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SB473 SUB1 Senate Bill 473 History

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Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 473

(By Senators Oliverio, Minard, Wells, White, Barnes, Yoder, Kessler and Sypolt)

____________

[Originating in the Committee on Finance;

reported February 25, 2008.]

____________


A BILL to repeal §60-1-5a of the Code of West Virginia, 1931, as amended; to repeal §60-3-25 of said code; to amend and reenact §60-1-5 of said code to amend said code by adding thereto four new sections, designated §60-4-2a, §60-4-2b, §60-4-2c and §60- 4-22a; to amend and reenact §60-4-3b and §60-4-22 of said code; to amend and reenact §60-6-1 of said code; to amend and reenact §60-8-1, §60-8-2, §60-8-3, §60-8-4, §60-8-6, §60-8-6a, §60-8-19, §60-8-20, §60-8-24, §60-8-28, §60-8-30 and §60-8-32 of said code; and to amend said code by adding thereto two new sections, designated §60-8-3a and §60-8-3b, all relating to sales of wine; adding and removing certain definitions; establishing application and reporting requirements for farm wineries seeking a waiver of raw product quotas and import restrictions; defining "off-farm location" to mean a West Virginia farm or winery or a farm in a contiguous state; limiting the duration of waivers; providing for winery and farm winery license to manufacture and sell; deleting provisions prohibiting wholesaler's representatives or their spouses from contributing to political party campaign funds; authorizing wine specialty shops to conduct wine sampling events and wine-tasting events without obtaining a separate license; deleting provisions relating to wine tasting and wine sampling licenses; limiting direct shipping licenses to wineries or farm wineries producing twenty thousand gallons of wine or less per year; exempting from payment of the liter tax any winery or farm winery producing twenty thousand gallons of wine or less per year; providing that where a supplier or direct shipper does not have a minimum nexus with this state, the purchaser of wine from the supplier or direct shipper is responsible for reporting, collecting, remitting and paying taxes on the wine sold to the Tax Commissioner; adopting language relating to disposition of wine tax revenues; decreasing the cost and duration of wine brand and label registration; requiring the Alcohol Beverage Control Commissioner to propose rules for promulgation setting standards for wine brand and label review and registration; creating a limited wine retailer license; and allowing wine manufacturers, suppliers and distributors to agree in writing to a period of less than ninety days for termination of a distribution agreement.

Be it enacted by the Legislature of West Virginia:
That §60-1-5a of the Code of West Virginia, 1931, as amended, be repealed; that §60-3-25 of said code be repealed; that §60-1-5 of said code be amended and reenacted; that said code be amended by adding thereto four new sections, designated §60-4-2a, §60-4-2b, §60-4-2c and §60-4-22a;that §60-4-3b and §60-4-22 of said code be amended and reenacted that §60-6-1 of said code be amended and reenacted; that §60-8-1, §60-8-2, §60-8-3, §60-8-4, §60-8-6, §60-8-6a, §60-8-19, §60-8-20, §60-8-24, §60-8-28, §60-8-30 and §60-8-32 of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §60-8-3a and §60-8-3b, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§60-1-5. Definitions.
(a) For the purposes of this chapter:
(1) "Agency" means a drugstore, grocery store or general store designated as a retail distributor of alcoholic liquor by the West Virginia Alcohol Beverage Control Commissioner.
(2) "Alcohol" shall mean means ethyl alcohol whatever its origin and shall include includes synthetic ethyl alcohol but not denatured alcohol.
(3) "Alcoholic liquor" includes alcohol, beer, wine and spirits and any liquid or solid capable of being used as a beverage, but does not include nonintoxicating beer.
(4) "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.
(5) "Brewery" means an establishment where beer is manufactured or in any way prepared.
(6) "Broker" means a person appointed, in writing, to represent a distiller or manufacturer of alcoholic liquors in this state.

(7) "Commissioner" or "commission" means the West Virginia Alcohol Beverage Control Commissioner.
(8) "Complimentary sample" means a serving of not more than one ounce of alcoholic liquors or beer.
(9) "Distillery" means an establishment where alcoholic liquor other than wine or beer is manufactured.
(10) "Farm winery" means an establishment which:
(A) Manufactures, in any year, no more than fifty thousand gallons of:
(i) Table wine and/or nonfortified dessert wine exclusively by natural fermentation from grapes, other fruits, honey or other agricultural products containing sugar;
(ii) Port, sherry and Madeira wine matured in wooden barrels or casks, the alcohol content of which does not exceed twenty-two percent by volume; or
(iii) Any combination of subparagraphs (i) and (ii) of this paragraph;
(B) Grows or produces at least twenty-five percent of the raw products used to make wine on the premises of the farm winery; and
(C) Imports no more than twenty-five percent of the raw products used to make the wine from any source outside the state in which the farm winery is located.
(11) "Intoxicated" means impairment of a person's faculties due to alcohol, drugs or other substances to the point that the person's physical or mental control or both are markedly diminished.
(12) "Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor.
(13) "Manufacturer" means any person engaged in the manufacture of any alcoholic liquor and includes, among others, distillers, rectifiers, wine makers and brewers.
(14) "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 subdivision five, section two three, article sixteen, chapter eleven of this code.
(15) "Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor.
(16) "Person" means an individual, firm, partnership, limited partnership, limited liability company, corporation or voluntary association.
(17) "Public place" means 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" does not mean or include any of the places named in this subdivision 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.
(18) "Sale" means any transfer, exchange or barter in any manner or by any means, for a consideration, and includes all sales made by a principal, proprietor, agent or employee.
(19) "Selling" includes solicitation or receipt of orders; possession for sale; and possession with intent to sell.
(20) "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, bourbon, scotch, rye vodka, tequila, cordials and gin.
(21) "State liquor store" means a store established and operated by the commissioner under this chapter for the sale of alcoholic liquor in the original package for consumption off the premises.
(22) "Wine" shall mean means 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.
"Original package" shall mean any closed or sealed container or receptacle used for holding alcoholic liquor.
"Sale" shall mean 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.
"Selling" shall include 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.
(23) "Winery" shall mean means an establishment where wine is manufactured or in any way prepared. For purposes of this chapter, except where the contrary is expressly indicated, the term "winery" includes farm wineries.
"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.
(b) The definitions contained in subsection (a) of this section are to be read congruently with the definitions contained in article sixteen, chapter eleven of this code.
ARTICLE 4. LICENSES.
§60-4-2a. Off-farm location permits; application; duration.
(a) Notwithstanding the provisions of section five, article one of this chapter, if a farm winery licensee has planted on the farm winery premises young, nonbearing plants to be used to make its wine, it may file with the commissioner a signed and sworn application, along with supporting evidence, for permission to operate or to use raw products from an off-farm location within the State of West Virginia or any contiguous state.
(1) The application, on a form provided by the commissioner, shall include the following information:
(A) The type and number of the new plants planted on the farm winery premises;
(B) The date on which the plants were planted on the premises of the farm winery;
(C) The date on which the plants may reasonably be expected to come into full production; and
(D) The amount of produce reasonably expected to result when the plants come into full production.
(2) The commissioner may not consider the application unless it is accompanied by written findings of the Commissioner of Agriculture supporting the assertions in the application. The applicant has the burden of proving that the matters asserted in the application are true.
(3) After considering the application and the evidence, the commissioner, after consultation with the Commissioner of Agriculture, may permit the farm winery to operate or use products from one off-farm location to make wine in an amount equal to the amount reasonably expected to be produced when the nonbearing fruit plants planted on the farm winery come into full production. (4) The permit shall state on its face the amount of the produce or juice the farm winery licensee may obtain from the off-farm location and the duration of the permit.
(5) Any permit issued under this subsection is valid only until the date on which the commissioner, in consultation with the Commissioner of Agriculture, has determined the plants on the farm winery premises are expected to come into full production.
(b) The commissioner shall propose legislative rules for promulgation in accordance with the requirements of article three, chapter twenty-nine-a of this code setting out information to be included in applications, grounds for granting permits and any other matters necessary to implement the provisions of this section.
§60-4-2b. Waiver of import restrictions; application; duration.

