SB172 SUB1
Senate Bill 172 History
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COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 172
(By Senator Kessler (Mr. President))
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[Originating in the Committee on the Judiciary;
reported February 26, 2013.]
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A BILL to amend and reenact §11-16-3 and §11-16-8 of the Code of
West Virginia, 1931, as amended, all relating to the
Nonintoxicating Beer Act generally; expanding the definition
of "person" for purposes of holding a nonintoxicating beer
distributorship; allowing trusts, limited liability companies
and associations to hold a distributor's license; and
requiring certain disclosures by applicants that are trusts,
limited liability companies or associations.
Be it enacted by the Legislature of West Virginia:
That §11-16-3 and §11-16-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-3. Definitions.
For the purpose of this article, except where the context clearly requires differently:
(1) "Brewer" or "manufacturer" means any person, firm,
association, partnership or corporation manufacturing, brewing,
mixing, concocting, blending, bottling or otherwise producing or
importing or transshipping from a foreign country nonintoxicating
beer for sale at wholesale to any licensed distributor.
(2) "Brewpub" means a place of manufacture of nonintoxicating
beer owned by a resident brewer, subject to federal regulations and
guidelines, a portion of which premises are designated for retail
sales.
(3) "Class A retail license" means a retail license
permitting the retail sale of liquor at a freestanding liquor
retail outlet licensed pursuant to chapter sixty of this code.
(4) "Commissioner" means the West Virginia Alcohol Beverage
Control Commissioner.
(5) "Distributor" means and includes any person jobbing or
distributing nonintoxicating beer to retailers at wholesale and
whose warehouse and chief place of business shall be within this
state. For the purpose of a distributor only, the term "person"
means and includes an individual, firm, trust, partnership, limited
partnership, limited liability company, association or corporation.
Any trust licensed as a distributor or any trust that is an owner
of a distributor licensee
, and the trustee or other persons in
active control of the activities of the trust relating to the distributor license, is liable for acts of the trust or its
beneficiaries relating to the distributor license that are unlawful
acts or violations of article eleven of this chapter
notwithstanding the liability of trustees in article ten, chapter
forty-four-d of this code.
(6) "Freestanding liquor retail outlet" means a retail outlet
that sells only liquor, beer, nonintoxicating beer and other
alcohol-related products, as defined pursuant to section four,
article three-a, chapter sixty of this code.
(7) "Nonintoxicating beer" means all cereal malt beverages or
products of the brewing industry commonly referred to as beer,
lager beer, ale and all other mixtures and preparations produced by
the brewing industry, including malt coolers and nonintoxicating
craft beers containing at least one half of one percent alcohol by
volume, but not more than nine and six-tenths of alcohol by weight,
or twelve percent by volume, whichever is greater. all of which are
hereby declared to be nonintoxicating and The word "liquor" as used
in chapter sixty of this code shall not be construed to does not
include or embrace nonintoxicating beer nor any of the beverages,
products, mixtures or preparations included within this definition.
(8) "Nonintoxicating beer sampling event" means an event
approved by the commissioner for a Class A retail licensee to hold
a nonintoxicating beer sampling authorized pursuant to section
eleven-a of this article.
(9) "Nonintoxicating beer sampling day" means any days and
hours of the week where Class A retail licensees may sell
nonintoxicating beer pursuant to sub-section (a)(1), section
eighteen of this article, and is approved, in writing, by the
commissioner to conduct a nonintoxicating beer sampling event.
(10) "Nonintoxicating craft beer" means any beverage obtained
by the fermentation of barley, malt, hops or any other similar
product or substitute and containing not less than one half of one
percent by volume and not more than twelve percent alcohol by
volume or nine and six-tenths percent alcohol by weight.
(11) "Original container" means the container used by the
brewer at the place of manufacturing, bottling or otherwise
producing nonintoxicating beer for sale at wholesale.
(12) "Person" means and includes an individual, firm,
partnership, limited partnership,
limited liability company,
association or corporation.
(13) "Resident brewer" means any person, firm, association,
partnership or corporation whose principal place of business is
within the state.
(14) "Retailer" means any person selling, serving, or
otherwise dispensing nonintoxicating beer and all products
regulated by this article, including, but not limited to, any malt
cooler,
malt coolers
at his or her established and licensed place
of business.
(15) "Tax Commissioner" means the Tax Commissioner of the
State of West Virginia or the commissioner's designee.
§11-16-8. Form of application for license; fee and bond; refusal
of license.
(a) A license may be issued by the commissioner to any person
who submits an application, therefore, accompanied by a license fee
and, where required, a bond, stating and states under oath:
(1) The name and residence of the applicant, the duration of
such residency, that the applicant has been a resident of the state
for a period of two years next preceding the date of the
application and that the applicant is twenty-one years of age. If
the applicant is a firm, association, partnership, limited
partnership, limited liability company or corporation, the
application shall include the residence of the members or officers
for a period of two years next preceding the date of such
application. Provided, That if any If a person, firm, partnership,
limited partnership, association or corporation limited liability
company, association, corporation or trust applies for a license as
a distributor, such person, or in the case of a firm, partnership,
limited partnership, or association, the members or officers
thereof limited liability company, association or trust, the
members, officers, trustees or other persons in active control of
the activities of the limited liability company, association or
trust relating to the license, shall state under oath that each has been a bona fide resident of the state for four years preceding the
date of such application.
