COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 610
(By Senators Facemyer, Bowman and McCabe)
____________
[Originating in the Committee on the Judiciary;
reported February 26, 2003.]
____________
A BILL to amend and reenact sections nine and ten, article sixteen,
chapter eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
twelve, article three-a, chapter sixty of said code; to amend
and reenact sections fifteen and twenty-two, article four of
said chapter; to amend article seven of said chapter by adding
thereto a new section, designated section nine; and to amend
and reenact section three, article eight of said chapter, all
relating generally to businesses selling nonintoxicating beer,
alcoholic liquors or wine; increasing annual licensing fees of
West Virginia alcohol beverage control administration
licensees; prohibiting private clubs from having limited video
lottery license unless they are a bona fide private club;
making technical corrections; and providing effective dates.
Be it enacted by the Legislature of West Virginia:
That sections nine and ten, article sixteen, chapter eleven of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section twelve, article
three-a, chapter sixty of said code be amended and reenacted; that
sections fifteen and twenty-two, article four of said chapter be
amended and reenacted; that said article be further amended by
adding thereto a new section, designated section nine; and that
section three, article eight of said chapter be amended and
reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-9. Amount of license tax; Class A and Class B retail
dealers; purchase and sale of nonintoxicating beer permitted;
distributors; brewers; brewpubs.
(a) There is hereby levied and imposed an annual license tax
upon all dealers in and of nonintoxicating beer as defined by this
article, which license period shall begin on the first day of July
of each year and end on the thirtieth day of June of the following
year and, if granted for a less period, the same shall be computed
semiannually in proportion to the remainder of the fiscal year as
follows:
(1) Retail dealers shall be divided into two classes, Class A
and Class B. In the case of a Class A retail dealer the license fee shall be
one hundred fifty two hundred dollars for each place
of business; the license fee for social, fraternal or private clubs
not operating for profit and having been in continuous operation
for two years or more immediately preceding the date of
application, shall be one hundred fifty dollars:
Provided, That
railroads operating in this state may dispense nonintoxicating beer
upon payment of an annual license tax of ten dollars for each
dining, club or buffet car in which the same is dispensed.
Class A licenses issued for railroad dining, club or buffet
cars, as herein provided, shall authorize the licensee to sell
nonintoxicating beer at retail for consumption only on the licensed
premises where sold. All other Class A licenses shall authorize
the licensee to sell nonintoxicating beer at retail for consumption
on or off the licensed premises.
In the case of a Class B retailer, the fee for a Class B
license authorizing the sale of both chilled and unchilled beer
shall be
one hundred fifty two hundred dollars for each place of
business. A Class B license shall authorize the licensee to sell
nonintoxicating beer at retail in bottles, cans or other sealed
containers only and only for consumption off the licensed premises.
Sales under this license to any person at any one time must be in
less quantities than five gallons:
Provided, That a Class B
retailer may sell to a consumer, for personal use and not for
resale, draught beer in quantities of one-eighth, one-fourth and one-half barrels in the original containers.
Such The license may
be issued only to the proprietor or owner of a grocery store. For
the purpose of this article the term "grocery store" means and
includes any retail establishment commonly known as a grocery store
or delicatessen and caterer or party supply store, where food or
food products are sold for consumption off the premises and shall
include and mean a separate and segregated portion of any other
retail store which is dedicated solely to the sale of food, food
products and supplies for the table for consumption off the
premises. The commissioner may promulgate legislative rules
pursuant to chapter twenty-nine-a of this code necessary to carry
this provision into effect. Caterers or party supply stores will
be required to purchase the appropriate licenses from the alcohol
beverage control administration.
(2) In the case of distributors, the license fee shall be one
thousand
two hundred fifty dollars for each place of business.
(3) In the case of a brewer with its principal place of
business located in this state, the license fee shall be one
thousand
five seven hundred
fifty dollars for each place of
manufacture.
(4) In the case of a brewpub, the license fee shall be one
thousand dollars for each place of manufacture.
(b) Effective date. -- Amendments to this section enacted
during the regular session of the Legislature in the year two thousand three shall apply to license years beginning on or after
the first day of July, two thousand three.
§11-16-10. Brewer's license for foreign corporation; application;
bond; contents of application; limitations; annual license
fee; renewal; suspension; license fee for sales
representatives.
(a) A brewer's license shall be issued by the commissioner to
a foreign corporation which submits an application therefor
accompanied by the license fee hereinafter prescribed, the bond
required by section nine of this article, a certified copy of the
certificate of authority issued by the secretary of state
authorizing
such the foreign corporation to transact business in
the state and a certified copy of its most recent corporation
charter.