(a) In the event of unusual climatic or other conditions adversely affecting a farm winery's ability to obtain at least seventy-five percent of the raw products it uses to make wine from within the state in which it is located, a farm winery may file with the commissioner a signed and sworn application, along with supporting evidence, for a waiver of the prohibition against importing from another state more than twenty-five percent of the raw products it uses to make wine.
(b) The application, on a form provided by the commissioner, shall include the following information:
(1) The nature of the unusual climatic or other conditions which prevent the licensee from obtaining the necessary raw products within this state;
(2) The licensee's efforts to obtain the necessary raw products within this state; and
(3) The length of time the adverse conditions may reasonable be expected to continue.
(c) The commissioner may not consider the application unless it is accompanied by written findings of the Commissioner of Agriculture supporting the assertions in the application. The applicant has the burden of proving that the agricultural products of the type normally used by the licensee are not available from any other source within the state.
(d) After considering the application and the evidence, the commissioner may waive the prohibition against importing more than twenty-five percent of the raw products it uses to make wine and issue a permit allowing the licensee to import more than twenty-five percent of the grapes, grape juice, fruits, fruit juices, honey or other agricultural products necessary to produce its wine from another state.
(e) The permit shall state the percentage of raw products the licensee is permitted to import from another state. The commissioner may not issue a permit under this subsection for more than ninety days, and no more than two permits may be issued in any calendar year.
(f) The commissioner shall propose legislative rules for promulgation in accordance with the requirements of article three, chapter twenty-nine-a of this code setting out information to be included in applications, grounds for granting waivers and any other matters necessary to implement the provisions of this section.
§60-4-2c. Annual farm winery report; form; rules
.
(a) On or before the first of July of each year, each farm winery shall report to the commissioner the following information with regard to the raw products used to produce its wine in the previous year:
(1) The total amount of produce used in making wine grown on the farm winery premises;
(2) The total amount of produce or juice obtained from an off-farm location pursuant to section two-a of this article; and
(3) The total amount of produce or juice used in making wine obtained from another state.
(b) Each farm winery shall also report to the commissioner the total number of gallons of wine produced by the licensee in the preceding year.
(c) The commissioner may require each farm winery to report additional information.
(d) The commissioner shall develop a form for the report required by this section and shall propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-a of this code governing implementation of this section.
§60-4-3b. Winery and farm winery license to manufacture and sell.
(a) Sales of wine. -- An operator of A winery or farm winery may offer wine produced by the winery or farm winery for retail sale on the premises to customers from the winery or farm winery for consumption off the premises only. Except for free complimentary samples offered pursuant to section one, article six of this chapter, a winery or farm winery may not allow customers are prohibited from consuming any to consume, taste or sample wine on the premises of the winery or farm winery, unless such the winery or farm winery has obtained a multicapacity winery or farm winery license pursuant to section three, article eight of this chapter.
(b) Retail sales. -- Every licensed winery or farm winery holding a multicapacity winery license or otherwise licensed to sell wine at retail, by direct shipping or as a supplier shall comply with the provisions of articles three, four and eight of this chapter as applicable to wine retailers, wineries and suppliers when properly licensed in such capacities each capacity in which the winery or farm winery is licensed..
(c) Payment of taxes and fees. -- The A winery or farm winery holding a multicapacity winery license or otherwise licensed to sell wine at retail, by direct shipping or as a supplier shall pay all required taxes and fees required of licensed wine retailers and meet comply with applicable licensing provisions as required by requirements of this chapter and by rule the rules of the commissioner. Each winery or farm winery acting as its own supplier shall submit to the Tax Commissioner the liter tax for all sales at the winery or farm winery each month, as provided in article eight of this chapter.
(d) Advertising. -- A winery or farm winery may advertise a particular brand or brands and the price of wine produced by it and the price of the wine produced, subject to federal requirements or restrictions.
(e) Limitations on licensees. --
(1) A winery or farm winery must maintain shall obtain separate winery or farm winery licenses to act as a wine supplier, retailer and or direct shipper licenses when acting in one or more of those capacities and must pay all associated license fees, unless such the winery or farm winery holds obtains a multicapacity winery license issued pursuant to the provisions of subdivision (12), subsection (b), section three, article eight of this chapter.
(2) A winery or farm winery, if holding the appropriate licenses or a multicapacity winery or farm winery license, may act as its own supplier; retailer for off-premises consumption of its wine as specified in section two, article six of this chapter; private wine restaurant; and direct shipper for wine produced by the winery or farm winery.
(3) Except as provided in subdivision (2) of this subsection, all wineries must shall use a distributor to distribute and sell their wine in the this state, except for farm wineries unless the winery holds a direct shipper license pursuant to section six-a, article eight of this chapter. Each farm winery self-distributing its wine pursuant to subdivision (2) of this subsection or section six, article six of this chapter or holding a multicapacity winery license shall submit to the Tax Commissioner the liter tax for and a report of all wine sales each month, as provided in section four, article eight of this chapter.
(4) No more than one winery or farm winery license may be issued to a single person or entity. and
(5) No person may hold both a winery and a farm winery license.
§60-4-22. Wholesale representative's licenses.
(a) A No person firm or corporation may not be, or act or serve as an agent, broker representative or salesman salesperson selling or offering to sell or soliciting or negotiating the sale of alcoholic liquor to the commission commissioner or to any licensed West Virginia distributor licensed pursuant to article eight of this chapter without first obtaining a license so to do in accordance with the provisions of pursuant to this section.
(b) Only salaried employees, agents or salespersons of distilleries and manufacturers producers or processors of alcoholic liquor or authorized brokers may be licensed hereunder and no person may be licensed hereunder who sells or offers to sell alcoholic liquor to the commission or any distributor on a fee or commission basis as wholesale representatives pursuant to this section.
(c) A wholesale representative's license may be granted only upon verified application on a form provided by the commissioner.
(d) In addition to any other information the commissioner may require, each applicant shall state on the license application form:
(1) His or her name and residence address;
(2) The name and business address of the manufacturer, distributor or broker the applicant represents;
(3) The name and address of each additional manufacturer or distributor of alcoholic liquors or broker the applicant represents;
(4) The monetary total of all alcoholic liquor sales, if any, made by the applicant to the commissioner or to any licensed West Virginia distributor during the fiscal year preceding the year for which the applicant is seeking a license;
(5) The monetary total of the gross income received by the applicant on the sales, if any, during the fiscal year preceding the year for which the applicant is seeking a license;
(6) Whether the applicant made or gave during the previous fiscal year preceding the year, voluntarily or on request, any gift, contribution of money or property to the commissioner, any employee of the commissioner, any state, county or municipal official or any employee of any distributor licensed pursuant to article eight of this chapter;
(7) The nature of any relationship by blood or marriage of the applicant or his or her spouse to any elected or appointed state, county or municipal official; and
(8) Any information necessary to enable the commissioner to request a criminal history records check of the applicant.
(e) The commission shall be the licensing authority and commissioner may grant a wholesale representative's license to persons of good moral character the license herein provided and may refuse to grant such a license to any person convicted of a felony or an alcohol-related criminal offense within ten years prior to his or her license application. for such license
(f) The commissioner may not grant a license to:
(A) Any elected or appointed state, county or municipal official;
(B) Any person who is the spouse, father, mother, son, daughter, brother, sister, uncle, aunt, nephew or niece of any elected or appointed state
, county or municipal official;
(C) The spouse of any person who is the father, mother, son, daughter, brother, sister, uncle, aunt, nephew or niece of any elected or appointed state, county or municipal official;
(D) Any member of the Legislature or his or her spouse; or
(E) Any member or officer of any political party executive committee of this state or his or her spouse.
(g) The commissioner may refuse to grant, suspend or revoke licenses on other grounds as provided by legislative rule.
(h) A license issued under this section Licenses shall be on an annual basis for the period is valid from the first day of July until the thirtieth day of June next of the following year. New and renewal licenses shall be granted only upon verified application to the commission presented on forms provided by the commission.
(i) Any person representing more than one producer broker, manufacturer or distributor of alcoholic liquors shall file a separate application and shall obtain a separate license for each such representation entity he or she represents.
(j) (1) The annual license fee shall be for a license issued pursuant to this section is one hundred dollars for each company represented by the applicant. The fee for any license granted for the remainder that portion of any license year between the first day of January and the thirtieth day of June of the same calendar year shall be is fifty dollars.
