Senate Bill No. 235
(By Senator Sharpe)
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[Introduced January 23, 2006; referred to the Committee
on Finance.]
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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 the commissioner to
revoke or suspend the license of a licensee, place licensee on
probation and impose a monetary penalty on licensee for
violation of said 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
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 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;
(7) Twenty-five dollars per year for a wine shipper's license.
(7) (8) One hundred dollars per year for a wine sampling
license issued for a retailer under subsection (n) of this section;
and
(8) (9) No fee shall be charged for a special one-day license
under subsection (o) of this section or for a heritage fair and festival license under subsection (p) of this section.
and
(10) 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, 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
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 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 license shall contain
such
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 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 may not
be admitted to such
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 license
shall be is
regulations
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: Provided, That a licensed private wine
restaurant may offer for sale for consumption off the premises,
sealed bottles of wine produced by a West Virginia farm winery.
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), (i), (n) and (o) 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 and in any other media, including,
but not limited to, newspaper, radio, television, magazines and
direct mail solicitation.
(n) A retailer under this article may also hold a wine
sampling license authorizing the retailer to conduct special wine
sampling events at a licensed retail location during regular hours
of business. The retailer may serve up to three complimentary
samples of wine, consisting of no more than one ounce each, to any
one consumer in one day. Persons serving the complimentary samples
must be twenty-one years of age and duly employed by the licensed
retailer, farm winery, or a representative of a distributor or
registered supplier. Distributor and supplier representatives
attending wine sampling events must be duly licensed by the
commissioner. No licensee, employee, or representative may
furnish, give or serve complimentary samples of wine to any person
less than twenty-one years of age or to a person who is physically
incapacitated due to the consumption of alcoholic liquor or the use
of drugs. The retailer shall notify and secure permission from the
commissioner for all wine sampling events one month prior to the
event. Wine sampling events may not exceed six hours per calendar day. Licensees must purchase all wines used during these events
from a West Virginia farm winery or a licensed West Virginia
distributor.
(o) The commissioner may issue special one-day licenses to
duly organized, nonprofit corporations and associations allowing
the sale and serving of wine when raising money for athletic,
charitable, educational or religious purposes. The license
application shall contain information as the commissioner may
reasonably require and shall be submitted to the commissioner at
least thirty days prior to the event. Wines used during these
events may be donated by or purchased from a licensed retailer,
distributor or West Virginia farm winery. Under no circumstances
may the provision of subsection (c), section twenty of this article
be waived nor may any exception be granted with respect thereto.
(p) The commissioner may issue special licenses to heritage
fairs and festivals allowing the sale, serving and sampling of wine
from a West Virginia farm winery. The license application shall
contain information required by the commissioner and shall be
submitted to the commissioner at least thirty days prior to the
event. Wines used during these events may be donated by or
purchased from a West Virginia farm winery. Under no circumstances
may the provision of subsection (c), section twenty of this article
be waived nor may any exception be granted with respect thereto.
The commissioner shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code
to implement the provisions of this subsection.
§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 may 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 the 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 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 has 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
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 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.
NOTE: The purpose of this bill is to allow the Alcohol
Beverage Commissioner to also place a wine license on probation or
assess a monetary penalty, or both, when a wine license violates a
provision of the wine law, West Virginia Code §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. The purpose of this bill is also
to allow for out-of-state wineries and retailers to apply for a
license from the commissioner for an annual license fee of twenty
five dollars permitting the direct sale and shipment to West
Virginia consumers for personal use so long as the wineries and
retailers are licenced in the state of their domicile.
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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