Such The application shall be verified and shall state:
(1) The name of the corporation and the state under the laws
of which it is incorporated;
(2) The date of incorporation;
(3) The address of the principal office of the corporation;
(4) The names and respective addresses of the directors and
officers of the corporation;
(5) The date that
such the
foreign corporation qualified to
transact business in this state; and
(6) Such other information as the commissioner, by rule or
regulation, may require.
(b) So long as the foreign corporation remains qualified to
transact business in this state so that the secretary of state can
accept service of notice and process for such the
foreign
corporation, then, notwithstanding any other provision of this
article to the contrary, none of the officers and directors of such
the
foreign corporation need be residents of this state.
(c) The license fee for a brewer's license for a foreign
corporation selling any nonintoxicating beer product within this
state, whether or not its principal place of business be located in
this state, shall be one thousand five seven hundred fifty dollars
per annum. The license period shall begin on the first day of July
of each year and end on the thirtieth day of June of the following
year and, if granted for a lesser period, the same shall be
prorated semiannually in proportion to the remainder of the fiscal
year.
(d) All sales representatives for any brewer or manufacturer
of nonintoxicating beer shall be issued a permit by the
commissioner. The permit fee for each sales representative of or
employed by a licensed brewer or manufacturer shall be fifty one
hundred dollars.
(e) The licenses and permits issued under the provisions of
this section shall be renewed annually upon application for renewal
on a form prescribed by the commissioner and payment of the annual
license fee.
(f) If at any time such the
foreign corporation is no longer
qualified to transact business in this state, the secretary of
state shall notify the commissioner of such that fact and the
commissioner shall thereupon suspend the brewer's license issued to
such the
foreign corporation until such the
time as such the
foreign corporation has again qualified to transact business in
this state and has otherwise complied with the provisions of this
section.
(g) Notwithstanding any other provision of this article to the
contrary, any corporation issued a brewer's license under the
provisions of this article shall may not engage in the business of
a distributor or retailer as defined in this article.
(h) Effective date. -- Amendments to this section enacted
during the regular session of the Legislature
in the year two
thousand three shall apply to license years beginning on or after
the first day of July, two thousand three.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-12. Annual retail license fee; expiration and renewal of
retail licenses.
(a) The annual retail license period is from the first day of
July to the thirtieth day of June of the following year. The annual
retail license fee for a Class A retail license is the sum obtained
by multiplying the number of retail outlets operated by the retail licensee in the market zone to which the Class A retail license
applies by one thousand
two hundred fifty dollars. The annual
retail license fee for a Class B retail license is one thousand
two
hundred fifty dollars. The annual retail license fee for the
initial year of issuance shall be prorated based on the number of
days remaining between the date of issuance and the following
thirtieth day of June.
(b) All retail licenses expire on the thirtieth day of June of
each year and may be renewed only upon the submission to the
commissioner of the same information required for the issuance of
the license and any additional information requested by the
commissioner on the forms and by the date prescribed by the
commissioner, together with the payment to the commissioner of the
applicable annual retail license fee required under this section.
(c) No person may sell liquor at any retail outlet if the
retail license applicable to the outlet has been suspended or
revoked or has expired.
(d) All retail licenses issued or renewed under the provisions
of this article for the period ending the thirtieth day of June,
two thousand
ten, or on the thirtieth day of June for any ten-year
period thereafter, expire and are of no further force or effect as
of the first day of July, in the year two thousand
ten, or as of
the first day of July every ten years thereafter.
(e) Notwithstanding any provision of section eighteen, article four of this chapter to the contrary, a municipality may invoke the
authority granted by section four, article thirteen, chapter eight
of this code to require an annual license from each retail licensee
and require payment for the license in amounts not to exceed the
amounts provided in subsection (a) of this section.
(f) Effective date. -- Amendments to this section enacted
during the regular session of the Legislature
in the year two
thousand three shall apply to license years beginning on or after
the first day of July, two thousand three.
ARTICLE 4. LICENSES.
§60-4-15. Amount of license fees.