No person who is the father, mother, son, daughter, brother, sister, uncle, aunt, nephew or niece of a member of the commission or of any elected or appointed state official, county official or municipal official; or who is the spouse of any such person so related to a member of the commission or to any elected or appointive state official, county official or municipal official; be granted a license. No member of the Legislature or the spouse; of any such member may be granted a license. Nor may any member or officer of any political party executive committee of this state or the spouse of any such member or officer be granted a license.
In addition to all other information which the commission may require to be supplied on the license application forms, each applicant shall be required to state his name and his residence address and the name and business address of the producer, manufacturer or distributor he represents; the name and address of each additional producer, manufacturer or distributor of alcoholic liquors he represents; the monetary total of all alcoholic liquor sales, if any, made by him to the commission or to any distributor licensed pursuant to article eight of this chapter during the fiscal year preceding the license year for which he is seeking a license; the monetary total of the gross income received by him on such sales, if any, during such fiscal year; whether he has, during such fiscal year, made or given, voluntarily or on request, any gift, contribution of money or property to any member or employee of the commission or of any distributor licensed pursuant to article eight of this chapter or to or for the benefit of any political party committee or campaign fund; and his relationship, if any, by blood or marriage, to any member of the commission or to any elected or appointive state official, county official or municipal official. All such applications shall be verified by oath of the applicant and shall be prepared and filed in duplicate
(k) All such applications and a current list of all wholesale representative licensees hereunder shall be are matters of public record and shall be available to for public inspection, at the commission's commissioner's offices at the State Capitol to the extent required by article one, chapter twenty-nine-b of this code.
(l) A person licensed
under this section may not sell or offer to sell alcoholic liquor to the commissioner or to any distributor on a fee or commission basis.
(m) Every A licensee who shall advise the commissioner in writing within thirty days if he or she ceases to be an agent, broker representative or salesman salesperson as herein contemplated, shall so advise the commission in writing and such person's of a manufacturer, distributor or broker. Upon receipt of the notice, the commissioner shall immediately remove the licensee's name shall be immediately removed from the license list and his or her license shall be canceled and terminated cancel and terminate the license.
(n) All persons licensed under this section shall be authorized representatives of the brokers, wineries, farm wineries, distilleries, mini-distilleries or manufacturers producers or processors of alcoholic liquor they represent. A licensed person licensee may not share, divide or split his or her salary with any person other than his wife or her spouse or some legal dependent. nor may he or she make any contribution to any political party campaign fund in this state
(o) All wholesale representative licensees shall be are subject to all other provisions of this chapter and to the lawful rules promulgated by the commission commissioner. Licenses may be refused, suspended or revoked by the commission commissioner for cause, including any of the applicable grounds of revocation specified in section nineteen of this article. Provisions of this article relating to notice, hearing and appeals shall, to the extent applicable, govern procedures on suspension and revocation of licenses hereunder under this section.
(p) Any person firm or corporation violating any provision of this section, including knowingly making of any false statement in a verified application for a license, shall be is guilty of a misdemeanor offense and shall, upon conviction thereof, shall be fined not exceeding more than one thousand dollars or imprisoned in jail for not exceeding more than twelve months, or be subject to both such fine and imprisonment in the discretion of the court.
§60-4-22a. Broker's license.
(a) No person may be, act or serve as a broker to sell, offer to sell, solicit or negotiate the sale of spirits to the commissioner on behalf of a manufacturer without first obtaining a broker's license pursuant to this section.
(b) A broker's license may be granted only upon verified application on a form provided by the commissioner.
(c) In addition to any other information the commissioner may require, the applicant for a broker's license shall state on the application form:
(1) The applicant's name and business address;
(2) The name and business address of each manufacturer the applicant represents;
(3) The monetary total of all alcoholic liquor sales, if any, made by the applicant to the commissioner during the fiscal year preceding the year for which the applicant is seeking a license;
(4) The monetary total of the gross income received by the applicant on any sales, if any, during the fiscal year preceding the year for which the applicant is seeking a license; and
(5) Whether the applicant made or gave during the previous fiscal year preceding the year, voluntarily or on request, any gift, contribution of money or property to the commissioner, to any employee of the commissioner or to any state, county or municipal official.
(d) Along with the application, the applicant shall provide the commissioner with:
(1) A copy of each written letter of appointment designating the broker as the representative of a distiller or manufacturer;
(2) A copy of the applicant's West Virginia business license; and
(3) Proof that the applicant, if a corporation or limited liability company, has registered with the office of the Secretary of State.
(e) The commissioner may refuse to grant, suspend or revoke a broker's license on grounds to be set out in a legislative rule proposed for promulgation pursuant to article three, chapter twenty-nine-a of this code.
(f) A license issued pursuant to this section is valid from the first day of July in the year of issuance until the thirtieth day of June in the following calendar year.
(g) The annual fee for a broker's license is two thousand five hundred dollars per year.
(h) All applications and a current list of all licensed brokers are matters of public record and shall be available for public inspection at the commissioner's offices to the extent required by article one, chapter twenty-nine-b of this code.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-1. When lawful to possess, use or serve alcoholic liquors.
The provisions of this chapter may do not prevent:
(1) A person from keeping and possessing lawfully acquired alcoholic liquors in his or her residence for his or her personal use or the personal use of himself or herself, his or her family, his or her employee employees or his or her guests; if the alcoholic liquors have been lawfully acquired by him or her
(2) A person or his or her family or employee from giving or serving such alcoholic liquors to guests in the his or her residence, when the gift or service is not for the purpose of evading the provisions of this chapter;
(3) The holder of a winery or a farm winery license from serving complimentary samples of its wine in moderate quantities for tasting on the winery or the farm winery premises; and or
(4) The holder of a distillery or a mini-distillery license from serving complimentary samples of its alcoholic liquor in moderate quantities for tasting on the distillery or the mini-distillery premises.
ARTICLE 8. SALE OF WINES.
§60-8-1. Construction and application of article.
(a) Every supplier must use a distributor to distribute wine for retail sale in this state, except for such sales that occur by wineries or farm wineries or suppliers holding a direct shipper's license or farm wineries holding a multicapacity farm winery license The provisions of part II of this article shall have general application apply generally to the distribution and retail sale of wine in this state. The provisions of part III of this article shall relate solely to the distribution and the regulation of suppliers and distributors of such wines as may be permitted to be sold at retail pursuant to the provisions of this article. The provisions of part IV of this article shall relate solely to the retail sale of wine. in grocery stores, as the term "grocery store" is defined in this article, and the retail sale of wine in wine specialty shops as defined in this article
(b) In the event of any inconsistency of any between the provisions of part II and the provisions of either part III or part IV of this article, the provisions of either part III or part IV shall prevail. to the extent of such inconsistency
(b) (c) 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
(d) To the extent that the provisions of other articles of this chapter exclusive of this article may be given application without creating an inconsistency with the provisions of this article, the provisions of the other articles of this chapter exclusive of this article, shall apply to the same extent as if this article did not exist.
§60-8-2. Definitions.
Unless the context in which used clearly requires a different meaning, as used in this article:
(1) "Case" means any combination of packages containing not more than nine liters of wine.
(2) "Commissioner" or "commission" means the West Virginia Alcohol Beverage Control Commissioner.
(3) "Consumer" means a natural person who is age twenty-one or older and does not hold a license issued pursuant to this article.
(5) "Direct shipper" means a licensed winery or farm winery authorized to ship wine directly to an adult West Virginia consumer pursuant to section six-a of this article for the consumer's personal use and consumption and not for resale.
(4) "Distributor" means any a person whose who:
(A) Has his or her principal place of business is within the territorial boundaries of the State of West Virginia;
(B) Who makes Purchases wine, nonfortified dessert wine, port, sherry or Madeira wines from a supplier;
(C)(i) To sell or distribute Sells table wine to retailers, grocery stores, private wine bed and breakfasts, private wine restaurants, private wine spas or private clubs; or wine specialty shops and that
(ii) Sells or distributes nonfortified dessert wine, port, sherry and Madeira wines to wine specialty shops, private wine restaurants or private clubs or retailers under authority of this article; and
(D) Maintains a warehouse in this state for the distribution of wine.
