COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 551
(By Senators Snyder and Bailey)
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[Originating in the Committee on the Judiciary;
reported February 24, 2004.]
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A BILL to amend and reenact §60-8-18 of the code of West Virginia,
1931, as amended, relating generally to power of alcohol
beverage control commissioner to revoke or suspend wine
licenses; allowing commissioner to revoke, suspend, place
licensee on probation and impose a monetary penalty on
licensee for violation of article or any rule promulgated or
order issued by commissioner; and making technical
corrections.
Be it enacted by the Legislature of West Virginia:
That §60-8-18 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 8. SALE OF WINES.
§60-8-18. Revocation or suspension of license; monetary penalty;
procedure upon refusal, revocation or suspension.
(a) The commissioner may on his
or her own motion, or shall on
the sworn complaint of any person, conduct an investigation to
determine if any provisions of this article
or any rule promulgated
or order issued by the commissioner have been violated by any
licensee.
The commissioner may suspend or revoke any licensee's
license if he If the commissioner finds that
such the licensee has
violated any provision of this article
or any rule promulgated or
order issued by the commissioner, or if
he the commissioner finds
the existence of any ground on which a license could have been
refused, if
such the licensee were then applying for a license,
the
commissioner may, in his or her discretion:
(1) Revoke the licensee's license;
(2) Suspend the licensee's license for the period determined
by the commissioner not to exceed twelve months; or
(3) Place the licensee on probation for a period not to exceed
twelve months; and
(4) Impose a monetary penalty not to exceed one thousand
dollars for each violation where revocation is not imposed.
and if If the commissioner finds that a licensee has willfully
violated any provision of this article
or any rule promulgated or
order issued by the commissioner,
he the commissioner shall revoke
such the licensee's license.
(b) Whenever any distributor fails or refuses to keep
in
effect the bond required by section twenty of this article,
in effect, such the distributor's license shall be automatically
suspended until
such time as the bond required by section twenty is
furnished to the commissioner, at which time
such the suspension
shall be vacated.
(c) Whenever the commissioner refuses to issue a license,
or
suspends or revokes a license,
places a licensee on probation, or
imposes a monetary penalty, he
or she shall enter an order to that
effect, and cause a copy of the order to be served in person or by
certified mail, return receipt requested, on the licensee or
applicant.
(d) Any applicant or licensee, as the case may be, adversely
affected by
such the order shall have a right to a hearing thereon
before the commissioner
, providing that provided the demand in
writing for
such a hearing is served upon the commissioner within
ten days following the receipt by
such the applicant or licensee of
the
copy of said commissioner's order.
The Timely service of
such
a demand for a hearing upon the commissioner shall operate to
suspend the execution of the order with respect to which a hearing
is being demanded, except an order suspending a license under the
provisions of subsection (b) of this section. The person demanding
a hearing shall give security for the cost of
such the hearing in
such the form and amount as the commissioner may reasonably
require. If the person demanding
such the hearing does not
substantially prevail in
such the hearing or upon judicial review thereof as
hereinafter provided
in subsections (g) and (h) of this
section, then the costs of
such the hearing shall be assessed
against him
or her by the commissioner and may be collected by an
action at law or other proper remedy.
(e)
The Upon receipt of a timely served written demand for a
hearing, the commissioner shall immediately set a date for
such the
hearing and notify the person demanding
such the hearing
thereof,
which of the date, time and place of the hearing
which shall be
held within thirty days after receipt of
said the demand. At
such
the hearing, the commissioner shall hear evidence and thereafter
enter an order supporting by findings of facts, affirming,
modifying or vacating the order, which order shall be final unless
vacated or modified upon judicial review thereof.
(f)
Such The hearing and the administrative procedure prior
to, during and following the hearing shall be governed by and in
accordance with the provisions of article five, chapter twenty-
nine-a of this code in like manner as if the provisions of article
five were set forth in extenso in this section.
(g) Any
person applicant or licensee adversely affected by an
order entered following
such a hearing shall have the right of
judicial review thereof in accordance with the provisions of
section four, article five, chapter twenty-nine-a of this Code with
like effect as if the provisions of said section four were set
forth in extenso herein.
(h) The judgment of a circuit court reviewing the order of the
commissioner shall be final unless reversed, vacated or modified on
appeal to the supreme court of appeals in accordance with the
provisions of section one, article six, chapter twenty-nine-a of
this Code.
(i) Legal counsel and services for the commissioner in all
such proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or his assistants
and in any proceedings in any circuit court by the prosecuting
attorney of that county as well, all without additional
compensation.
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(NOTE: The purpose of this bill is allow the alcohol beverage
commissioner to also place a wine licensee on probation or assess
a monetary penalty, or both, when a wine licensee violates a
provision of the wine law, W. Va. code §60-8-1,
et seq., a rule
promulgated by the commissioner, or an order issued by the
commissioner. These sanctions would be appealable just like an
order revoking or suspending a wine license. Certain language in
the section would be modernized.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)