(a) A person to whom a license is issued under the provisions
of this chapter shall pay annually to the commissioner a license
fee as follows, for:
(1) Distilleries, one thousand five seven hundred fifty
dollars;
(2) Wineries, one thousand five hundred dollars;
(3) Breweries, two hundred fifty dollars;
(4) Bottling plants, one hundred dollars;
(5) Wholesale druggists, fifty dollars;
(6) Institutions, ten dollars;
(7) Industrial use, fifty dollars;
(8) Industrial plants producing alcohol, two hundred fifty
dollars;
(9) Retail druggists, ten dollars;
(10) Farm wineries, fifty one hundred dollars.
(b) Effective date. -- Amendments to this section enacted
during the regular session of the Legislature
in the year two
thousand three shall apply to license years beginning on or after
the first day of July, two thousand three.
§60-4-22. Wholesale representatives' licenses; criminal penalty.
(a) No person, firm or corporation shall be or act or serve as
an agent, broker or salesman selling or offering to sell or
soliciting or negotiating the sale of alcoholic liquor to the
commission or to any distributor licensed pursuant to article eight
of this chapter without first obtaining a license so to do in
accordance with the provisions of this section. Only salaried
employees of distilleries, manufacturers, producers or processors
of alcoholic liquor 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.
The commission shall be the licensing authority and may grant to
persons of good moral character the license herein provided and may
refuse to grant such the
license to any person heretofore convicted
of a felony within ten years prior to his application for such the
license; refuse to grant, suspend or revoke licenses. Licenses
shall be on an annual basis for the period from the first day of
July until the thirtieth day of June next following. New and renewal licenses shall may
be granted only upon verified
application to the commission presented on forms provided by the
commission. Any person representing more than one producer,
manufacturer or distributor of alcoholic liquors shall file a
separate application and shall obtain a separate license for each
such representation. The annual license fee shall be one hundred
fifty dollars. The fee for any license granted for the remainder
of any license year between the first day of January and the
thirtieth day of June of the same calendar year shall be fifty
seventy-five dollars.
(b) 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, may be granted a license hereunder. No member of the
Legislature or the spouse of any such member may be granted a
license hereunder. Nor shall 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 hereunder.
(c) 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 or her name and his or her residence address and the name and business address of the
producer, manufacturer or distributor he or she represents; the
name and address of each additional producer, manufacturer or
distributor of alcoholic liquors he or she represents; the monetary
total of all alcoholic liquor sales, if any, made by him or her 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 or she is seeking a license; the monetary total
of the gross income received by him or her on such the
sales, if
any, during such the
fiscal year; whether he or she has, during
such the
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 or her
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. All such applications and a current list of all
licensees hereunder shall be matters of public record and shall be
available to public inspection at the commission's offices at the
state capitol. Every licensee who ceases to be an agent, broker or
salesman, as herein contemplated, shall so advise the commission in writing and such the
person's name shall be immediately removed
from the license list and his or her license shall be cancelled and
terminated.
(d) Except as to owners, principal officers or employees of
farm wineries, all persons licensed hereunder shall be full-time
salaried employees of the distilleries, manufacturers, producers or
processors of alcoholic liquor they represent and shall devote
their full time to the duties of such employment and shall have and
engage in no other remunerative occupation or calling at the same
time. No such licensed person shall may
share, divide or split his
or her salary with any person other than his or her wife spouse, or
some legal dependent, nor shall may he or she make any contribution
to any political party campaign fund in this state.
(e) All licensees hereunder shall be subject to all other
provisions of this chapter and to the lawful rules and regulations
promulgated by the commission. Licenses may be refused, suspended
or revoked by the commission 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.
(f) 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 guilty of a misdemeanor offense and shall, upon conviction thereof, be fined
not exceeding one thousand dollars or imprisoned in the county or
regional jail not exceeding twelve months, or be subject to both
such fine and imprisonment in the discretion of the court.
(g) Effective date. -- Amendments to this section enacted
during the regular session of the Legislature
in the year two
thousand three shall apply to license years beginning on or after
the first day of July, two thousand three.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§60-7-9. Additional requirements for licensee to also be licensed
to have limited video lottery terminals.
(a) General. -- Except as provided in subsection (c) of this
section, a private club licensed under this article may not also be
licensed under article twenty-two-b, chapter twenty-nine of this
code unless:
(1) The private club derives at least fifty percent of its
annual gross receipts at that location from sales of alcoholic
beverages for consumption on the premises; or
(2) The private club derives at least forty percent of its
annual gross receipts at that location from sales of alcoholic
beverages and the private club maintains a suitable kitchen and
dining facility and related equipment for serving meals for
consumption on premises from which it derives at least ten percent
of its annual gross receipts at that location from sales of food for consumption on the premises; and
(3) When the private club is frequented by minors and their
parents or legal guardians, video lottery terminals shall be
located in a separate room suitable for the location of video
lottery terminals with adult-only access, the interior of which is
not visible to persons outside the room.