(6) "Fortified wine" shall mean means any wine to which brandy or other alcohol has been added. and shall include For purposes of this article, the term "fortified wine" includes nonfortified dessert wines which are not fortified having have an alcohol content by volume of at least fourteen and one-tenths percent and not exceeding sixteen percent.
(7) "Grocery store" means any retail establishment, commonly known as a grocery store, supermarket, delicatessen, caterer or party supply store where which sells food, food products and supplies for the table are sold for consumption off the premises with average monthly sales (exclusive of excluding sales of wine) of not less than five hundred dollars and an average monthly inventory (exclusive of excluding inventory of wine) of not less than three thousand dollars. The term "grocery store" shall also include and mean includes a separate and segregated portion of any other retail store which is dedicated solely exclusively to the sale of food, food products and supplies for the table for consumption off the premises with average monthly sales with respect to such separate or segregated portion (exclusive of excluding sales of wine) of not less than three thousand dollars and an average monthly inventory (exclusive of excluding inventory of wine) of not less than three thousand dollars.
(8) "Licensee" means the holder of a license granted under the provisions of this article or chapter.
(9) "Limited retailer" means any person licensed to sell only West Virginia wine produced by a farm winery for off premises consumption and authorized to provide wine samplings under this article.
(10) "Nonfortifed dessert wine" means wine to which no alcohol has been added but which has an alcohol content by volume of at least fourteen and one-tenths percent and not more than sixteen percent.
(11) "Private wine bed and breakfast" means any person who operates a business, with the sole purpose of which is providing, in a residential or country setting, lodging, such as a hotel, motel, inn or other such establishment properly zoned as to its municipality or under local ordinances lodging and meals to its customers in the course of their stay at the establishment, which: business also
(1) Is a partnership, limited partnership, corporation, unincorporated association or other business entity; which as part of its general business purpose
(A) Provides meals on its premises to its members and their guests as part of its general business purpose;
(2) (B) Is licensed under the provisions of this article as to all of its premises or as to a separate segregated portion of its premises to serve wine on the premises to its members and their guests when such sale accompanies in conjunction with the serving of food or meals; and
(3) (C) Admits only duly elected and approved dues-paying members and their guests while in the company of a member and does not admit the general public.
(12) "Private wine restaurant" means a restaurant which person who operates a business, the principal purpose of which is serving meals on its premises to members and their guests and;
(1) Is a partnership, limited partnership, corporation, unincorporated association or other business entity which has as its principal purpose the business of serving meals on its premises to its members and their guests;
(2) (A) Is licensed under the provisions of this article as to all of its premises or as to a separate segregated portion of its premises to serve wine on its premises to its members and their guests when such sale accompanies in conjunction with the serving of food or meals; and
(3) (B) Admits only duly elected and approved dues-paying members and their guests while in the company of a member and does not admit the general public. Private clubs that meet satisfy the private wine restaurant requirements numbered (1), (2) and (3) in this definition of paragraphs (A) and (B) of this subdivision shall be considered private wine restaurants.
(13) "Private wine spa" means any a person who operates a business, with the sole purpose of which is providing commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services and relaxation, and may be also including a licensed massage parlor or a salon with licensed beauticians or stylists and which: business also
(1) Is a partnership, limited partnership, corporation, unincorporated association or other business entity which as part of its general business purpose;
(A) Provides meals on its premises to its members and their guests as part of its general business purpose;
(2) (B) Is licensed under the provisions of this article as to all of its premises or as to a separate segregated portion of its premises to serve up to two glasses of wine on the premises to its members and their guests when such sale accompanies in conjunction with the serving of food or meals; and
(3) (C) Admits only duly elected and approved dues-paying members and their guests while in the company of a member and does not admit the general public.
(14) "Retailer" means any person licensed to sell wine at retail to the public at his or her established place of business for off-premises consumption and who is licensed to do so under authority of this article.
(15) "Supplier" means any manufacturer, producer, processor, winery, farm winery, national distributor or other supplier provider of wine who which sells or offers to sell or solicits or negotiates the sale of wine to any licensed West Virginia distributor.
(16) "Table wine" means any alcoholic beverage obtained by the natural fermentation of grapes, other fruits, honey or other agricultural products containing sugar to which no alcohol has been added and which has an alcohol content by volume of not more than fourteen percent.
(17) "Tax" includes within its meaning includes any interest, additions to tax and penalties.
(18) "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.
(19) "Varietal wine" means any wine labeled according to the grape variety from which such the wine is made.
(20) "Vintage wine" or "vintage-dated wine" means wines from which the grapes used to produce such the wine are harvested during a particular year or wines produced from the grapes of a particular harvest in a particular region of production.
(21) "Wine" means any alcoholic beverage obtained by the natural fermentation of the natural content of grapes, other fruits or honey or other agricultural products containing sugar and to which no alcohol has been added, and shall include including table wine. and shall exclude The term "wine" does not include fortified wine and shall also exclude any product defined as or embraced within the definition of or nonintoxicating beer under the provisions of article sixteen, chapter eleven of this code.
(22) "Wine sampling" means a gathering at which a wine specialty shop or farm winery may serve up to three complimentary samples of wine to any one consumer in one day as provided in section three of this article.
(23)
"Wine specialty shop" means a retailer who: shall deal
(A)(i) Deals principally in the retail sale of table wine, nonfortified dessert wines, wine accessories and food or foodstuffs normally associated with wine; and
(1) Who shall maintain (ii) Maintains a representative number of such wines for sale in his or her wine inventory which are designated by label as varietal wine, vintage, generic and/or according to region of production; and the inventory shall contain
(iii) Maintains not less than fifteen percent of its wine inventory in vintage or vintage-dated wine by actual bottle count. and (2)
(B) A wine speciality shop may, any other provisions of this code to the contrary notwithstanding, may maintain an inventory of port, sherry and Madeira wines, matured in wooden barrels or casks and having an alcoholic content of not more than twenty-two percent alcohol by volume. and which have been matured in wooden barrels or casks
(24) "Wine taster's club" means an organization affiliated with a wine specialty shop or farm winery, having at least fifty duly elected or approved dues-paying members in good standing who gather to taste complimentary portions of wine as provided in section three of this article. Every member of a wine taster's club must be twenty-one years of age or older.
(25) "Wine tasting" means a gathering at which a wine specialty shop or farm winery serves members of a wine taster's club and their guests complimentary portions of wine of no more than four ounces each in the manner provided in section three of this article.
§60-8-3. Annual licenses; fees.
(a) The commissioner may issue and collect the stated annual fee for the following licenses:
(1) Supplier's license. -- A supplier's license authorizes the licensee to sell wine to a licensed West Virginia distributor for resale in this state. The fee for a supplier's license is one hundred fifty dollars per year.
(2) Distributor's license. -- A distributor's license authorizes the licensee to sell wine to licensed retailers, wine specialty shops, private wine bed and breakfasts, private wine restaurants, private wine spas and private clubs in this state for resale as provided in this article. The fee for a distributor's license is twenty-five hundred dollars per year. A distributor must obtain a separate license and pay a separate annual license fee of twenty-five hundred dollars for each separate warehouse or other facility from which the distributor sells, transfers or delivers wine.
(3) Retailer's license. -- A retailer's license authorizes the licensee to sell wine to consumers for consumption off the licensed premises and may be issued only to the proprietor or owner of a grocery store or wine specialty shop, as those terms are defined in section two of this article. The fee for a retailer's license is one hundred fifty dollars per year. A licensee who owns or operates more than one retail establishment at which wine is sold must obtain a separate license and pay a separate annual license fee of one hundred fifty dollars for each separate retail establishment.
