H. B. 2907
(By Delegates Boggs, Cowles,
Walker, Campbell, Argento, Smith and Ashley)
[Introduced January 13, 2010; referred to the
Committee on Agriculture then the Judiciary.]
A BILL to amend and reenact §60-1-5 of the Code of West Virginia,
1931, as amended; to amend and reenact §60-4-3b of said code;
to amend and reenact §60-6-1 of said code; to amend and
reenact §60-8-1, §60-8-2, §60-8-3, §60-8-6, §60-8-6a,
§60-8-19, §60-8-20, §60-8-28, §60-8-32 and §60-8-34 of said
code; and to amend said code by adding thereto two new
sections, designated §60-8-3a and §60-8-3b, all relating to
sales of wine; adding and removing certain definitions;
providing for winery and farm winery license to manufacture
and sell; authorizing wine specialty shops to conduct wine
sampling events and wine-tasting events without obtaining a
separate license; deleting provisions relating to wine tasting
and wine sampling licenses; limiting direct shipping licenses
to wineries or farm wineries producing fifty thousand gallons
of wine or less per year; requiring the Alcohol Beverage
Control Commissioner to propose rules for promulgation setting standards for wine brand and label review and registration;
creating a limited wine retailer license; allowing wine
manufacturers, suppliers and distributors to agree in writing
to a period of less than ninety days for termination of a
distribution agreement; prohibiting limited wine retailers and
wineries from selling during certain times.
Be it enacted by the Legislature of West Virginia:
That §60-1-5 of the Code of West Virginia, 1931, as amended;
be amended and reenacted; that §60-4-3b be amended and reenacted;
that §60-6-1 be amended and reenacted; that §60-8-1, §60-8-2,
§60-8-3, §60-8-6, §60-8-6a, §60-8-19, §60-8-20, §60-8-28, §60-8-32
and §60-8-34 be amended and reenacted; and that said code be
amended by adding thereto two new sections, designated §60-8-3a and
§60-8-3b, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§60-1-5. Definitions.
(a) For the purposes of this chapter:
(1) "Agency" means a drugstore, grocery store or general store
designated as a retail distributor of alcoholic liquor by the West
Virginia Alcohol Beverage Control Commissioner.
(2) "Alcohol" shall mean means ethyl alcohol whatever its
origin and shall include includes synthetic ethyl alcohol but not
denatured alcohol.
(3) "Alcoholic liquor" includes alcohol, beer, wine and spirits and any liquid or solid capable of being used as a
beverage, but does not include nonintoxicating beer.
(4) "Beer" shall mean 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) "Complimentary sample" means a serving of not more than
one ounce of alcoholic liquors or beer.
(8) "Distillery" means an establishment where alcoholic liquor
other than wine or beer is manufactured.
(9) "Farm winery" means an establishment which:
(A) Manufactures, in any year, no more than fifty thousand
gallons of:
(i) Table wine and/or nonfortified dessert wine exclusively by
natural fermentation from grapes, other fruits, honey or other
agricultural products containing sugar;
(ii) Port, sherry and Madeira wine matured in wooden barrels
or casks, the alcohol content of which does not exceed 22% by
volume; or
(iii) Any combination of subparagraphs (i) and (ii) of this paragraph;
(B) Grows or produces at least 25% of the raw products used to
make wine on the premises of the farm winery; and
(C) Imports no more than 25% of the raw products used to make
the wine from any source outside the state in which the farm winery
is located.
(10) "Intoxicated" means impairment of a person's faculties
due to alcohol, drugs or other substances to the point that the
person's physical or mental control or both are markedly
diminished.
(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 includes, among others,
distillers, rectifiers, wine makers and brewers.
(13) "Nonintoxicating beer" shall mean 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 subdivision five, section two three, article sixteen,
chapter eleven 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, limited liability company, corporation or voluntary
association.
(16) "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"
does not mean or include any of the places named in this
subdivision 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.
(17) "Sale" means any transfer, exchange or barter in any
manner or by any means, for a consideration, and includes all sales
made by a principal, proprietor, agent or employee.
(18) "Selling" includes solicitation or receipt of orders;
possession for sale; and possession with intent to sell.
(19) "Spirits" means any alcoholic beverage obtained by
distillation and mixed with potable water and other substances in
solution, and includes, but is not limited to, brandy, rum,
whiskey, bourbon, scotch, rye vodka, tequila, cordials and gin.
(20) "State liquor store" means a store established and
operated by the commissioner under this chapter for the sale of
alcoholic liquor in the original package for consumption off the
premises.