(b) Definitions. -- For purposes of this section:
(1) "Adult-only" means persons twenty-one years of age or
older.
(2) "Alcoholic beverages" means beverages that are suitable
for human consumption and contain one half of one percent or more
of alcohol by volume.
(3) "Food" means substances that are sold for ingestion by
humans that are consumed for their taste or nutritional value.
"Food" does not include alcoholic beverages or tobacco.
(c) Grandfather provision. -- A private club that held a
limited video lottery license on the first day of February, two
thousand two, that does not meet the requirements of subsection (a)
of this section, shall be allowed to retain its limited video
lottery license so long as it meets the requirements of this
article, except for subsection (a) of this section, and the
requirements of article twenty-two-b, chapter twenty-nine of this
code, including the requirements of any rules promulgated under
either article until the license under either article is revoked or surrendered: Provided, That the limited video lottery license may
not be transferred to any other person.
(d) Construction; effective date. -- This section shall apply
to licenses, including renewals thereof, issued under this article
and article twenty-two-b, chapter twenty-nine of this code on and
after the effective date of this enactment in the year two thousand
three, notwithstanding any provision of this code to the contrary.
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
may
a person continue to engage in any such 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 Two thousand seven hundred fifty
dollars per year for a distributor's license and 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 two thousand seven hundred fifty
dollars as herein provided.
(2) One hundred fifty seventy-five dollars per year for a
retailer's license.
(3) Fifty dollars per year for a wine tasting license.
(4) Fifty One hundred dollars for each sales representative of
or employed by a licensed distributor.
(5) Two hundred fifty seventy-five dollars per year for a
private wine restaurant license and 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 seventy-five dollars as herein
provided.
(6) Twenty-five dollars per year for a West Virginia wine
retailer's license and 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. 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.
(c) The license period shall begin on the first day of July of
each year and end on the thirtieth day of June of the following
year and if granted for a less period, the same 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, a 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 the
retailer to serve complimentary
samples of wine in moderate quantities for tasting.
(1) Such The retailer shall organize a winetaster's club,
which has at least fifty duly elected or approved dues paying
members in good standing.
(2) 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.
(3) 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.
(1) Such The special license shall be issued for a term of no
longer than ten consecutive days and the fee therefor shall be two
hundred fifty dollars regardless of the term of the license unless
the applicant is the manufacturer of said wine on a farm winery as
defined in section five-a, article one of this chapter in which
event the fee shall be twenty-five dollars.
(2) The application for such a license shall contain such all
information as 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.
(3) A farm winery licensed under this subsection (h) 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.
(4) A special license issued other than to a farm winery may
be issued to a "wine club" as defined hereinbelow.
(5) 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".
(6) The license shall be issued in the name of the wine club.
(7) 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.
(8) 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 may
not
be admitted to such the
premises or area.
(9) A wine club licensee under the provisions of this subsection shall be authorized to serve complimentary samples of
wine in moderate quantities for tasting.
(10) A license issued under the provisions of this subsection
and the licensee holding such the
license shall be 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 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 may
any exception be granted with respect thereto.
(11) A license issued under the provisions of this subsection
(h) and the licensee holding such the
license shall may
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.
(1) Such The licensees are authorized to keep and maintain on
their premises a supply of wine in such quantities as may be
appropriate for the conduct of operations thereof.
(2) Any sale of wine so made shall be subject to all
restrictions set forth in section twenty of this article.
(3) 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 legislative rules in accordance
with the provisions of 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 other
legislative rules deemed necessary to carry the provisions of such
the
subsections into effect.
(k) The commissioner shall promulgate legislative rules in
accordance with the provisions of 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
fees to be as 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 and in any other media, including,
but not limited to, newspaper, radio, television, magazines and
direct mail solicitation.
(n) Effective date. -- Amendments to this section enacted
during the regular session of the Legislature
in the year two
thousand three shall apply to license years beginning on or after
the first day of July, two thousand three.
__________
(NOTE: The purpose of this bill is to increase annual
licensing fees levied by the West Virginia Alcohol Beverage Control
Administration to generate additional revenue for the state of West
Virginia and to prohibit private clubs from holding a limited video
lottery license unless the club is a bona fide private club.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
§60-7-9 is new; therefore, strike-throughs and underscoring
have been omitted.
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