(4) Wine specialty shop license. -- (A) A wine specialty shop license authorizes the licensee to:
(i) Sell table wines, nonfortified dessert wines, and port, sherry and Madeira wines at retail for consumption off the licensed premises; wine accessories; wine glasses; wine magazines and educational materials and other wine-related products;
(ii) To conduct wine-tasting events by forming a wine taster's club. Attendance at wine-tasting events is limited to wine tasting club members and their guests twenty-one years of age or older. The wine taster's club may meet no more than once per week either on the licensed premises of the wine specialty shop when closed to the general public or in a separate segregated facility to which the general public is not admitted for the purpose of partaking of complimentary portions of wine; and
(iii) To conduct wine-sampling events on the licensed premises during regular business hours. Any person serving complimentary samples must be twenty-one years of age and an authorized representative of a licensed wine specialty shop, winery, distributor or supplier. Distributor and supplier representatives attending wine-sampling events must be licensed by the commissioner. The wine specialty shop must notify and secure permission from the commissioner for all wine-sampling events one month prior to the event. Wine-sampling events may not exceed six hours per calendar day and all wines served must have been purchased from a licensed farm winery or a licensed distributor.
(B) The fee for a wine specialty shop license is four hundred dollars per year.
(C) A winery or farm winery with a wine speciality shop license or a farm winery with a multicapacity winery license must comply with all requirements of this subdivision relating to wine sampling and wine tasting events.
(5) Private wine bed and breakfast license. -- A private wine bed and breakfast license entitles the licensee to sell wine to a member or a guest accompanying a member for consumption on the licensed premises in conjunction with the serving of food or meals costing at least ten dollars, excluding beverage purchases, taxes, gratuity or other fees. The fee for a private wine bed and breakfast license is one hundred fifty dollars per year. A licensee who owns or operates more than one private wine bed and breakfast at which wine is sold must obtain a separate license and to pay a separate annual license fee of one hundred fifty dollars for each establishment.
(6) (A) Private wine restaurant license. -- A private wine restaurant license authorizes the licensee to sell wine to a member or a guest accompanying a member for consumption on the licensed premises in conjunction with the serving of food or meals costing at least ten dollars, excluding beverage purchases, taxes, gratuity or other fees. The fee for a private wine restaurant license is two hundred fifty dollars per year. A licensee who owns or operates more than one private wine restaurant at which wine is sold must obtain a separate license and pay a separate annual license fee of two hundred fifty dollars for each establishment.
(B) Private wine restaurant/private club retail license. -- The commissioner may issue a license authorizing a licensed private wine restaurant or a licensed private club to sell to a customer it verifies is twenty-one years of age or older up to two unopened bottles of wine, in a sealed bag approved by the commissioner, for consumption off the premises. A licensee selling wine pursuant to this paragraph may keep and maintain on its premises a supply of wine in such quantities as may be appropriate for the conduct of operations thereof. The fee for a license to sell wine pursuant to this paragraph is one hundred dollars per year in addition to any other fees required to be paid by the licensee.
(C) Private wine spa license. -- A private wine spa license authorizes the licensee to sell up to two glasses of wine to a member or a guest accompanying a member for consumption on the licensed premises in conjunction with the serving of food or meals costing at least ten dollars, excluding beverage purchases, taxes, gratuity or other fees. The fee for a private wine spa license is one hundred fifty dollars per year. A licensee who owns or operates more than one private wine spa at which wine is sold must obtain a separate license and pay a separate annual license fee of one hundred fifty dollars for each establishment.
(7) Direct shipper's license. -- A direct shipper's license authorizes a winery or farm winery farm winery, supplier or retailer to sell and ship up to two cases of wine each month directly to a West Virginia resident consumer for the consumer's personal use and consumption and not for resale. The fee for a direct shipper's license to ship table wine is one hundred fifty dollars per year. The fee for a direct shipper's license to ship nonfortified dessert wine, port, sherry or Madeira wines in addition to table wine is two hundred fifty dollars per year.
(8) Limited wine retailer license. -- A limited retailer license authorizes the licensee to sell wine produced by West Virginia farm wineries for consumption off the premises and to conduct wine samplings in accordance with the provisions of this article. The fee for a limited wine retailer license is twenty- five dollars. The fee for a limited retailer wine-sampling license is one hundred dollars. A limited wine retailer licensee who owns and operates more than one retail establishment at which wine is sold must obtain a separate limited wine retailer license and pay a separate annual license fee for each separate retail establishment. A limited wine-sampling license authorizes the licensee to conduct wine sampling events on the licensed premises during regular business hours. Any person serving complimentary samples must be twenty-one years of age and an authorized representative of the licensee. The licensee must notify and secure permission from the commissioner for all wine-sampling events one month prior to the event. Wine-sampling events may not exceed six hours per calendar day and all wines served must have been purchased from a licensed farm winery or a licensed distributor.
(8) (9) Multicapacity winery license. -- A multicapacity winery license authorizes a winery or farm winery to operate as a retailer, wine specialty shop, supplier and direct shipper and to conduct wine-tasting events and wine-sampling events without obtaining a separate license for each activity. A winery or farm winery must notify the commissioner at least thirty days before it conducts a wine-tasting or wine-sampling event to secure permission and must comply with all other requirements in this article governing wine-sampling and wine-tasting events. The fee for a multicapacity winery license is three hundred dollars per year.
§60-8-3a. General provisions relating to annual licenses; license restrictions.

(a) The licensing period for any license issued pursuant to section three of this article begins on the first day of July of each year and ends on the thirtieth day of June of the following year. If a license is granted for a lesser period, the license fee shall be computed semiannually in proportion to the remainder of the fiscal year.
(b) Wineries may advertise off premises as provided in section seven, article twenty-two, chapter seventeen of this code.
(c) A person may not:
(1) Engage in business as a winery, farm winery, supplier, distributor, retailer, limited wine retailer, private wine bed and breakfast, private wine restaurant, private wine spa or wine specialty shop without first obtaining a license from the commissioner or continue to engage in the activity after his or her license has expired, been suspended or revoked;
(2) Be licensed simultaneously as a distributor and as a retailer;
(3) Be licensed simultaneously as a supplier and as a retailer or limited wine retailer, except for the holder of a multicapacity winery license;
(4) Be licensed simultaneously as a supplier and as a private wine bed and breakfast, private wine restaurant or a private wine spa;
(5) Be licensed simultaneously as a distributor and as a private wine bed and breakfast, a private wine restaurant or a private wine spa;
(6) Be licensed simultaneously as a retailer or limited wine retailer and a private wine bed and breakfast, a private wine restaurant or a private wine spa;
(7) Be licensed simultaneously as a retailer or limited wine retailer and as a private club pursuant to article seven of this chapter;
(8) Be licensed simultaneously as a retailer or limited wine retailer pursuant to this article and as a Class A retail dealer in nonintoxicating beer pursuant to article sixteen, chapter eleven of this code: Provided, That a grocery store which is licensed as a Class A retail dealer in nonintoxicating beer may also be licensed as a retailer pursuant to this article if it maintains average monthly sales (excluding wine and nonintoxicating beer sales) which exceed the average monthly sales of nonintoxicating beer; or
(9) Serve or sell wine to any person under the age of twenty-one or in violation of any other provision of section twenty of this article.
(d) A private wine restaurant may also be licensed as a Class A retail dealer in nonintoxicating beer pursuant to chapter eleven of this code.
(e) A licensed private wine restaurant or a licensed private club may permit a person over twenty-one years of age to recork or reseal, using a tamper resistant cork, seal or bag approved by the commissioner, up to two separate bottles of unconsumed wine served in conjunction with food or a meal to its members and their guests as required by the provisions of this article.
(f) The commissioner may refuse a license to any applicant applying for a retailer, wine specialty shop, private wine bed and breakfast, private wine restaurant, private wine spa or a private club license if:
(1) The applicant is not a suitable person;
(2) The applicant's premises is not a suitable place for licensure; or
(3) The applicant's premises is located within three hundred feet of any school or church, measured from front door to front door along the street or streets: Provided, That the three hundred foot restriction does not apply to any place now occupied by a licensee, so long as it continues to be occupied continuously, or to any college or university that has notified the commissioner, in writing, that it has no objection to the location of the license within three hundred feet of the college or university premises.
(g) The commissioner shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code to implement the provisions of this article.
§60-8-3b. Special event licenses; fees.
(a) The commissioner may issue and collect the fees specified for the following special licenses:
(1) Fair or festival license. -- A special fair or festival license issued pursuant to this subdivision authorizes the licensee to sell wine at retail at any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission. The fee for a fair or festival license is two hundred fifty dollars per event.
