HB5510 SFA Barrett #1 3-13
Johnson 7909
Senator Barrett moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
(a) It is unlawful for the operator or a passenger of a motor vehicle to consume any alcoholic beverage in the passenger area of a motor vehicle located on a public highway or right-of-way of a public highway in this state, whether the vehicle is in motion or at rest.
(b) It is unlawful for the operator or a passenger of a motor vehicle to knowingly possess any open alcoholic beverage container in the passenger area of any motor vehicle that is located on a public highway or right-of-way of a public highway in this state, whether the vehicle is in motion or at rest. Possession by a person of one or more open containers in a single criminal occurrence is a single offense.
(c) The provisions of this section are not applicable to a passenger:
(1) In the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation including, but not limited to, a bus, taxicab, pedal bike, chartered bus, or limousine; or
(2) In the living quarters of a motorized or nonmotorized house coach, house trailer, motor home or self-contained camper.
(d) A person who violates the provisions of subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $100.
For the purposes of this chapter:
(1) "Alcohol" means ethyl alcohol whatever its origin and shall include synthetic ethyl alcohol but not denatured alcohol.
(2) "Alcoholic liquor" includes alcohol, beer, wine, and spirits, and any liquid or solid capable of being used as a beverage, but shall not include nonintoxicating beer.
(3) "An agency" means a drugstore, grocery store, or general store designated by the commission as a retail distributor of alcoholic liquor for the West Virginia Alcohol Beverage Control Commission.
(4) "Beer" means any beverage obtained by the fermentation of barley, malt, hops, or any other similar product or substitute, and containing more alcohol than that of nonintoxicating beer.
(5) "Brewery" means an establishment where beer is manufactured or in any way prepared.
(6) "Commissioner" or "commission" means the West Virginia Alcohol Beverage Control Commissioner.
(7) "Department" means the organization through which the commission exercises powers imposed upon it by this chapter.
(8) "Distillery" means an establishment where alcoholic liquor other than wine or beer is manufactured or in any way prepared.
(9) "Intoxicated" means a person's faculties are impaired by alcohol or other substance to the point where physical or mental control or both are markedly diminished.
"Low-proof spirit alcohol products" mean any alcoholic liquor beverage drink, other than wine, beer, or nonintoxicating beer, containing one half of one percent or more of alcohol by volume, but not more than 14 and one-half percent alcohol by volume obtained by distillation, mixed with drinkable water, fruit juices, flavoring, or coloring materials, other alcoholic or non-alcoholic beverages or other ingredients in a solution, which are packaged in containers not to exceed 24 fluid ounces.
(10) "Manager" means an individual who is the applicant's or licensee's on-premises employee, member, partner, shareholder, director, or officer who meets the licensure requirements of §11-16-1 et seq. of this code and rules promulgated thereunder who actively manages, conducts, and carries on the day-to-day operations of the applicant or licensee with full and apparent authority or actual authority to act on behalf of the applicant or licensee. Such duties include, but are not limited to: Coordinating staffing; reviewing and approving payroll; ordering and paying for inventory, such as nonintoxicating beer, wine, and liquor, as applicable; and managing security staff, security systems, video and other security equipment; and any further acts or actions involved in managing the affairs of the business, on behalf of owners, partners, members, shareholders, officers, or directors.
(11) "Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle, or fill an original package with any alcoholic liquor.
(12) "Manufacturer" means any person engaged in the manufacture of any alcoholic liquor, and among others includes a distiller, a rectifier, a wine maker, and a brewer.
(13) "Nonintoxicating beer" means any beverage obtained by the fermentation of barley, malt, hops, or similar products or substitute, and containing not more alcohol than that specified by §11-16-2 of this code.
(14) "Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor.
(15) "Person" means an individual, firm, partnership, limited partnership, corporation, or voluntary association.
(16) "Powdered alcohol" means an alcohol manufactured in a powder or crystalline form for either direct use or reconstitution as an alcoholic liquor or food. For purposes of this chapter, powdered alcohol excludes any material intended for industrial purposes.
