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 §60-8-6 and §60-8-18 of the code of West Virginia, 1931, as amended, all relating generally to the sale of wines; removing two-case exemption; 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 §60-8-6 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.

§60-8-6. License or registration required for sale or shipment of wine.

(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 these 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 wine business. 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 may ship, 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 a sale in this state. 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. 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 ode.
(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.

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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, §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.)