ENGROSSED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 551
(By Senators Snyder and Bailey)
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[Originating in the Committee on Finance;
reported February 27, 2004.]
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A BILL to amend and reenact §60-8-3, §60-8-6 and §60-8-18 of the
code of West Virginia, 1931, as amended, all relating to the
sale of wine; imposing an annual 25-dollar fee for licenses
allowing wine to be shipped to adult residents from wineries
and retailers who are licensed in their state of domicile;
restrictions on shipment; collection and remittance of taxes;
requiring adult signature; and 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 the commissioner.
Be it enacted by the Legislature of West Virginia:
That §60-8-3, §60-8-6 and §60-8-18 of the code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 8. SALE OF WINES.
§60-8-3. Licenses; fees; general restrictions.
(a) Except as to farm wineries as defined by section five-a,
article one of this chapter, no person may engage in business in
the capacity of a distributor, retailer or private wine restaurant
without first obtaining a license from the commissioner, nor shall
a person continue to engage in
any such that activity after his
or
her license has expired, been suspended or revoked. No person may
be licensed simultaneously as a distributor and a retailer, as a
distributor and a private wine restaurant, or as a retailer and a
private wine restaurant.
(b) The commissioner shall collect an annual fee for licenses
issued under this article, as follows:
(1) Twenty-five hundred dollars per year for a distributor's
license
and each. Each separate warehouse or other facility from
which a distributor sells, transfers or delivers wine shall be
separately licensed and there shall be collected with respect to
each
such location the annual license fee of twenty-five hundred
dollars as
herein provided
in this subdivision;
(2) One hundred fifty dollars per year for a retailer's
license;
(3) Fifty dollars per year for a wine-tasting license;
(4) Fifty dollars for each sales representative of or employed
by a licensed distributor;
(5) Two hundred fifty dollars per year for a private wine
restaurant license
, and each. Each separate restaurant from which a licensee sells wine shall be separately licensed and there shall
be collected with respect to each
such location the annual license
fee of two hundred fifty dollars as
herein provided
in this
subdivision;
(6) Twenty-five dollars per year for a West Virginia wine
retailer's license
, and each. Each separate retail outlet from
which a West Virginia wine retailer sells West Virginia wine shall
be separately licensed and there shall be collected with respect to
each
such location the annual license fee of twenty-five dollars as
herein provided
in this subdivision. The holder of
such a license
may sell no wines except those produced by West Virginia farm
wineries as defined by section five-a, article one of this chapter.
Except for the amount of the license fee and the restriction to
sales of West Virginia wines, a West Virginia wine retailer is
subject to all other provisions of this article which are
applicable to a retailer as defined in section two of this article;
and
(7) Twenty-five dollars per year for a wine shipper's license.
(c) The license period
shall begin begins on the first day of
July of each year and
end ends on the thirtieth day of June of the
following year and if granted for a less period, the
same license
period shall be computed semiannually in proportion to the
remainder of the fiscal year.
(d) No retailer may be licensed as a private club as provided
by article seven of this chapter.
(e) No retailer may be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven
of this code:
Provided, That a delicatessen, caterer or party
supply store which is a grocery store as defined in section two of
this article and which is licensed as a Class A retail dealer in
nonintoxicating beer may be a retailer under this article:
Provided, however, That any delicatessen, caterer or party supply
store licensed in both
such capacities must maintain average
monthly sales exclusive of sales of wine and nonintoxicating beer
which exceed the average monthly sales of nonintoxicating beer.
(f) A retailer under this article may also hold a wine-tasting
license authorizing
such retailer to serve complimentary samples of
wine in moderate quantities for tasting.
Such The retailer shall
organize a winetaster's club, which has at least fifty duly elected
or approved dues-paying members in good standing.
Such The club
shall meet on the retailer's premises not more than one time per
week and shall either meet at a time when the premises are closed
to the general public or shall meet in a separate segregated
facility on the premises to which the general public is not
admitted. Attendance at tastings shall be limited to duly elected
or approved dues-paying members and their guests.