(17) "Public place" means any place, building, or conveyance to which the public has, or is permitted to have access, including restaurants, soda fountains, hotel dining rooms, lobbies, and corridors of hotels and any highway, street, lane, park, or place of public resort or amusement: Provided, That the term "public place" shall not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of this chapter to sell alcoholic liquors for consumption on the premises: Provided, however, That the term "public place" shall not mean or include any legally demarcated area designated solely for the consumption of beverages and freshly prepared food that directly connects and adjoins any portion or portions of a premise that qualifies and is licensed under the provisions of this chapter to sell alcoholic liquors for consumption thereupon: Provided further, That the term "public place" shall not include a facility constructed primarily for the use of a Division I, II, or III college or university that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer, or other Division I, II, or III sports stadium which holds a special license to sell wine pursuant to the provisions of §60-8-3 of this code, in the designated areas of sale and consumption of wine and other restrictions established by that section and the terms of the special license issued thereunder.
(18) "Sale" means any transfer, exchange, or barter in any manner or by any means, for a consideration, and shall include all sales made by a principal, proprietor, agent, or employee.
(19) "Selling" includes solicitation or receipt of orders; possession for sale; and possession with intent to sell.
(20) "Spirits" means any alcoholic beverage obtained by distillation and mixed with potable water and other substances in solution and includes brandy, rum, whiskey, cordials, and gin.
(21) "State liquor store" means a store established and operated by the commission under this chapter for the sale of alcoholic liquor in the original package for consumption off the premises.
(22) "Wine" means any alcoholic beverage obtained by the fermentation of the natural content of fruits, or other agricultural products, containing sugar.
(23) "Winery" means an establishment where wine is manufactured or in any way prepared.
(a) The commissioner shall fix wholesale prices for the sale of liquor, other than wine, to retail licensees. The commissioner shall sell liquor, other than wine, to retail licensees according to a uniform pricing schedule. The commissioner shall obtain, if possible, upon request, any liquor requested by a retail licensee and those permitted to manufacture and sell liquor pursuant to §60-4-3 of this code.
(b) Wholesale prices shall be established in order to yield a net profit for the General Revenue Fund of not less than $6,500,000 annually on an annual volume of business equal to the average for the past three years. The net revenue derived from the sale of alcoholic liquors shall be deposited into the General Revenue Fund in the manner provided in §60-3-17 of this code.
(c) Notwithstanding any provision of this code to the contrary, the commissioner shall specify the maximum wholesale markup percentage which may be applied to the prices paid by the commissioner for all liquor, other than wine, in order to determine the prices at which all liquor, other than wine, will be sold to retail licensees. A retail licensee shall purchase all liquor, other than wine, for resale in this state only from the commissioner, and the provisions of §60-6-12 and §60-6-13 of this code shall not apply to the transportation of the liquor: Provided, That a retail licensee shall purchase wine from a wine distributor who is duly licensed under §60-8-1 et seq. of this code. All liquor, other than wine, purchased by retail licensees shall be stored in the state at the retail outlet or outlets operated by the retail licensee: Provided, however, That the commissioner, in his or her discretion, may upon written request permit a retail licensee to store liquor at a site other than the retail outlet or outlets.
(d) The sale of liquor by the commissioner to retail licensees shall be paid by electronic funds transfer which shall be initiated by the commissioner on the business day following the retail licensees order or by money order, certified check, or cashier’s check which shall be received by the commissioner at least 24 hours prior to the shipping of the alcoholic liquors: Provided, That if a retail licensee posts with the commissioner an irrevocable letter of credit or bond with surety acceptable to the commissioner from a financial institution acceptable to the commissioner guaranteeing payment of checks, then the commissioner may accept the retail licensee’s checks in an amount up to the amount of the letter of credit.
(e) (1) A retail licensee may not sell liquor to persons licensed under the provisions of §60-7-1 et seq. of this code at less than 115 percent of the retail licensee’s cost as defined in §47-11A-6 of this code. If a retail licensee can document, by purchase date and invoice submitted along with a written request to the commissioner, that a liquor product, which is still salable and fit for human consumption, has been stagnant for over one years from the purchase date, then, upon meeting the aforesaid requirements and approval by the commissioner, the retail licensee may not sell stagnant liquor to persons licensed under the provisions of §60-7-1 et seq. of this code at less than 85 percent of the retail licensee’s cost as defined in §47-11A-6 of this code.