(2) Winery fair and festival license. -- A winery fair and festival license authorizes a licensed winery or farm winery to exhibit, conduct wine sampling events and sell wine at retail for off-premises consumption at a festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission and is held on the premises of the winery or farm winery that manufactures the wine. The fee for the winery fair and festival license is fifty dollars per event.
(3) Fair and festival wine club license. -- A fair and festival wine club license may be issued in the name of a wine club organized by the fair or festival committee of the governing body of a municipality or county commission endorsing or sponsoring the fair or festival. The governing body shall designate a person to organize the wine club, under a name which includes the name of the fair or festival and the words "wine club". The licensee may not sell wine as provided in this subsection until the wine club has at least fifty dues-paying members, twenty-one years of age or older, who have been enrolled and to whom membership cards have been issued. Thereafter, new members may be enrolled and issued membership cards at any time during the period for which the license is issued. A wine club licensed under the provisions of this subdivision may sell wine at retail for off-premises consumption and serve complimentary samples, not to exceed eight ounces per serving, only to its members on the premises of the fair or festival in an area cordoned or segregated so as to be closed to the general public. The fee for a fair or festival wine club license is fifty dollars per event.
(4) Heritage fair and festival license. -- The commissioner may issue a special fair or festival license, free of charge, authorizing any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission and which is intended to celebrate the ancestry or heritage of a particular ethnic group to sell, serve for on-premises consumption and conduct sampling events of wine from a licensed winery or farm winery.
(5) One-day fund-raising license. -- The commissioner may issue a special one-day license, free of charge, to a duly organized, nonprofit corporation or association allowing the sale and serving of wine on the premises when raising money for athletic, charitable, educational or religious purposes. The licensee shall provide a letter to the commissioner listing the amount of wine donated by a licensed retailer, a distributor or a farm winery or purchased by the nonprofit or association for use during the event. Nothing in this subdivision authorizes a nonprofit corporation or association to purchase wine except as expressly provided in this chapter.
(b) Except where expressly authorized for a different period of time, a special event license may be issued for a term of not more than ten consecutive days.
(c) The commissioner shall designate the information to be contained in any application for a license pursuant to this section. The applicant must submit the application to the commissioner at least thirty days prior to the first day on which wine is to be sold.
(d) A fair or festival licensee is not required to obtain a separate license and pay a separate license fee for each separate location on the specified premises of a fair or festival at which wine is sampled or sold.
(e) The provisions of subsections (c) and (d), section twenty of this article prohibiting sales of wine to certain persons and prohibiting certain persons from serving wine apply to any license issued pursuant to this section.
(f) The holder of a license issued pursuant to this section is subject to all provisions of this article and to the rules of the commissioner relating to licenses generally and these requirements may not be waived by the commissioner: Provided, That the commissioner may by rule or by order waive or create exceptions to any requirement of notice or a hearing prior to revocation or suspension of any license issued pursuant to this section.
(g) The commissioner shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this section.
§60-8-4. Liter tax.
(a) There is hereby levied and imposed on all wine sold after the first day of July, two thousand seven, by suppliers to distributors a supplier to a licensed distributor, except wine sold to the commissioner, and including all wine sold and sent by a licensed direct shipper directly to a West Virginia resident consumer, adult residents from direct shippers except wine sold to the commissioner, a tax of twenty-six and four hundred six-thousandths cents per liter: Provided, That any wine sold by a winery or farm winery that produces no more than twenty thousand gallons of wine annually is exempt from the tax, but not the reporting requirements, imposed by this subsection. The commissioner shall propose legislative rules, and may propose emergency rules, for promulgation pursuant to chapter twenty-nine-a of this code to implement this exemption.
(b) Before the sixteenth day of each month, thereafter every supplier, distributor and direct shipper shall make a written report under oath to the Tax Commissioner and the Alcohol Beverage Control Commissioner showing the identity of the purchaser and the quantity, label and alcoholic content of wine sold by the a supplier to a licensed West Virginia distributors distributor or the by a direct shipper to a West Virginia adult residents resident consumer during the preceding month. and At the same time, the supplier or direct shipper shall pay to the Tax Commissioner the tax imposed by this article section on the wine sold by a supplier to the distributor licensed distributors or the by a direct shipper to West Virginia adult residents resident consumers during the preceding month: to the Tax Commissioner
(c) The reports required by this section shall contain other information and be in the form the Tax Commissioner may require. For purposes of this article, the reports required by this section shall be are considered tax returns covered by the provisions of article ten, chapter eleven of this code.
(d) Failure to timely file the tax returns within five calendar days of the reports required by this section by the sixteenth twenty-first day of each month will also subject a subjects the supplier, distributor and or direct shipper to penalties under section eighteen of this article.
(e) No wine imported, shipped, sold or distributed in within or into this state or sold and shipped to this state by a direct shipper shall be is subject to more than one liter tax.
§60-8-6. License required for sale shipment of wine.
(a) Except as to for the commissioner, and except as provided in subsection (b) of this section, no person may offer for sale or sell wine in this state or offer wine for sale or shipment into this state except to a distributor who is duly licensed under this article: Provided, That nothing in this subsection prohibits sales or distribution by a properly licensed farm winery directly to a retailer or consumer which are expressly authorized by article four or six of this chapter or by section three or six-a of this article.
(b) Every person, whether resident or nonresident in this state, who is engaged in or desires to engage in the sale or shipment of wine to a distributor for resale under this article shall must, prior to engaging in such activities, register with be licensed by the commissioner. If
(c) The commissioner shall prohibit any such person who violates the provisions of this article, he shall not be permitted to sell, ship or deliver from selling, shipping or delivering any wine to a distributor, or to the commissioner or to a consumer or and from otherwise engage engaging in the wine business in this state for a period of one year from the date a notice of violation is mailed to such person the violator. by the commissioner of the fact that such person has violated the provisions of this article During such the one-year prohibition period, it shall be unlawful for any licensed distributor within this state to buy, or receive who buys or receives wine from such person the violator or to have who has any dealings with such person the violator with respect thereto to the wine business is subject to the penalties available to the commissioner pursuant to section eighteen of this article.
(d) Hearings and appeals on such violation notices may be had in the same manner as in the case of revocations of licenses under this article.
(b) Notwithstanding the provisions of this chapter or any other law to the contrary, any person or winery that is currently licensed and in good standing in its domicile state as a winery, farm winery, supplier or retailer of wine and who obtains a direct shipper's license from the commissioner, as provided in this chapter, may ship up to a maximum of two cases of wine per month directly to adult West Virginia residents who are twenty-one years of age or over, for such adult resident's personal use and consumption and not for resale Licensed direct shippers must maintain accurate records of all shipments sent to West Virginia residents. All shipments of wine into West Virginia by licensed direct shippers shall be made by a licensed and bonded shipping carrier. Direct shippers and their carriers shall not ship wine to areas of West Virginia where wine may not be lawfully sold by county, local or municipal law. Any holder of a direct shipper's license must collect all taxes, sales taxes, municipal taxes and the liter tax due to West Virginia, remit all sales, municipal taxes and the liter tax to the Tax Commissioner at the close of each month and file a monthly return reflecting the taxes paid for all sales and shipments to residents in West Virginia. The commissioner shall prescribe the forms to be used to file the monthly returns. The shipping container of any wine sent into or out of this state under this subsection shall be clearly and conspicuously labeled to indicate that the package cannot be delivered to: (1) Any person under the age of twenty-one; (2) to an intoxicated person; or (3) to a person physically incapacitated due to the consumption of nonintoxicating beer, wine or alcoholic liquors or the use of drugs; and (4) the carriers are required to obtain a written or electronic signature upon delivery of an adult resident who the carrier verifies is at least twenty-one years of age or older and if the carrier is not able to obtain a signature of a verified adult resident at least twenty-one years of age or older, then the carrier may not complete the delivery of the wine shipment. Failure of any holder of a direct shipper's license or such licensee's carrier to abide by the provisions of this chapter and the commissioner's rules may subject the direct shipper to the penalties available to the commissioner under section eighteen of this article.
§60-8-6a. Direct shipper's license.