(21) "Wine" shall mean means any alcoholic beverage obtained
by the fermentation of the natural content of fruits or other
agricultural products containing sugar.
"Spirits" shall mean any alcoholic beverage obtained by
distillation and mixed with potable water and other substances in
solution, and includes brandy, rum, whiskey, cordials and gin.
"Alcoholic liquor" shall include alcohol, beer, wine and
spirits, and any liquid or solid capable of being used as a
beverage, but shall not include nonintoxicating beer.
"Original package" shall mean any closed or sealed container
or receptacle used for holding alcoholic liquor.
"Sale" shall mean any transfer, exchange or barter in any
manner or by any means, for a consideration, and shall include all
sales made by principal, proprietor, agent or employee.
"Selling" shall include solicitation or receipt of orders;
possession for sale; and possession with intent to sell.
"Person" shall mean an individual, firm, partnership, limited
partnership, corporation or voluntary association.
"Manufacture" means to distill, rectify, ferment, brew, make,
mix, concoct, process, blend, bottle, or fill an original package
with any alcoholic liquor.
"Manufacturer" shall mean any person engaged in the
manufacture of any alcoholic liquor, and among others includes a
distiller, a rectifier, a wine maker and a brewer.
"Brewery" shall mean an establishment where beer is
manufactured or in any way prepared.
(22) "Winery" shall mean means an establishment where wine is
manufactured or in any way prepared.
"Distillery" shall mean an establishment where alcoholic
liquor other than wine or beer is manufactured or in any way
prepared.
"Public place" shall mean 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.
"State liquor store" shall mean 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.
"An agency" shall mean 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
Commissioner.
"Department" shall mean the organization through which the
commission exercises powers imposed upon it by this chapter.
"Commissioner" or "commission" shall mean the West Virginia
Alcohol Beverage Control Commissioner.
"Intoxicated" shall mean having one's faculties impaired by
alcohol or other drugs to the point where physical or mental
control or both are markedly diminished.
(b) The definitions contained in subsection (a) of this
section are to be read congruently with the definitions contained
in article sixteen, chapter eleven of this code.
ARTICLE 4. LICENSES.
§60-4-3b. Winery and farm winery license to manufacture and sell.
(a) Sales of wine. -- An operator of a winery or farm winery
may offer wine produced by the winery or farm winery for retail
sale to customers from the winery or farm winery for consumption
off the premises only. Except for free complimentary samples
offered pursuant to section one, article six of this chapter,
customers are prohibited from consuming any wine on the premises of
the winery or farm winery, unless such the winery or farm winery
has obtained a multicapacity winery or farm winery license.
A winery is authorized to sell wine pursuant to its
multicapacity winery license issued under section 3(a)(10), article
eight, of this chapter and a farm winery is authorized to sell wine
pursuant to its multicapacity farm winery license issued under section 3(a)(9), article eight, of this chapter, except for free
complimentary samples offered pursuant to section one, article six
of this chapter, a winery or farm winery may not allow customers to
consume, taste or sample wine on the premises of the winery or farm
winery.
(b) Retail sales. -- Every licensed winery or farm winery
holding a multicapacity winery license or otherwise licensed to
sell wine at retail, by direct shipping or as a supplier shall
comply with the provisions of articles three, four and eight of
this chapter as applicable to wine retailers, wineries and
suppliers when properly licensed in such capacities each capacity
in which the winery or farm winery is licensed.
(c) Payment of taxes and fees. -- The A winery holding a
multicapacity winery license or farm winery holding a multicapacity
winery license shall pay all required taxes and fees required of
licensed wine retailers and meet comply with applicable licensing
provisions as required by requirements of this chapter and by rule
the rules of the commissioner. Each winery or farm winery acting
as its own supplier shall submit to the Tax Commissioner the liter
tax for all sales at the winery or farm winery each month, as
provided in article eight of this chapter.
(d) Advertising. -- A winery or farm winery may advertise a
particular brand or brands and the price of wine produced by it and
the price of the wine produced, subject to federal requirements or restrictions.
(e) Limitations on licensees. -- (wineries Struck entire
section but 4 and 5)
(1) A winery or farm winery must maintain shall obtain
separate winery or farm winery licenses to act as a wine supplier,
retailer and or direct shipper licenses when acting in one or more
of those capacities and must pay all associated license fees,
unless such the winery or farm winery holds obtains a multicapacity
winery license issued pursuant to the provisions of subdivision
(12), subsection (b), section three, article eight of this chapter.