(2) A retail licensee may not sell liquor to the general public at less than 110 percent of the retail licensee’s cost as defined in §47-11A-6 of this code. If a retail licensee can document, by purchase date and invoice submitted along with a written request to the commissioner, that a liquor product, which is still salable and fit for human consumption, has been stagnant for over one year from the purchase date, then, upon meeting the aforesaid requirements and approval by the commissioner, the retail licensee may not sell stagnant liquor to the general public at less than 90 percent of the retail licensee’s cost as defined in §47-11A-6 of this code.
(a) Not more than ten 10 gallons of liquor may be sold by a retail licensee to a person at one time without the approval of the commissioner or his or her representative, but a sale in excess of ten 10 gallons may be made to a religious organization purchasing wine for sacramental purposes: Provided, That this section does not apply to purchases by private clubs as defined in article seven of this chapter §60-7-1 et seq. of this code.
(b) This section does not apply to licensed distilleries, mini-distilleries, or micro-distilleries when selling an entire barrel or barrels of liquor, approved by commissioner, to a person or group of persons who have proof of their purchase while transporting more than 10 gallons of liquor purchased by the person or group of persons from the licensed distilleries, mini-distilleries, or micro-distilleries, subject to the provisions of §60-6-6 of this code.
(a) Sales of liquor. — An operator of a distillery, mini-distillery, or micro-distillery may offer liquor for retail sale to customers from the distillery, mini-distillery, or micro-distillery for consumption off-premises only. Except for samples offered pursuant to §60-6-1 of this code, customers may not consume any liquor on the premises of the distillery, mini-distillery, or micro-distillery, except for a distillery, mini-distillery, or micro-distillery that obtains a private venue – alcohol manufacturer club license set forth in §60-7-1 et seq. of this code, and a Class A retail dealer license set forth in §11-16-1 et seq. of the code: Provided, That a licensed distillery, mini-distillery, or micro-distillery may offer samples of alcoholic liquors as authorized by this subsection when alcoholic liquors are manufactured by that licensed distillery, mini-distillery, or micro-distillery for consumption on the licensed premises. Notwithstanding any other provision of law to the contrary, a licensed distillery, mini-distillery, or micro-distillery may sell, furnish, and serve alcoholic liquors when licensed accordingly beginning at 6:00 a.m. unless otherwise determined by the residents of the county pursuant to §7-1-3ss of this code.
(b) Retail on-premises and off-premises consumption sales. — Every licensed distillery, mini-distillery, or micro-distillery shall comply with the provisions of §60-3A-9, §60-3A-11, §60-3A-13, §60-3A-16, §60-3A-17, §60-3A-18, §60-3A-19, §60-3A-22, §60-3A-23, §60-3A-24, §60-3A-25, and §60-3A-26 of this code, and the provisions of §60-3-1 et seq., §60-4-1 et seq., and §60-7-1 et seq. of this code, applicable to liquor retailers and distillers. In the interest of promoting tourism throughout the state, every licensed distillery, mini-distillery, or micro-distillery manufacturing liquor in this state is authorized, with a limited off-site retail privilege at private fairs and festivals, for on-premises consumption sales served by the drink or glass, and off-premises consumption sales by the bottle of only the licensed distillery, mini-distillery, or micro-distillery's sealed liquor. At least five days prior to an approved private fair and festival, an authorized distillery, mini-distillery, or micro-distillery shall provide a copy of a written agreement to sell only liquor manufactured by the licensed distillery, mini-distillery, or micro-distillery at the private fair and festival's licensed premises. If approved, an authorized distillery, mini-distillery, or micro-distillery may conduct on-premises and off-premises consumption sales of its liquor from a designated booth at the private fair and festival as set forth in §60-7-8a of this code. All authorized and approved distilleries, mini-distilleries, and micro-distilleries' off-premises consumption sales shall comply with all retail requirements in §60-3A-1 et seq. of this code, and specifically §60-3A-17 of this code with respect to all markups, taxes, and fees and also all retail requirements of §60-7-1 et seq. of this code when applicable. Additionally, every authorized distillery, mini-distillery, and micro-distillery may provide samples to patrons who are 21 years of age and older and who are not intoxicated. The liquor samples of the licensed distillery, mini-distillery, or micro-distillery's product on any sampling day shall not exceed six ounces in total volume. Samples may be mixed with each other or with non-alcoholic liquids as long as the total amount of the liquor sampled does not exceed six ounces.