(a) Before sending any shipment of wine to a resident of West Virginia, a direct shipper must first:
(1) File a license application with the commissioner, with the appropriate background along with any information required by the commissioner to facilitate a criminal history record check. using forms required by the commissioner. Criminal background checks will not be required of applicants licensed in their state of domicile The commissioner shall approve forms to be used and may waive the criminal history record check for an applicant already licensed and in good standing in this state or who, if incorporated or licensed in another state, can provide a certificate of licensure in good standing from their its state of domicile;
(2) Pay to the commissioner either the one hundred fifty dollar license fee to ship and sell only wine, the two hundred fifty dollar license fee to ship and sell wine and nonfortified dessert wine, port, sherry or Madeira wines, or the three hundred dollar multicapacity winery or farm winery license the license fee required by section three of this article;
(3) Obtain a business registration number from the Tax Commissioner;
(4) Register with the Office of the Secretary of State, if a corporation or a limited liability company;
(5) Provide the commissioner a true copy of its current alcoholic beverage license, issued proving that the applicant is licensed in this state or in its state of domicile as a winery; farm winery supplier or retailer of wine farm winery, supplier or retailer.
(6) Obtain from the commissioner a direct shipper's license;
(7) Submit to Register with the commissioner a list of all brands and labels of wine to be shipped to West Virginia residents in accordance with section twenty-eight of this article; and
(8) Meet all other licensing requirements of this chapter and provide any other information that the commissioner may reasonably require.
(b) All A licensed direct shipper licensees shall:
(1) Maintain and make available to the commissioner for inspection upon request accurate records of all shipments sent directly to West Virginia residents, including records showing that all wine was delivered to an adult West Virginia resident;
(2) Ship all wine by a licensed and bonded shipping carrier;
(3) Ensure that all containers of wine shipped directly to a West Virginia resident consumer are clearly and conspicuously labeled with the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON 21 OR OLDER REQUIRED FOR DELIVERY";
(4) Ensure that the carrier verifies upon delivery that the West Virginia resident to whom the wine was shipped is at least twenty-one years of age and provides a written or electronic signature. If the carrier is not able to obtain a signature of a verified adult resident at least twenty-one years, it may not complete the delivery;
(5) File monthly reports with the commissioner and the Tax Commissioner showing the total amount of wines, by type, sold and shipped into West Virginia for the preceding month;
(6) Collect and remit to the Tax Commissioner by the twentieth day of the following month all taxes, including sales taxes, use taxes and municipal taxes, due on sales and shipments to West Virginia residents in the preceding month, the amount of which is to be calculated as if the sales were made in West Virginia at the location where delivery is made,
and file a monthly return reflecting the taxes paid for all sales and shipments to residents in West Virginia: Provided, That if the direct shipper does not have a facility, place of business, employees, tangible personal property, or real property or a physical presence, beyond a de minimis presence, in this state, the West Virginia distributor or adult resident who purchased the wine, rather than the direct shipper, is responsible for paying the sales taxes, use taxes and municipal taxes to the Tax Commissioner. The commissioner, with the advice of the Tax Commissioner, shall prescribe the forms to be used to file the monthly returns; and
(7) Permit the commissioner or the Tax Commissioner or their designees to perform an audit of the direct shipper's records upon request.
(c) A direct shipper may not:
(1) Not Ship more than two cases of wine per month to any person. A case is defined as any combination of packages containing not more than nine liters of wine West Virginia resident consumer;
(2) Not Ship wine to any West Virginia address in an area identified by the commissioner as a "dry" or local option area where it is unlawful to sell wine;
(3) Not Ship wine to any licensed suppliers, distributors, retailers, private wine bed and breakfasts, private wine restaurants, private wine spas or wine specialty shops: Provided, That nothing in this subdivision prohibits sales by a properly licensed farm winery when expressly authorized by article four or article six of this chapter or by section three of this article;
(4) Not Ship wine from overseas or internationally unless it is first shipped to a licensed supplier or distributor.
(5) Ensure that all containers of wine shipped directly to a resident in this state are clearly and conspicuously labeled with the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON 21 OR OLDER REQUIRED FOR DELIVERY";
(6) File monthly returns to the commissioner and the Tax Commissioner showing the total of wines, by type, sold and shipped into West Virginia for the preceding month;
(7) Pay to the Tax Commissioner all sales taxes, municipal taxes and the liter tax due on sales and shipments to residents of West Virginia in the preceding month, the amount of such taxes to be calculated as the sales were made in West Virginia at the location where delivery is made;
(8) Permit the Tax Commissioner or commissioner or their designees to perform an audit of the direct shipper's records upon request;
(9) Be deemed (d) For purposes of this article, a licensed direct shipper is considered to have consented to the jurisdiction of the commissioner, or of any other state agency, and of the circuit court of Kanawha County, circuit court located in Charleston, West Virginia concerning enforcement of this article and any other related laws or rules. and
(10) Provide proof or records to the commissioner, upon request, that all direct shipments of wine were purchased and delivered to an adult resident of West Virginia over the age of twenty-one years of age.
(c) The direct shipper may annually renew its license with the commissioner by application, paying the direct shipper license fee and providing the commissioner with a true copy of a current alcoholic beverage license from the direct shipper's domicile state.
(d) The commissioner may promulgate rules to effectuate the purposes of this law.
(e) Failure of a licensed direct shipper or its carrier to abide by the provisions of this section or the commissioner's rules subjects the direct shipper to the penalties available to the commissioner under section eighteen of this article. The commissioner may enforce the requirements of this section by administrative proceedings to suspend or revoke a direct shipper's license, and the commissioner may accept payment of a penalty or an offer in compromise in lieu of license suspension or revocation. at the commissioner's discretion
(f) Shipments of wine direct to consumers in West Virginia from persons who do not possess a current direct shipper's license or other permit or license from the commissioner are prohibited. Any person who knowingly makes, participates in, transports, imports or receives such an unlicensed and unauthorized direct shipment of wine is guilty of a felony and shall, upon conviction thereof, be fined in an amount not to exceed ten thousand dollars per violation or shall be imprisoned in jail for a period not to exceed seventy-two hours. Without limitation on Regardless of any other punishment or remedy, any person who violates this subsection is guilty of an unfair trade practice.
(g) The commissioner shall propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-a of this code to implement the provisions of this section.
§60-8-19. To whom licensed manufacturer may sell.
A licensed manufacturer who is also licensed as a supplier of wine, as defined in this article, may sell such its wines in this state only to the commissioner and or to distributors a licensed distributor: as defined in this article. Such manufacturers may sell such wine outside of this state for use or resale outside this state. The provisions of this section shall not apply to farm wineries as defined by section five-a, article one of this chapter Provided, That nothing in this section prohibits other sales by a properly licensed farm winery expressly authorized by article four or six of this chapter or by section three or six-a of this article.
§60-8-20. Unlawful acts generally.
It shall be is unlawful:
(a) For a supplier or distributor to sell or deliver wine purchased or acquired from any source other than a person registered licensed under the provisions of section six of this article: Provided, That nothing in this subsection prohibits other sales of wine by a properly licensed farm expressly authorized by article four or six of this chapter; or for a retailer to sell or deliver wine purchased or acquired from any source other than a licensed distributor or a farm winery; as defined in section five-a, article one of this chapter
(b) Unless otherwise specifically provided by the provisions of this article, for a licensee under this article to acquire, transport, possess for sale or sell wine other than in the original package;
(c) For a licensee or his or her servants, agents or employees to sell, furnish or give wine to any person: (1) Who is younger less than twenty-one years of age; or to a mental incompetent or person or (2) who is physically or mentally incapacitated due to the consumption of alcoholic liquor or the use of drugs or other substances: Provided, That the provisions of section twenty-five-a, article three-a of this chapter shall apply to sales of wine;
(d) For a licensee to permit a person who is less than eighteen years of age to sell, furnish or give wine to any person;
(e) For a supplier or a distributor to sell or deliver any brand of wine purchased or acquired from any source other than the primary source of supply of the wine which granted the distributor the right to sell the brand at wholesale. For the purposes of this article, "primary source of supply" means the vintner of the wine, the importer of a foreign wine who imports the wine into the United States, the owner of a wine at the time it becomes a marketable product, the bottler of a wine or an agent specifically authorized by any of the above-enumerated persons enumerated in this subsection to make a sale of the wine to a West Virginia distributor: Provided, That no retailer shall may sell or deliver wine purchased or acquired from any source other than a properly licensed distributor or farm winery: licensed in this state Provided, however, That nothing herein is considered to prohibit in this subsection prohibits sales of convenience between licensed distributors licensed in this state wherein one distributor sells, transfers or delivers to another distributor involving the sale, transfer or delivery of a particular brand or brands for sale at wholesale of which brand or brands the other recipient distributor has been authorized to distribute in this state by a licensed supplier. to distribute The commissioner shall promulgate rules necessary to carry out the provision of this subsection;
(f) For a person to violate any reasonable rule promulgated by the commissioner under this article;
(g) Nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be considered to prohibit prohibits any licensee from employing any person who is at least eighteen years of age to serve in any licensee's lawful employment, including the sale or delivery of wine under the provisions of this article. With the prior approval of the commissioner, a licensee whose principal business is the sale of food or consumer goods or the providing of recreational activities, including, but not limited to, nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores, discount stores, grocery stores and convenience stores, may employ persons who are less than eighteen years of age but at least sixteen years of age: Provided, That the person's duties may not include the sale or delivery of nonintoxicating beer or alcoholic liquors: Provided, however, That the authorization to employ persons under the age of eighteen years shall be clearly indicated on the licensee's license.