If the applicant is a trust or has a
trust as an owner,
the trustees or other persons in active control
of the activities of the trust relating to the license shall
provide a certification of trust as described in section one-
thousand-thirteen, article ten, chapter forty-four-d of this code.
This certification of trust shall include the excerpts described in
subsection (e), section one-thousand-thirteen, article ten, chapter
forty-four-d of this code and shall further state, under oath, the
names, addresses, Social Security numbers and birth dates of the
beneficiaries of the trust and certify that the trustee and
beneficiaries are twenty-one years of age or older. If a
beneficiary is not twenty-one years of age, the certification of
trust must state that such beneficiary's interest in the trust is
represented by a trustee, parent or legal guardian who is twenty-
one years of age and who will direct all actions on behalf of such
beneficiary related to the trust with respect to the distributor
until the beneficiary is twenty-one years of age.
Any beneficiary
who is not
twenty-one years of age
or older shall have his or her
trustee, parent or legal guardian
include in the certification of
trust and
state under oath his or her name, address, Social
Security number and birth date.
(2) The place of birth of applicant, that he or she is a
citizen of the United States and of good moral character and, if a naturalized citizen, when and where naturalized. and, If the
applicant is a corporation organized or authorized to do business
under the laws of the state, the application must state when and
where incorporated, with the name and address of each officer and
that each officer is a citizen of the United States and a person of
good moral character. and if a firm, association, partnership or
limited partnership, If the applicant is a firm, association,
limited liability company, partnership, limited partnership, trust
or has a trust as an owner, the application shall provide the place
of birth of each member of the firm, association, partnership or
limited partnership and that each member limited liability company,
partnership or limited partnership and of the trustees,
beneficiaries or other persons in active control of the activities
of the trust relating to the license and that each member or
trustee, beneficiary or other persons in active control of the
activities of the trust relating to the license is a citizen of the
United States and if a naturalized citizen, when and where
naturalized, each of whom must qualify and sign the application.
Provided, That The requirements as to residence shall do not apply
to the officers of a corporation which shall apply applying for a
retailer's license but the officers, agent or employee who shall
manage and be in charge manages and is in charge of the licensed
premises shall possess all of the qualifications required of an
individual applicant for a retailer's license including the requirement as to residence;
(3) The particular place for which the license is desired and
a detailed description thereof;
(4) The name of the owner of the building and, if the owner is
not the applicant, that such the applicant is the actual and bona
fide lessee of the premises;
(5) That the place or building in which is proposed to do
business conforms to all applicable laws of health, fire and zoning
regulations applicable thereto, and is a safe and proper place or
building and is not within three hundred feet of any a school or
church measured from front door to front door, along the street or
streets. Provided, That This requirement shall does not apply to
a Class B license or to any a place now occupied by a beer licensee
so long as it is continuously so occupied. Provided, however, That
The prohibition against locating any such a proposed business in a
place or building within three hundred feet of any a school shall
does not apply to any a college or university that has notified the
commissioner, in writing, that it has no objection to the location
of any such a proposed business in a place or building within three
hundred feet of such the college or university;
(6) That the applicant is not incarcerated and has not during
the five years immediately preceding the date of said application
been convicted of a felony;
(7) That the applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed and
that no other person shall be is in any manner pecuniarily
interested therein during the continuance of the license; and
(8) That the applicant has not during five years next
immediately preceding the date of said the application had a
nonintoxicating beer license revoked.
(b)
In the case of an applicant that is trust or has a trust
as an owner, a distributor license may be issued only upon
submission by the trustees or other persons in active control of
the activities of the trust relating to the distributor license of
a true and correct copy of the written trust instrument to the
commissioner for his or her review. Notwithstanding any provision
of law to the contrary, the copy of the written trust instrument
submitted to the commissioner pursuant to this section is
confidential and is not a public record and is not available for
release pursuant to the West Virginia Freedom of Information Act
codified in chapter twenty-nine-b, article one of this code.
(c)
The provisions and requirements of subsection (a) of this
section are mandatory prerequisites for the issuance, and in the
event if any applicant fails to qualify under the same, the license
shall be refused. In addition to the information furnished in any
application, the commissioner may make such additional and
independent investigation of each applicant and of the place to be
occupied as deemed necessary or advisable and, for this reason, each and all applications, with license fee and bond, must be filed
thirty days prior to the beginning of any fiscal year. and If the
application is for an unexpired portion of any a fiscal year, the
issuance of license may be withheld for such reasonable time as
necessary for investigation.
(c) (d)
The commissioner may refuse a license to any applicant
under the provisions of this article if the commissioner shall be
is of the opinion:
(1) That the applicant is not a suitable person to be
licensed;
(2) That the place to be occupied by the applicant is not a
suitable place or is within three hundred feet of any school or
church measured from front door to front door along the street or
streets. Provided, That This requirement shall does not apply to
a Class B licensee or to any a place now occupied by a beer
licensee so long as it is continuously so occupied. Provided,
however, That The prohibition against locating any such place to be
occupied by an applicant within three hundred feet of any a school
shall does not apply to any a college or university that has
notified the commissioner, in writing, that it has no objection to
the location of any such place within three hundred feet; of such
college or university; or
(3) That the license should not be issued for reason of
conduct declared to be unlawful by this article.
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