(c) Payment of taxes and fees. — The distillery, mini-distillery, or micro-distillery shall pay all taxes and fees required of licensed retailers and meet applicable licensing provisions as required by this chapter and by rule of the commissioner, except for including payments of the wholesale markup percentage and the handling fee provided by rule of the commissioner: Provided, That all liquor for sale to customers from the distillery, mini-distillery, or micro-distillery for off-premises consumption is subject of a five percent wholesale markup fee and an 80 cents per case bailment fee to be paid to the commissioner: Provided, however, That liquor sold by the distillery, mini-distillery, or micro-distillery shall not be priced less than the price set by the commissioner pursuant §60-3A-17 of this code.
(d) Payments to market zone retailers. — Each distillery, mini-distillery, or micro-distillery shall submit to the commissioner two percent of the gross sales price of each retail liquor sale for the value of all sales at the distillery, mini-distillery, or micro-distillery each month. Any sales by a distillery, mini-distillery, or micro-distillery at a private fair and festival are treated as occurring on their licensed premises for purposes of this market zone calculation. This collection shall be distributed by the commissioner, at least quarterly, to each market zone retailer located in the distillery, mini-distillery, or micro-distillery's market zone, proportionate to each market zone retailer's annual gross prior years pretax value sales. The maximum amount of market zone payments that a distillery, mini-distillery, or micro-distillery shall submit to the commissioner is $15,000 per annum.
(e) Limitations on licensees. — A distillery, mini-distillery, or micro-distillery may not produce more than 50,000 gallons per calendar year. The commissioner may issue more than one distillery, mini-distillery, or micro-distillery license to a single person or entity and a person may hold both a distillery and a mini-distillery license. The owners of a licensed distillery, mini-distillery, or micro-distillery may operate a winery, farm winery, brewery, or as a resident brewer as otherwise specified in the code.
(f) Building code and tax classification. — Notwithstanding any provision of this code to the contrary, the mere addition of a distillery, mini-distillery, or micro-distillery licensed under this article on a property does not change the nature or use of the property which otherwise qualifies as agricultural use for building code and property tax classification purposes.
(g) A political subdivision of this state may not regulate any of the following activities of a distillery, mini-distillery, or micro-distillery licensed and operating in accordance with this section:
(1) The on-premises sale, tasting, or consumption of liquor during business hours set forth in §60-7-12 of this code;
(2) The storage, warehousing, and wholesaling of liquor in accordance with the rules of the commissioner and federal law or regulations; or
(3) The sale of liquor related items including, but not limited to, the sale of pre-packaged food not requiring kitchen preparation that are incidental to the sale of liquor and on-premises consumption.
(h) Beginning on July 1, 2030, a distillery, mini-distillery, or micro-distillery licensed under this article may self-distribute, including lawful sales subject to all taxes, markups, market zone payments, and fees, to licensed private venues under §60-7-1 et seq. of this code within the market zone or contiguous market zone where the distillery, mini-distillery, or micro-distillery is located. Distribution and sales are treated as occurring on a distillery, mini-distillery, or micro-distillery licensed premises for purposes of the market zone calculation If a market zone is locked out from sales due to its location, the commissioner may approve a distillery, mini-distillery, or micro-distillery who requests to jump market zones to conduct sales and distribute to a licensed private venue in such a market zone.
[Repealed.]
(a) There is hereby created a special permit, designated Class S4, for the sale of liquor, wine, nonintoxicating beer, and nonintoxicating craft beer in a private outdoor designated area that has been approved by a municipality pursuant to §8-12-26 of this code. Each Class S4 permittee may sell, furnish, or serve liquor, wine, nonintoxicating beer, and nonintoxicating craft beer as provided in this section.
(b) Definitions:
(1) "Private outdoor designated area" means public property that has become a legally demarcated area established by a municipal ordinance as set forth in §8-12-26 of this code for the consumption of liquor, wine, nonintoxicating beer, and nonintoxicating craft beer.