§60-8-24. Disposition of revenue.
(a) Wine tax administration.
(1)
Fund. -- The fund previously designated the Tax Commissioner's Wine Tax Administration Fund is terminated. A special revolving fund designated the Tax Commissioner's Revolving Administration Fund for Wine Taxes, is hereby created in the State Treasury. All moneys in the Tax Commissioner's Wine Tax Administration Fund at the time of its termination shall be transferred into the Tax Commissioner's Revolving Administration Fund for Wine Taxes on the effective date of the termination.
(2) Deposits and expenditures. -- The first two hundred thousand dollars of fees collected under the provisions of this article during each fiscal year shall be deposited into a special revolving fund designated the Tax Commissioner's Wine Tax Administration Fund, which fund is hereby created in the State Treasury. The Tax Commissioner's Wine Tax Administration Fund the Tax Commissioner's Revolving Administration Fund for Wine Taxes. All moneys in the Tax Commissioner's Revolving Administration Fund for Wine Taxes may be expended by the Tax Commissioner as specified in this subdivision without appropriation by the Legislature. The Tax Commissioner's Revolving Administration Fund for Wine Taxes shall be used by the Tax Commissioner to administer and support direct and indirect costs of the Tax Division for administration, collection, including compliance enforcement, auditing and distribution of taxes on wine imposed by this code and for which the Tax Commissioner has administration, collection, compliance enforcement, auditing or distribution functions or responsibilities.
(b) After collection and deposit of the first two hundred thousand dollars, as specified in subsection (a) of this section, all fees collected by the Alcohol Beverage Control Commissioner under the provisions of this article shall next be deposited in the State Treasury and credited to a special fund to be known as the Wine License Special Fund. All moneys in the Wine License Special Fund may be expended only by the Alcohol Beverage Control Commissioner 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 is appropriate by law.
(c) The liter tax imposed and collected by the Tax Commissioner under the provisions of this article shall be paid into the State Treasury and deposited in the General Revenue Fund of the state.
(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.
§60-8-28. Wine brand licensing and label registration; and review of wine labels.

(a) Every No supplier offering may sell or offer wine for sale under this article shall register until it has registered with the commissioner each brand or label of wine brand offered it intends to offer for sale in the state. and shall pay a The fee of for registering a wine brand is one hundred dollars for the registration of such wine each brand. The registration is valid for three years: such fee shall be returned to the supplier if the wine is not registered for sale Provided, That on and after the thirtieth day of June, two thousand eight, a supplier shall register each brand annually and pay an annual registration fee of twenty-five dollars per brand or ten dollars per label of a brand. Any supplier who has already registered a brand for three years under the provisions of this section is not required to renew its brand registration until the three-year registration has expired. (b) No wine brand may Along with the application for registration, to be submitted on a form prescribed by the commissioner, the supplier shall provide the commissioner with copies of each label to be sold under this article. unless all of such wine brand's labels intended for sale in the state have been registered and reviewed by the commissioner. Every supplier offering various wine labels of a registered and reviewed wine brand for sale in the state shall submit all of the wine brand's labels intended for sale in the state for registration prior to the sale of such wine labels in the state for no additional fees. After the expiration of three years, the supplier may renew the registered wine brand by paying a one hundred dollar renewal fee for three more years and every three years thereafter. Prior to registration Before approving registration of any wine labels brand or label, the commissioner shall review the wine labels. This review shall include, but not be limited to, a review of each label to determine, among other things, the alcohol content of the wine, corporate or product information and whether the label's marketing and advertising so that the wine label is not intended to be marketed to target persons less than under twenty-one years of age. If the commissioner does not approve registration of a brand, he or she shall return the registration fee to the supplier. Any licensee who sells a wine brand or label that is not registered by the commissioner is subject to the penalties provided in section eighteen of this article.
(c) After the registration period expires, the supplier may renew the wine brand or label registration by paying a renewal fee equivalent to the initial registration fee. The supplier is not required to provide copies of labels that have already been reviewed and approved by the commissioner in order to renew the registration. However, the supplier must provide with the renewal application any additional labels that it intends to offer for sale in this state and advise the commissioner of any wine brands or labels that it no longer intends to sell in this state. The commissioner shall remove all nonrenewed wine brands or labels from the register annually. and Any licensee who sells a wine with nonrenewed wine labels shall be brand or label the registration of which has not been renewed is subject to the penalties under provided in section eighteen of this article. After the expiration of three years, the supplier may renew the registered wine brand by paying a one hundred dollar renewal fee for three more years and every three years thereafter. Failure to register, obtain certification and pay the annual fee for a wine brand and failure to register the wine brand's labels will subject the supplier to penalties under said section.
(d) The commissioner shall propose legislative rules for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, governing the commissioner's review and registration of wine brands and labels, grounds for refusing to register or renew a wine brand or label, applications for registration and renewal and any other matters necessary to implement this section.
§60-8-30. Exclusive franchise agreements prohibited.
(a) It shall be illegal is unlawful for any manufacturer, winery, farm winery or supplier to enter into any exclusive franchise agreement with any distributor whereby any such which gives the distributor is given the exclusive right within this state or in any given territory within this state to distribute within this state or in any given territory within this state the a product or products of such manufacturer which are to be sold or distributed pursuant to the provisions of this article.
(b) Further, all agreements Any agreement between a manufacturer, winery, farm winery or supplier and a distributor must be in writing and on file with the commissioner and all such agreements must provide for that, upon termination of the agreement by either party, provided that written notice of termination is will be provided in writing and by certified mail to the commissioner and to all parties to the agreement. Unless the written agreement of the parties provides otherwise, the written notice of termination must be served ninety days prior to the termination date. Once the notice of termination has been received by either party, the distributor shall (1) may use the ninety day notice period provided by this subsection or by the written agreement of the parties to: (1) Deplete such distributor's its affected wine inventory; or (2) reach some agreement with the manufacturer, winery, farm winery or supplier to return or receive payment for unused salable wine inventory. or receive payment for unused salable wine inventory Unless the written agreement of the parties provides otherwise, no new distributor shall may be appointed until the conclusion of the ninety days or as the parties have otherwise agreed to complete the termination notice period specified in this subsection or in the written agreement of the parties.
(c) For the purposes of this article section, "salable" shall mean means inventory fit for human consumption. or as otherwise determined by the commissioner
§60-8-32. Where wine may be sold at retail.
Except as to sales permitted to be made by wineries or farm wineries that obtain a retailer's license, private wine bed and breakfasts, private wine restaurants, and private wine spas, Wine sold pursuant to this article may be sold at retail pursuant to this article only by the commissioner, and in and by licensed retailers, by licensed direct shippers and by licensed wine specialty shops as defined by section two of this article: Provided, That nothing in this section prohibits retail sales expressly authorized in this chapter by a properly licensed farm winery, private wine restaurant, private club, fair or festival or other person or entity.
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