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Senate Bill 172 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 172
(By Senator Kessler (Mr. President))
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[Introduced February 15, 2013; referred to the Committee on the
Judiciary .]
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A BILL to amend and reenact §11-16-3 and §11-16-8 of the Code of
West Virginia, 1931, as amended, all relating to the
Nonintoxicating Beer Act; adding a limited liability company
to the definition of "person" under the act; allowing a trust
to be an applicant for a distributor license; and requiring
certain disclosures by applicants that are trusts or limited
liability companies.
Be it enacted by the Legislature of West Virginia:
That §11-16-3 and §11-16-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-3. Definitions.
For the purpose of this article, except where the context
clearly requires differently:
(1) "Brewer" or "manufacturer" means any person, firm,
association, partnership or corporation manufacturing, brewing,
mixing, concocting, blending, bottling or otherwise producing or
importing or transshipping from a foreign country nonintoxicating
beer for sale at wholesale to any licensed distributor.
(2) "Brewpub" means a place of manufacture of nonintoxicating
beer owned by a resident brewer, subject to federal regulations and
guidelines, a portion of which premises are designated for retail
sales.
(3) "Commissioner" means the West Virginia Alcohol Beverage
Control Commissioner.
(4) "Distributor" means and includes any person jobbing or
distributing nonintoxicating beer to retailers at wholesale and
whose warehouse and chief place of business shall be within this
state. For the purpose of a distributor only, the term "person"
means and includes an individual, firm, trust, partnership, limited
partnership, limited liability company, association or corporation.
Any trust licensed as a distributor, and the trustee or other
persons in active control of the activities of the trust relating
to the distributor license, is liable for acts of the trust or its
beneficiaries relating to the distributor license that are unlawful
acts or violations of article eleven of this chapter
notwithstanding the liability of trustees in article ten, chapter forty-four-d of this code.
(5) "Nonintoxicating beer" means all cereal malt beverages or
products of the brewing industry commonly referred to as beer,
lager beer, ale and all other mixtures and preparations produced by
the brewing industry, including malt coolers and nonintoxicating
craft beers containing at least one half of one percent alcohol by
volume, but not more than nine and six-tenths of alcohol by weight,
or twelve percent by volume, whichever is greater. all of which are
hereby declared to be nonintoxicating and The word "liquor" as used
in chapter sixty of this code shall not be construed to does not
include or embrace nonintoxicating beer nor any of the beverages,
products, mixtures or preparations included within this definition.
(6) "Nonintoxicating craft beer" means any beverage obtained
by the fermentation of barley, malt, hops or any other similar
product or substitute and containing not less than one half of one
percent by volume and not more than twelve percent alcohol by
volume or nine and six-tenths percent alcohol by weight.
(7) "Original container" means the container used by the
brewer at the place of manufacturing, bottling or otherwise
producing nonintoxicating beer for sale at wholesale.
(8) "Person" means and includes an individual, firm,
partnership, limited partnership, limited liability company,
association or corporation.
(9) "Resident brewer" means any person, firm, association,
partnership or corporation whose principal place of business is
within the state.
(10) "Retailer" means any person selling, serving or otherwise
dispensing nonintoxicating beer and all products regulated by this
article including, but not limited to, any malt cooler, malt
coolers, at his or her established and licensed place of business.
(11) "Tax Commissioner" means the Tax Commissioner of the
State of West Virginia or the commissioner's designee.
§11-16-8. Form of application for license; fee and bond; refusal
of license.
(a) A license may be issued by the commissioner to any person
who submits an application, therefore, accompanied by a license fee
and, where required, a bond, stating and states under oath:
(1) The name and residence of the applicant, the duration of
such residency, that the applicant has been a resident of the state
for a period of two years next preceding the date of the
application and that the applicant is twenty-one years of age. If
the applicant is a firm, association, partnership, limited
partnership, limited liability company or corporation, the
application shall include the residence of the members or officers
for a period of two years next preceding the date of such
application. Provided, That if any If a person, firm, partnership, limited partnership, association or corporation limited liability
company, association, corporation or trust applies for a license as
a distributor, such person, or in the case of a firm, partnership,
limited partnership, or association, the members or officers
thereof limited liability company, association or trust, the
members, officers, trustees or other persons in active control of
the activities of the trust relating to the license, shall state
under oath that each has been a bona fide resident of the state for
four years preceding the date of such application. If the
applicant is a trust, the trustees or other persons in active
control of the activities of the trust relating to the license,
shall provide a certification of trust as described in section one-
thousand-thirteen, article ten, chapter forty-four-d of this code.