(2) "Qualified permit holder" means the holder of any of the following:
(i) A Class A private club type license or Class S2 or Class S3 license issued under this article;
(ii) A Class A tavern or brewpub license or Class S or Class S1 license issued under §11-16-1 et seq. of this code;
(iii) A Class A private wine venue restaurant, private wine bed and breakfast, or private wine spa license issued under §60-8-1 et seq. of this code;
(iv) A Class A hard cider license issued under §60-8A-1 et seq. of this code; or
(v) A Class S4N permit issued under §60-7-8h of this code.
(c) To be eligible for the special Class S4 permit authorized by subsection (a) of this section, the qualified permit holder shall:
(1) Operate in a private outdoor designated area created by municipal ordinance as set forth in §8-12-26 of this code, and provide the commissioner a copy of the certified ordinance from the municipality;
(2) Apply to the commissioner for the special permit prior to operating in an approved private outdoor designated area on an application provided by the commissioner;
(3) Pay a nonrefundable non-prorated annual special permit fee of $100 to the commissioner: Provided, That this fee does not apply to qualified permit holders with a Class S1, Class S2, or Class S3 license, which are subject only to the applicable fees in §11-16-1 et seq. and §60-7-1 et seq. of this code;
(4) Be in compliance with all state and federal laws and be in good standing with the commissioner;
(5) Be approved by the municipality to operate in the private outdoor designated area;
(6) Provide the days and hours of operation in the private outdoor designated area;
(7) Provide, in conjunction with the municipality, adequate restroom facilities, whether permanent or portable, to serve the members, patrons, and guests who will be attending the private outdoor designated area;
(8) Provide a security plan for the private outdoor designated area indicating: All qualified permit holders' licensed premises where alcohol will be served in approved non-glass containers; all entrances and exits in order to verify members', patrons', and guests' ages, and to assess whether a member, patron, or guest is under 21 years of age or intoxicated; and a plan to provide for the public health and safety of members, patrons, and guests;
(9) Provide a floorplan for the private outdoor designated area indicating a legally demarcated area that is bounded or uses signage to safely account for the ingress and egress of members, patrons, and guests who will be within the private outdoor designated area and also be permitted to carry liquor, wine, nonintoxicating beer, and nonintoxicating craft beer on and off of the qualified permit holders' licensed premises and within the private outdoor designated area when contained in an approved non-glass container: Provided, That customers within the private outdoor designated area may carry alcoholic beverages purchased from any holder of a Class S4 or S4N permit and served in an approved non-glass container into and out of, and consume the beverages within, the establishment of any other holder of a Class S4 or S4N permit within the applicable private outdoor designated area. The private outdoor designated area's floorplan does comprise a separate licensed premises authorized only for the lawful consumption of liquor, wine, nonintoxicating beer, or nonintoxicating craft beer throughout the licensed premises when lawfully purchased from a qualified permit holder;
(10) Meet and be subject to all other applicable license requirements;
(11) Provide a plan to prevent members, guests, and patrons from bringing, consuming, or selling alcohol not in an approved non-glass container in the private outdoor designated area; and
(12) Use an age verification system approved by the commissioner.
(d) Notwithstanding the requirement to acquire a Class S4 or S4N permit to operate within a private outdoor designated area set forth in §60-7-8g(c) of this code, the holder of a Class S, Class S1, Class S2, or Class S3 license may participate in a private outdoor designated area on the premises of a Class S4 or S4N permit holder if that Class S4 or S4N permit holder grants permission, in writing, for the Class S, Class S1, Class S2, or Class S3 licensee to participate. A Class S, Class S1, Class S2, or Class S3 licensee may not participate in a private outdoor designated area pursuant to such written permission unless it has first met all applicable permit and fee requirements found in §11-16-1 et seq. and §60-7-1 et seq. of this code.
(e) As set forth in §8-12-26 of this code a municipality may, by ordinance, establish a private outdoor designated area where the municipality may zone, set requirements, and establish conditions for safe operation of a private outdoor designated area by qualified permit holders.
(f) A municipality is responsible for the enforcement of any criminal violations occurring in a private outdoor designated area and shall report such violations to the commissioner for a determination of any violation of §11-16-1 et seq. and chapter 60 of this code.
(g) The commissioner shall enforce any violations of §11-16-1 et seq. and §60-1-1 et seq. of this code committed by individual qualified permit holders against their permit and any other current license issued by the commissioner to the qualified permit holder alleged to be in violation.