(g) A retailer who has more than one place of retail business
shall obtain a license for each separate retail establishment. A
retailer's license may be issued only to the proprietor or owner of
a bona fide grocery store or wine specialty shop.
(h) The commissioner may issue a special license for the
retail sale of wine at any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county
commission.
Such The special license shall be issued for a term of
no longer than ten consecutive days and the fee
therefor shall be
for the license is two hundred fifty dollars regardless of the term
of the license unless the applicant is the manufacturer of
said the
wine on a farm winery as defined in section five-a, article one of
this chapter, in which event the fee
shall be is twenty-five
dollars. The application for
such the license shall contain
such
may information
as required by the commissioner
may reasonably
require and shall be submitted to the commissioner at least thirty
days prior to the first day when wine is to be sold at
such the
festival or fair. A farm winery licensed under this subsection may
exhibit, conduct tastings, not to exceed a reasonable serving, and
may sell wine only for consumption off the premises of
such the
festival or fair. A special license issued other than to a farm
winery may be issued to a "wine club" as defined
hereinbelow in
this subsection. The festival or fair committee or the governing
body shall designate a person to organize a club under a name which
includes the name of the festival or fair and the words "wine
club". The license shall be issued in the name of the wine club.
A licensee may not commence the sale of wine as provided for in
this subsection until the wine club has at least fifty dues-paying
members 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 subsection may sell wine only to its members and in portions
not to exceed eight ounces per serving.
Such The sales shall take
place on premises or in an area cordoned or segregated so as to be
closed to the general public, and the general public shall not be
admitted to
such the premises or area. A wine club licensee under
the provisions of this subsection
shall be authorized to may serve
complimentary samples of wine in moderate quantities for tasting.
A license issued under the provisions of this subsection and
the licensee holding
such the license
shall be is subject to all
other provisions of this article and the rules
, regulations and
orders of the commissioner relating to
such the special license:
Provided, That the commissioner may by rule
, regulation, or order
provide for certain waivers or exceptions with respect to
such the
provisions, rules
, regulations, or orders as
required by the
circumstances of each
such festival or fair
may require, including,
without limitation, the right to revoke or suspend any license
issued pursuant to this section prior to any notice or hearing
notwithstanding the provisions of section twelve of this article:
Provided, however, That under no circumstances shall the provisions
of subsection (c) or (d), section twenty of this article be waived
nor shall any exception be granted with respect thereto.
A license issued under the provisions of this subsection and
the licensee holding
such the license
shall is not
be subject to
the provisions of subsection (g) of this section.
(i) A license to sell wine granted to a private wine
restaurant under the provisions of this article entitles the operator to sell and serve wine, for consumption on the premises of
the licensee, when
such the sale accompanies the serving of food or
a meal to its members and their guests in accordance with the
provisions of this article.
Such The licensees
are authorized to
may keep and maintain on their premises a supply of wine in
such
appropriate quantities
as may be appropriate for the conduct of
operations
thereof of the premises. Any sale of wine
so made shall
be is subject to all restrictions set forth in section twenty of
this article. A private wine restaurant may also be licensed as a
Class A retail dealer in nonintoxicating beer as provided by
article sixteen, chapter eleven of this code.
(j) With respect to subsections (h) and (i) of this section,
the commissioner shall
promulgate propose legislative rules in
accordance with the provisions of
article three, chapter
twenty-nine-a of this code with regard to the form of the
applications, the suitability of both the applicant and location of
the licensed premises and
such any other legislative rules
deemed
considered necessary to carry the provisions of
such the
subsections into effect.
(k) The commissioner shall
promulgate propose legislative
rules in accordance with the provisions of
article three, chapter
twenty-nine-a of this code to allow restaurants to serve West
Virginia wine with meals, but not to sell the wine by the bottle.
Each
licensed restaurant
so licensed shall be charged a fee less
than that charged for a wine license to a retail outlet
, such. The
fees
to shall be set forth in the
aforementioned rules promulgated pursuant to this subsection.