This certification of trust shall include the excerpts described in
subsection (e), section one-thousand-thirteen, article ten, chapter
forty-four-d of this code and shall state, under oath, the names
and addresses of the beneficiaries of the trust and that the
trustee and beneficiaries are twenty-one years of age or older. If
a beneficiary is not twenty-one years of age, the certification of
trust must state that such beneficiary's interest in the trust is
represented by a trustee, parent or legal guardian who is twenty-
one years old and who will direct all actions on behalf of such
beneficiary related to the trust with respect to the distributor until the beneficiary is twenty-one.
(2) The place of birth of applicant, that he or she is a
citizen of the United States and of good moral character and, if a
naturalized citizen, when and where naturalized. and, if If the
applicant is a corporation organized or authorized to do business
under the laws of the state, the application must state when and
where incorporated, with the name and address of each officer; that
each officer is a citizen of the United States and a person of good
moral character. and if a firm, association, partnership or limited
partnership, If the applicant is a firm, association, limited
liability company, partnership, limited partnership or trust, the
application shall provide the place of birth of each member of the
firm, association, partnership or limited partnership and that each
member limited liability company, partnership or limited
partnership and of the trustees, beneficiaries or other persons in
active control of the activities of the trust relating to the
license and that each member or trustee, beneficiary or other
persons in active control of the activities of the trust relating
to the license is a citizen of the United States and if a
naturalized citizen, when and where naturalized, each of whom must
qualify and sign the application. Provided, That The requirements
as to residence shall do not apply to the officers of a corporation
which shall apply applying for a retailer's license but the officers, agent or employee who shall manage and be in charge
manages and is in charge of the licensed premises shall possess all
of the qualifications required of an individual applicant for a
retailer's license including the requirement as to residence;
(3) The particular place for which the license is desired and
a detailed description thereof;
(4) The name of the owner of the building and, if the owner is
not the applicant, that such the applicant is the actual and bona
fide lessee of the premises;
(5) That the place or building in which is proposed to do
business conforms to all applicable laws of health, fire and zoning
regulations applicable thereto, and is a safe and proper place or
building and is not within three hundred feet of any a school or
church measured from front door to front door, along the street or
streets. Provided, That This requirement shall does not apply to
a Class B license or to any a place now occupied by a beer licensee
so long as it is continuously so occupied. Provided, however, That
The prohibition against locating any such a proposed business in a
place or building within three hundred feet of any a school shall
does not apply to any a college or university that has notified the
commissioner, in writing, that it has no objection to the location
of any such a proposed business in a place or building within three
hundred feet of such college or university;
(6) That the applicant is not incarcerated and has not during
the five years immediately preceding the date of said application
been convicted of a felony;
(7) That the applicant is the only person in any manner
pecuniarily interested in the business so asked to be licensed and
that no other person shall be is in any manner pecuniarily
interested therein during the continuance of the license; and
(8) That the applicant has not during five years next
immediately preceding the date of said the application had a
nonintoxicating beer license revoked.
(b) The provisions and requirements of subsection (a) of this
section are mandatory prerequisites for the issuance, and in the
event any applicant fails to qualify under the same, the license
shall be refused. In addition to the information furnished in any
application, the commissioner may make such additional and
independent investigation of each applicant and of the place to be
occupied as deemed necessary or advisable and, for this reason,
each and all applications, with license fee and bond, must be filed
thirty days prior to the beginning of any fiscal year. and if If
the application is for an unexpired portion of any a fiscal year,
the issuance of license may be withheld for such reasonable time as
necessary for investigation.
(c) The commissioner may refuse a license to any applicant under the provisions of this article if the commissioner shall be
is of the opinion:
(1) That the applicant is not a suitable person to be
licensed;
(2) That the place to be occupied by the applicant is not a
suitable place or is within three hundred feet of any school or
church measured from front door to front door along the street or
streets. Provided, That This requirement shall does not apply to
a Class B licensee or to any a place now occupied by a beer
licensee so long as it is continuously so occupied. Provided,
however, That The prohibition against locating any such place to be
occupied by an applicant within three hundred feet of any a school
shall does not apply to any a college or university that has
notified the commissioner, in writing, that it has no objection to
the location of any such place within three hundred feet; of such
college or university; or
(3) That the license should not be issued for reason of
conduct declared to be unlawful by this article.
NOTE: The purpose of this bill is to authorize trusts to be
applicants for a nonintoxicating beer distributor license and to
add limited liability companies to the definition of person in the
Nonintoxicating Beer Act.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.
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