(h) A qualified permit holder that is separately authorized for an outdoor dining area or sidewalk dining area may continue to operate those areas in conjunction with the private outdoor designated area subject to the commissioner's requirements. Notwithstanding any other section of the code, a private outdoor designated area is authorized to simultaneously host multiple qualified permit holders as defined in §60-7-1 et seq. of the code.
(i) A qualified permit holder that also is licensed and operates a Class A licensee under §11-16-1 et seq. of this code, §60-7-1 et seq. of this code, or §60-8-1 et seq. of this code, and that is approved for operating within the private outdoor designated area may operate a pedal bike for alcohol sales authorized by the Class A licensee’s license on a pedal bike while the pedal bike is operating in the private outdoor designated area. A pedal bike is a pedal-powered portable bar on wheels, with a driver in the captain’s seat, capable of holding between 10 to 16 patrons who may pedal while being served alcohol and consuming alcohol from a private outdoor designated area cup while on the pedal bike. Additional pedal bike requirements:
(1) The pedal bike must have pedals for each patron and may have an electric or gas assist for the pedaling, and may only operate on streets with a posted speed limit of 35 miles per hour or less within the private outdoor designated area.
(2) Patrons on the pedal bike must all be verified as 21 years of age or older.
(3) The pedal bike must be approved by the commissioner, and a municipality must authorize the pedal bike’s alcohol sales and the pedal bike’s operation on public roads within a private outdoor designated area. Further, the municipality must exempt the pedal bike driver from any open container laws and driving-under-the-influence laws that would hold the driver responsible for patrons who are being sold, tendered, served, and consuming alcohol while passengers on the pedal bike in the private outdoor designated area.
(4) The driver may not consume alcohol, if the driver is found to have consumed alcohol, then this privilege may be revoked immediately by the commissioner and the municipality.
(5) The patrons may leave the pedal bike and take their private outdoor designated area cup containing alcohol from the pedal bike to the private outdoor designated area and continue to consume the alcohol from the cup, if they remain in the private outdoor designated area.
(6) There may not be any glass containers used for serving, tendering, selling, or consuming alcohol or non-alcohol drinks on the pedal bike.
(j) A licensee permitted under this section is subject to all other provisions of the article under which the licensee's license is issued, as well as to the rules and orders of the commissioner: Provided, That the commissioner may, by rule or order, allow certain waivers or exceptions with respect to those provisions, rules, or orders as required by the circumstances of the operation of qualified permit holders in each private outdoor designated area. The commissioner may revoke or suspend immediately any permit issued under this section prior to any notice or hearing, notwithstanding §60-7-13a of this code: Provided, however, That under no circumstances may the provisions of §60-7-12 of this code be waived or an exception granted with respect thereto.
It is hereby found by the Legislature and declared to be the policy of this state that it is in the public interest to regulate and control the manufacture, sale, distribution, transportation, storage, and consumption of the beverages regulated by this article within this state and that, therefore, the provisions of this article are a necessary, proper, and valid exercise of the police powers of this state and are intended for the protection of the public safety, welfare, health, peace, and morals and are further intended to eliminate, or to minimize to the extent practicable, the evils attendant to the unregulated, unlicensed, and unlawful manufacture, sale, distribution, transportation, storage, and consumption of such beverages and are further intended to promote temperance in the use and consumption thereof. The Legislature further finds and declares that advertising is essential to the growth of business and job promotion within the state. In order to further these ends, the provisions of this article and of the rules promulgated pursuant thereto, shall be construed so that the accomplishment of these stated purposes may be effectuated.
As used in this chapter, "low-proof spirit alcohol products" mean any alcoholic liquor beverage drink, other than wine, beer, or nonintoxicating beer, containing 0.5 percent or more of alcohol by volume, but not more than 14 percent alcohol by volume obtained by distillation, mixed with drinkable water, fruit juices, flavoring or coloring materials, other alcoholic or non-alcoholic beverages or other ingredients in a solution, which are packaged in containers not to exceed 24 fluid ounces.