(2) A winery or farm winery, if holding the appropriate
licenses or a multicapacity winery or farm winery license, may act
as its own:
(A) Supplier;
(B) Retailer for off-premises consumption of its wine as
specified in section two, article six of this chapter;
(C) Private wine restaurant;
(D) Private Wine Spa;
(E) Private Wine Bed and Breakfast; and
(F) Direct shipper. for wine produced by the winery or farm
winery.
(3) Except as provided in subdivision (2) of this subsection,
all wineries must shall use a distributor to distribute and sell
their wine in the this state, except for farm wineries unless the winery holds a direct shipper license pursuant to section six-a,
article eight of this chapter.
(4) No more than one winery or farm winery license may be
issued to a single person or entity. and
(5) No person may hold both a winery and a farm winery
license.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-1. When lawful to possess, use or serve alcoholic liquors.
The provisions of this chapter may do not prevent:
(1) A person from keeping and possessing lawfully acquired
alcoholic liquors in his or her residence for his or her personal
use or the personal use of himself or herself, his or her family,
his or her employee employees or his or her guests; if the
alcoholic liquors have been lawfully acquired by him or her
(2) A person or his or her family or employee from giving or
serving such alcoholic liquors to guests in the his or her
residence, when the gift or service is not for the purpose of
evading the provisions of this chapter;
(3) The holder of a winery or a farm winery license from
serving complimentary samples of its wine in moderate quantities
for tasting on the winery or the farm winery premises; and or
(4) The holder of a distillery or a mini-distillery license
from serving complimentary samples of its alcoholic liquor in
moderate quantities for tasting on the distillery or the mini-distillery premises.
ARTICLE 8. SALE OF WINES.
§60-8-1. Construction and application of article.
(a) Every supplier must use a distributor to distribute wine
for retail sale in this state, except for such sales that occur by
wineries, farm wineries or suppliers holding a direct shipper's
license or farm wineries holding a multicapacity farm winery
license The provisions of part II of this article shall have
general application apply generally to the distribution and retail
sale of wine in this state. The provisions of part III of this
article shall relate solely to the distribution and the regulation
of suppliers and distributors of such wines as may be permitted to
be sold at retail pursuant to the provisions of this article. The
provisions of part IV of this article shall relate solely to the
retail sale of wine. in grocery stores, as the term "grocery
store" is defined in this article, and the retail sale of wine in
wine specialty shops as defined in this article
(b) In the event of any inconsistency of any between the
provisions of Part II and the provisions of either Part III or Part
IV of this article, the provisions of either Part III or Part IV
shall prevail. to the extent of such inconsistency
(b) (c) In the event of any inconsistency between any of the
provisions of this article and provisions of any other article of
this chapter or of this code, the provisions of this article shall prevail.
to the extent of any such inconsistency
(d) To the extent that the provisions of other articles of
this chapter exclusive of this article may be given application
without creating an inconsistency with the provisions of this
article, the provisions of the other articles of this chapter
exclusive of this article, shall apply to the same extent as if
this article did not exist.
PART II. Sale of Wine Generally.
§60-8-2. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(1) "Case" means any combination of packages containing not
more than nine liters of wine.
(2) "Commissioner" or "commission" means the West Virginia
Alcohol Beverage Control Commissioner.
(3) "Consumer" means a natural person who is age 21 or older
and does not hold a license issued pursuant to this article.
(5) "Direct shipper" means a winery or farm winery holding a
multicapacity winery license or multicapacity farm winery license
or retailer who is authorized to ship wine directly to an adult
West Virginia consumer pursuant to section six-a of this article
for the consumer's personal use and consumption and not for resale.
(4) "Distributor" means any a person whose who:
(A) Has his or her principal place of business is within the territorial boundaries of the State of West Virginia;
(B) Who makes Purchases wine, nonfortified dessert wine, port,
sherry or Madeira wines from a supplier;
(C)(i) To sell or distribute Sells table wine to retailers,
grocery stores, private wine bed and breakfasts, private wine
restaurants, private wine spas or private clubs; or wine specialty
shops and that
(ii) Sells or distributes nonfortified dessert wine, port,
sherry and Madeira wines to wine specialty shops, private wine
restaurants or private clubs or retailers under authority of this
article; and
(D) Maintains a warehouse in this state for the distribution
of wine.
