Introduced Version
House Bill 4368 History
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Enrolled Version - Final Version
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Key: Green = existing Code. Red = new code to be enacted
H. B. 4368
(By Delegates Amores, Palumbo, Brown and Schadler)
[Introduced February 2, 2006;
referred to the Committee on the Judiciary.]
A BILL
to
amend and reenact §60-8-18 of the Code of West Virginia,
1931,as amended, relating to the alleged violations of Alcohol
Beverage Control Administration (ABCA) rules, orders and
related code provisions by persons and entities holding
licenses to sell or serve wine; clarifying the code provisions
to clearly provide for the investigation of licensee's
alleged violation of rules or orders issued by the ABCA
Commissioner; and providing expanded alternative sanction
options to the ABCC Commissioner for certain violations.
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, suspension and other sanctions which may be
imposed by the Commissioner upon the licensee;
procedure upon refusal, revocation, suspension or
other sanction.
(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 any order issued by the Commissioner have has been violated by
any licensee. After investigation, the Commissioner may impose
penalties and sanctions as set forth below.
(1) 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, and
the Commissioner may:
(A) Revoke the licensee's license;
(B) Suspend the licensee's license for a period determined by
the Commissioner not te 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 any 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 section twenty 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 before the Commissioner, providing that demand in writing
a written demand for such hearing is served upon the Commissioner
within ten days following the receipt of the Commissioner's order
by such the applicant or licensee of the copy of said 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 has been 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 a form and amount
as the Commissioner may reasonably require. If the person demanding
such the hearing does not substantially prevail in such 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 Any such order shall be is
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 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.
Note: The purpose of this bill is to clarify the provisions of West
Virginia Code §60-8-18 so as to allow the ABCA Commissioner to
investigate and impose appropriate sanctions and penalties against
licensed sellers and servers of wine for alleged violations of
rules promulgated by the Commissioner and orders issued by the
Commissioner pursuant to the Commissioner's authority under Article
8, Chapter 60, in addition to authority already held by the
Commissioner by law. This bill also allows for the assessment of
optional penalties in addition to revocation or suspension, except
for willful violations, which require revocation of the license.
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