(a) Manufacture of low-proof spirit alcohol products. – Except as stated in this article, all distillery licenses and other requirements for the manufacture of alcoholic liquors set forth in §60-4-2 and §60-4-3a of this code, and any rules promulgated by the commissioner thereunder, shall apply to the manufacture of low-proof spirit alcohol products. All procedures for obtaining and maintaining a license for the manufacture of low-proof spirit alcohol products shall comply with the requirements of §60-4-1 et seq. of this code, and any rules promulgated by the commissioner thereunder. No additional alcoholic liquor license fees shall be charged for the privilege of manufacturing low-proof spirit alcohol products.
(b) Sales of low-proof spirit alcohol product. – Any person or licensee legally authorized to manufacture, distribute, or sell low-proof spirit alcohol products may sell low-proof spirit alcohol products in the same manner and to the same persons, and subject to the same limitations and conditions, as such license or legal right authorizes him or her to manufacture, distribute, or sell nonintoxicating beer as set forth in §11-16-1 et seq. of this code: Provided, That no person or licensee shall be permitted to sell low-proof spirit alcohol products in growlers as defined in §11-16-1 et seq. of this code, and any rules promulgated by the commissioner thereunder. The provisions of §60-4-3 of this code, which require that sales by a manufacturer of alcoholic liquors may only be sold to the West Virginia Alcohol Beverage Control Commissioner and to wholesalers and retailers licensed as provided in chapter 60 of this code, are inapplicable to sales of low-proof spirit alcohol products. No additional license fees shall be charged for the privilege of selling low-proof spirit alcohol products.
(c) Distribution of low-proof spirit alcohol products. – Except as stated in this article, the distribution of low-proof spirit alcohol products shall be administered and carried out in the same manner as proscribed for nonintoxicating beer distribution as set forth in §11-16-1 et seq. of this code, and any rules promulgated by the commissioner thereunder. Any person or licensee legally authorized to distribute low-proof spirit alcohol products must distribute low-proof spirit alcohol products in the same manner and to the same persons, and subject to the same limitations and conditions, as a license or legal right would authorize him or her to distribute nonintoxicating beer. No manufacturer or distillery may self-distribute low-proof spirit alcohol products. No additional license fees shall be charged for the privilege of distributing low-proof spirit alcohol products.
(a) There is hereby levied and imposed on all low-proof spirit alcohol products sold on and after the effective date, by every distillery, or supplier to distributors, there is hereby levied and imposed on all low-proof spirit alcohol products sold by distilleries, manufacturers, and suppliers to distributors, a tax of $1.25 per gallon, in like ratio for any partial gallon or other unit of measure.
(b) Before the 16th day of each month thereafter, every distillery, supplier, distributor, and direct shipper shall make a written report under oath to the Tax Commissioner and the commissioner showing the identity of the purchasing person, the quantity, label, and alcoholic content of low-proof spirit alcohol products sold by the distillery and supplier to West Virginia distributors or the direct shipper to persons 21 years of age or older who reside in West Virginia during the preceding month and at the same time shall pay the tax imposed by this article on the low-proof spirit alcohol products sold to the distributor or to persons 21 years of age or older who reside in West Virginia during the preceding month to the Tax Commissioner. The reports shall contain other information and be in the form required by the Tax Commissioner. For purposes of this article, the reports required by this section are considered tax returns covered by the provisions of §11-10-1 et seq. of this code. Failure to timely file the tax returns within five calendar days of the 16th day of each month subjects a distillery, supplier, distributor, and direct shipper to penalties under §60-8-18 of this code.
(c) Administrative procedures. – Each and every provision of the West Virginia Tax Procedure and Administration Act set forth in §11-10-1 et seq. of this code applies to the taxes imposed pursuant to this section, except as otherwise expressly provided in this article, with like effect as if that act were applicable only to the taxes imposed by this section and were set forth in extenso in this article.
(d) Criminal penalties. – Each and every provision of the West Virginia Tax Crimes and Penalties Act set forth in §11-9-1 et seq. of this code applies to the taxes imposed pursuant to this section with like effect as if that act were applicable only to the taxes imposed pursuant to this article and were set forth in extenso in this article.
(e) The Tax Commissioner may propose legislative rules for legislative approval, pursuant to §29A-3-1 et seq. of this code, to implement this section.
The West Virginia Alcoholic Beverage Control Commissioner may propose legislative rules for legislative approval, pursuant to §29A-3-1 et seq. of this code, to implement this article.
Adopted
Rejected
Adopted
Rejected