(6) "Fortified wine" shall mean means any wine to which brandy
or other alcohol has been added. and shall include For purposes of
this article, the term "fortified wine" includes nonfortified
dessert wines which are not fortified having have an alcohol
content by volume of at least 14.1% and not exceeding 16%.
(7) "Grocery store" means any retail establishment, commonly
known as a grocery store, supermarket, delicatessen, caterer or
party supply store where which sells food, food products and
supplies for the table are sold for consumption off the premises
with average monthly sales (exclusive of excluding sales of wine)
of not less than $500 and an average monthly inventory (exclusive of
excluding inventory of wine) of not less than $3,000. The term
"grocery store"
shall also include and mean includes a separate and
segregated portion of any other retail store which is dedicated
solely exclusively to the sale of food, food products and supplies
for the table for consumption off the premises with average monthly
sales with respect to such separate or segregated portion
(
exclusive of excluding sales of wine) of not less than $3,000 and
an average monthly inventory (
exclusive of excluding inventory of
wine) of not less than $3,000.
(8) "Licensee" means the holder of a license granted under the
provisions of this article or chapter.
(9) "Limited retailer" means any person licensed to sell only
West Virginia wine produced by a farm winery for off premises
consumption and authorized to provide wine samplings under this
article.
(10) "Nonfortifed dessert wine" means wine to which no alcohol
has been added but which has an alcohol content by volume of at
least 14.1% and not more than 16%.
(11) "Private wine bed and breakfast" means any person who
operates a business, with the sole purpose of which is providing,
in a residential or country setting, lodging, such as a hotel,
motel, inn or other such establishment properly zoned as to its
municipality or under local ordinances lodging and meals to its
customers in the course of their stay at the establishment, which: business also
(1) Is a partnership, limited partnership, corporation,
unincorporated association or other business entity; which as part
of its general business purpose
(A) Provides meals on its premises to its members and their
guests as part of its general business purpose;
(2) (B) Is licensed under the provisions of this article as to
all of its premises or as to a separate segregated portion of its
premises to serve wine on the premises to its members and their
guests when such sale accompanies in conjunction with the serving
of food or meals; and
(3) (C) Admits only duly elected and approved dues-paying
members and their guests while in the company of a member and does
not admit the general public.
(12) "Private wine restaurant" means a restaurant which person
who operates a business, the principal purpose of which is serving
meals on its premises to members and their guests and;
(1) Is a partnership, limited partnership, corporation,
unincorporated association or other business entity which has as
its principal purpose the business of serving meals on its premises
to its members and their guests;
(2) (A) Is licensed under the provisions of this article as to
all of its premises or as to a separate segregated portion of its
premises to serve wine on its premises to its members and their guests
when such sale accompanies in conjunction with the serving
of food or meals; and
(3) (B) Admits only duly elected and approved dues-paying
members and their guests while in the company of a member and does
not admit the general public. Private clubs that meet satisfy the
private wine restaurant requirements numbered (1), (2) and (3) in
this definition of paragraphs (A) and (B) of this subdivision shall
be considered private wine restaurants.
(13) "Private wine spa" means any a person who operates a
business, with the sole purpose of which is providing commercial
facilities devoted especially to health, fitness, weight loss,
beauty, therapeutic services and relaxation, and may be also
including a licensed massage parlor or a salon with licensed
beauticians or stylists and which: business also
(1) Is a partnership, limited partnership, corporation,
unincorporated association or other business entity which as part
of its general business purpose;
(A) Provides meals on its premises to its members and their
guests as part of its general business purpose;
(2) (B) Is licensed under the provisions of this article as to
all of its premises or as to a separate segregated portion of its
premises to serve up to two glasses of wine on the premises to its
members and their guests when such sale accompanies in conjunction
with the serving of food or meals; and
(3) (C) Admits only duly elected and approved dues-paying
members and their guests while in the company of a member and does
not admit the general public.
(14) "Retailer" means any person licensed to sell wine at
retail to the public at his or her established place of business
for off-premises consumption and who is licensed to do so under
authority of this article.
(15) "Supplier" means any manufacturer, producer, processor,
winery, farm winery, national distributor or other supplier
provider of wine who which sells or offers to sell or solicits or
negotiates the sale of wine to any licensed West Virginia
distributor.
(16) "Table wine" means any alcoholic beverage obtained by the
natural fermentation of grapes, other fruits, honey or other
agricultural products containing sugar to which no alcohol has been
added and which has an alcohol content by volume of not more than
14%.
(17) "Tax" includes within its meaning includes any interest,
additions to tax and penalties.
