under legislative
rules proposed for promulgation pursuant to the provisions of
chapter twenty-nine-a of this code.
(b) For each license for the period beginning the first day
of July, two thousand eleven, and for like periods in every year
thereafter, other than for the periods described in subsection
(a) of this section, an additional fee shall be required from
each licensee. The amount of the additional fee shall equal five
percent of the retail licensee's liquor purchases from the
commissioner, payable at the time of purchase.
§60-3A-17. Wholesale prices set by commissioner; retail
licensees to purchase liquor from state; transportation and storage; method of payment.
(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 retail licensee shall purchase all liquor, other than wine, for resale in this state only from the commissioner, 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.
(e)(d) 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
or bond with surety
acceptable to the commissioner 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.
(e)(1) A retail licensee may not sell liquor to persons
licensed under the provisions of article seven of this chapter at
less than one hundred ten percent of the retail licensee's cost
as defined in section six, article eleven-a, chapter forty-seven
of this code.
(2) A retail licensee may not sell liquor to the general
public at less than one hundred seven percent of the retail licensee's cost as defined in section six, article eleven-a,
chapter forty-seven of this code.
§60-3A-27a. Revocation of license or reduction of authority to
operate retail outlet for failure to operate
retail outlet.
(a)(1) The commissioner may revoke a Class A retail license
for failure to operate at least one of the retail outlets
authorized under the license. The commissioner may revoke a
Class B retail license for failure to operate the retail outlet
authorized under the license.
(2) The commissioner may not accept the bid of a person who
has had a license revoked pursuant to subdivision (1) of this
subsection when the license is offered for bid following the
revocation.
(b)(1) Where a person operates at least one of the retail
outlets authorized under a Class A license, but fails to operate
the full number of retail outlets authorized under the license,
the commissioner may reduce the number of retail outlets the
person is authorized to operate under the license by the number
that is not being operated.
(2) Notwithstanding any provision of section seven of this
article to the contrary, the board may authorize the commissioner
to issue, subject to the bid requirements of section ten of this
article, a Class B license in the stead of each retail outlet for
which authority to operate under a Class A license has been
reduced under subdivision (1) of this subsection.
(3) The commissioner may not accept the bid of a person who
has had the number of retail outlets authorized under a license
reduced pursuant to subdivision (1) of this subsection for any
Class B license issued in the stead of a retail outlet previously
authorized under the reduced license.
(c) The board shall propose legislative rules for
promulgation pursuant to the provisions of chapter twenty-nine-a
of this code prescribing the criteria under which the
commissioner is to determine whether a retail licensee has failed
to operate an outlet.
(d) A revocation or reduction under this section shall be
subject to the provisions for notice, hearing and review
prescribed in section twenty-eight of this article.
§60-3A-29. Disposition of inventory upon revocation or
surrender of retail license.
In the event of the revocation
, expiration or surrender of
any retail license in accordance with the provisions of this
article, the commissioner
shall may, in his or her discretion,
purchase,
and the retail licensee holding such retail license
shall sell to the commissioner, or authorize another to purchase,
all
or any portion of the liquor inventory of such retail
licensee
. based on the then current cost of such inventory less
any expenses incurred by the commissioner in connection with the
repossession thereof If the commissioner elects to purchase, or
authorizes another to purchase, the inventory or any portion
thereof, the retail licensee shall sell the same as directed by, and upon terms determined by, the commissioner.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§60-7-11. Licensee must purchase alcoholic liquors from or
through commissioner or retail licensee;
exceptions.
(a)
(1) All licensees shall purchase all alcoholic liquors
sold by them from the West Virginia alcohol beverage control
commissioner at prices established by such commissioner for sales
of such alcoholic liquors to the public generally or from any
retail licensee licensed under the provisions of article three-a
of this chapter, except that such licensees may purchase those
wines permitted to be sold at retail pursuant to article eight of
this chapter from those distributors licensed pursuant to said
article at the same prices such distributors sell such wines to
retailers licensed pursuant to said article.
(2) A licensee may by contract approved by the commissioner
receive deliveries of alcoholic liquor from a retail liquor
store, and the provisions of sections twelve and thirteen,
article six of this chapter shall not apply to the transportation
of such alcoholic liquor.
(b) In all reports filed under section sixteen, article
fifteen, chapter eleven of this code, retail licensees licensed
under the provisions of article three-a of this chapter shall
separately identify the amount of sales tax on sales of liquor to
licensees in such manner as the tax commissioner shall require.
(c) Notwithstanding the provisions of section thirty, article fifteen, chapter eleven of this code to the contrary,
the amount of such sales taxes collected by the tax commissioner
shall be deposited in a revolving fund account in the state
treasurer's office, designated the "drunk driving prevention
fund", and administered by the commission on drunk driving
prevention, subject to appropriations by the Legislature.