(l) The commissioner shall establish guidelines to permit West
Virginia wines to be sold in state stores.
(m) Farm wineries as defined in section one-a of this article
may advertise off premises as provided in section seven, article
twenty-two, chapter seventeen of this code and in any other media,
including, but not limited to, newspaper, radio, television,
magazines and direct mail solicitation.
§60-8-6. License or registration required for sale or shipment of
wine; shipment of limited quantities of wine to adult
residents permitted.
(a) Except as to 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 shipment into this
state, except to a distributor who is duly licensed under this
article. 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, prior to engaging in
such those activities, register with
the commissioner. If any
such person violates the provisions of
this article, he
or she shall not be permitted to sell, ship or
deliver any wine to a distributor or to the commissioner or
otherwise engage in the wine business in this state for a period of
one year from the date a notice is mailed to
such that person by
the commissioner of the fact that
such that person has violated the
provisions of this article. During
such the one-year period, it
shall be is unlawful for any distributor within this state to buy
or receive wine from
such that person or to have any dealings with
such that person with respect
thereto to the sale of wine.
Hearings and appeals on
such the 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,
an adult resident or a duly licensed
retailer or distributor of alcoholic beverages in a state or nation
which affords adults and duly licensed retailers and distributors
of this state an equal reciprocal shipping privilege any person
currently licensed in its state of domicile as a winery or retailer
of wine may apply to the commissioner for a wine shipper's license.
A licensed wine shipper may ship
wine, for personal use and not for
resale,
not more than two cases of wine per month, not to exceed
eighteen liters of wine in any month to any adult resident in this
state. Delivery of a shipment pursuant to this section
shall not
be deemed to constitute constitutes a sale in this state.
All
shipments of wine into this state from licensed wine shippers shall
be made by a licensed carrier. Direct shippers or carriers shall
not ship into areas of the state where wine may not be lawfully
sold. The licensed wine shipper shall collect the taxes due this
state and remit all excise, sales and municipal taxes monthly to
the department of tax and revenue on forms prescribed by the
commissioner. The shipping container of any wine sent into
or out
of this state under this subsection shall be clearly labeled to indicate that the package cannot be delivered to any person under
the age of twenty-one or to an intoxicated person
and the carriers
are required to obtain an adult signature upon delivery.
No adult
resident or duly licensed retailer or distributor may advertise the
availability of wines by shipment to residents of this state.
§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
(1) 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,
and
if the commissioner may:
(A) Revoke the licensee's license;
(B) Suspend the licensee's license for the period determined
by the commissioner not to exceed twelve months; or
(C) Place the licensee on probation for a period not to exceed
twelve months; and
(D) Impose a monetary penalty not to exceed one thousand
dollars for each violation where revocation is not imposed.
(2)
If the commissioner finds that a licensee has willfully
violated any provision of this article
he or any rule promulgated
or order issued by the commissioner, the commissioner shall revoke
such the licensee's license.
(b)
Whenever any If a distributor fails or refuses to keep
in
effect the bond required by section
twenty twenty-nine of this
article,
in effect, such the commissioner shall automatically
suspend the distributor's license
shall be automatically suspended
until
such time as the bond required by said section is furnished
to the commissioner, at which time
such the commissioner shall
vacate 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 has a right to a hearing
thereon on the order 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 operates 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 of the order 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 supported by findings of facts,
affirming, modifying or vacating the order
, which. The order
shall
be is final unless vacated or modified upon judicial review
thereof
of the order.
(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 has the right of
judicial review
thereof of the order 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 is final unless reversed, vacated or modified
on appeal to the supreme court of appeals in accordance with the
provisions of section one, article six, chapter twenty-nine-a of
this code.
(i) Legal counsel and services for the commissioner in all
such proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or his
or her
assistants and in any proceedings in any circuit court by the
prosecuting attorney of that county as well, all without additional
compensation.