(18) "Taxpayer" means any person liable for any tax, interest,
additions to tax or penalty under the provisions of this article
and any person claiming a refund of tax.
(19) "Varietal wine" means any wine labeled according to the
grape variety from which such the wine is made.
(20) "Vintage wine" or "vintage-dated wine" means wines from
which the grapes used to produce such the wine are harvested during
a particular year or wines produced from the grapes of a particular
harvest in a particular region of production.
(21) "Wine" means any alcoholic beverage obtained by the
natural fermentation of the natural content of grapes, other fruits
or honey or other agricultural products containing sugar and to
which no alcohol has been added, and shall include including table
wine. and shall exclude The term "wine" does not include fortified
wine and shall also exclude any product defined as or embraced
within the definition of or nonintoxicating beer under the
provisions of article sixteen, chapter eleven of this code.
(22) "Wine sampling" means a gathering at which a wine
specialty shop, limited wine retailer or farm winery may serve up
to three complimentary samples of wine to any one consumer in one
day as provided in section three of this article.
(23) "Wine specialty shop" means a retailer who: shall deal
(A)(i) Deals principally in the retail sale of table wine,
nonfortified dessert wines, wine accessories and food or foodstuffs
normally associated with wine; and
(1) Who shall maintain (ii) Maintains a representative number
of such wines for sale in his or her wine inventory which are
designated by label as varietal wine, vintage, generic and/or
according to region of production; and the inventory shall contain
(iii) Maintains not less than 15% of its wine inventory in
vintage or vintage-dated wine by actual bottle count. and (2)
(B) A wine speciality shop may, any other provisions of this
code to the contrary notwithstanding, may maintain an inventory of
port, sherry and Madeira wines, matured in wooden barrels or casks
and having an alcoholic content of not more than 22% alcohol by
volume. and which have been matured in wooden barrels or casks
(24) "Wine taster's club" means an organization affiliated
with a wine specialty shop or farm winery, having at least 50 duly
elected or approved dues-paying members in good standing who gather
to taste complimentary portions of wine as provided in section
three of this article. Every member of a wine taster's club must
be 21 years of age or older.
(25) "Wine tasting" means a gathering at which a wine
specialty shop or farm winery serves members of a wine taster's
club and their guests complimentary portions of wine of no more
than four ounces each in the manner provided in section three of
this article.
§60-8-3. Licenses; fees; General Restrictions.
(a) No person may engage in business in the capacity of a
winery, farm winery, supplier, distributor, retailer, private wine
bed and breakfast, private wine restaurant, private wine spa or
wine specialty shop without first obtaining a license from the
commissioner, nor shall 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. No person, except for a winery or farm winery, may
be licensed simultaneously as a supplier and a retailer. No person
may be licensed simultaneously as a supplier and a private wine bed
and breakfast, private wine restaurant or a private wine spa. No
person may be licensed simultaneously as a distributor and a
private wine bed and breakfast, a private wine restaurant or a
private wine spa. No person may be licensed simultaneously as a
retailer and a private wine bed and breakfast, a private wine
restaurant or a private wine spa.
(b) The commissioner shall collect an annual fee for licenses
issued under this article, as follows:
(1) One hundred fifty dollars per year for a supplier's
license;
(2) Twenty-five hundred 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 dollars as
herein provided;
(3) One hundred fifty dollars per year for a retailer's
license;
(4) Two hundred fifty dollars per year for a wine specialty shop license, in addition to any other licensing fees paid by a
winery or retailer holding such a license, except for the amount of
the license fee and the restriction to sales of winery or farm
winery wines, a winery or farm winery acting as a wine specialty
shop retailer is subject to all other provisions of this article
which are applicable to a wine specialty shop retailer as defined
in section two of this article;
(5) One hundred fifty dollars per year for a wine tasting
license;
(6) One hundred fifty dollars per year for a private wine bed
and breakfast license, and each separate bed and breakfast 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 one hundred fifty dollars as herein provided;
(7) Two hundred fifty 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 dollars as herein provided;
(8) One hundred fifty dollars per year for a private wine spa
license and each separate private wine spa 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 one hundred fifty dollars as herein provided;
(9) One hundred fifty dollars per year for a wine sampling
license issued for a wine specialty shop under subsection (n) of
this section;
(10) 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
(11) One hundred fifty dollars per year for a direct shipper's
license for a licensee who sells and ships only wine and two
hundred fifty dollars per for a direct shipper's license who ships
and sells wine, nonfortified dessert wine, port, sherry or Madeira
wines.
(12) Three hundred dollars per year for a multicapacity winery
or farm winery license which shall enable the holder to operate as
a retailer, wine specialty shop, supplier and direct shipper
without obtaining an individual license for each capacity.
(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, except as provided by subsection
(k) of this section.
(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 wine specialty shop 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 wine specialty shop shall organize a wine taster's club, which
has at least fifty duly elected or approved dues-paying members in
good standing. Such club shall meet on the wine specialty shop'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 two
hundred fifty dollars regardless of the term of the license unless
the applicant is the manufacturer of said wine on a winery or a
farm winery as defined in section five-a, article one of this
chapter, in which event the fee shall be fifty dollars if the event
is held on the premises of the winery or farm winery. The
application for such license shall contain such 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 festival or fair. A winery or 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 festival or fair. A special
license issued other than to a winery or a farm winery may be
issued to a "wine club" as defined herein below. 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 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 not be admitted to such premises or area. A
wine club licensee under the provisions of this subsection shall be
authorized to 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 subject to all other
provisions of this article and the rules and orders of the
commissioner relating to such special license: Provided, That the
commissioner may by rule, regulation or order provide for certain
waivers or exceptions with respect to such 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 any exception be
granted with respect thereto.
A license issued under the provisions of this subsection and
the licensee holding such license shall not be subject to the
provisions of subsection (g) of this section.
(i) A license to sell wine granted to a private wine bed and
breakfast, private wine restaurant, private wine spa or a private
club under the provisions of this article entitles the operator to
sell and serve wine, for consumption on the premises of the
licensee, when such 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 bed and
breakfast, private wine restaurant, private wine spa or a private
club may permit a person over twenty-one years of age to purchase
wine, consume wine and recork or reseal, using a tamper resistant
cork or seal, up to two separate bottles of unconsumed wine in
conjunction with serving of food or a meal to its members and their
guests in accordance with the provisions of this article and in
accordance with regulations promulgated by the commissioner for the
purpose of consumption of said wine off premises: Provided,
however, That for this article, food or a meal provided by the
private licensee means that the total food purchase, excluding
beverage purchases, taxes, gratuity or other fees is at least
fifteen dollars: Provided further, That a licensed private wine restaurant or a private club may offer for sale for consumption off
the premises, sealed bottles of wine to its customers provided that
no more than one bottle is sold per each person over twenty-one
years of age, as verified by the private wine restaurant or private
club, for consumption off the premises. Such 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. Any sale of wine so made shall be 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 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 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 wine with meals, and to sell
wine by the bottle for off-premises consumption as provided in
subsection (i) of this section. Each restaurant so licensed shall be charged an additional one hundred dollar per year fee.
(l) The commissioner shall establish guidelines to permit
wines to be sold in all stores licensed for retail sales.
(m) Wineries and farm wineries may advertise off premises as
provided in section seven, article twenty-two, chapter seventeen of
this code.
(n) A wine specialty shop under this article may also hold a
wine sampling license authorizing the wine specialty shop to
conduct special wine sampling events at a licensed wine specialty
shop location during regular hours of business. The wine specialty
shop 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 an authorized representative of the
licensed wine specialty shop, winery, farm winery or a
representative of a distributor or registered supplier.
Distributor and supplier representatives attending wine sampling
events must be registered with 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 wine specialty shop
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 licensed farm
winery or a licensed 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, a
distributor or a 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 licensed 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
licensed 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.
(a) The commissioner may issue and collect the stated annual
fee for the following licenses:
(1) Direct shipper's license. -- A direct shipper's license
authorizes a winery, farm winery, limited wine retailer or retailer
to sell and ship up to two cases of wine each month directly to a
West Virginia resident consumer for the consumer's personal use and
consumption and not for resale. The fee for a direct shipper's
license to ship table wine is $150 per year. The fee for a direct
shipper's license to ship nonfortified dessert wine, port, sherry
or Madeira wines in addition to table wine is $250 per year.
(2) Distributor's license. -- A distributor's license
authorizes the licensee to sell wine to licensed retailers, wine
specialty shops, private wine bed and breakfasts, private wine
restaurants, private wine spas and private clubs in this state for
resale as provided in this article. The fee for a distributor's
license is $2,500 per year. A distributor must obtain a separate
license and pay a separate annual license fee of $2,500 for each
separate warehouse or other facility from which the distributor
sells, transfers or delivers wine.
(3) Limited wine retailer license -- A limited retailer
license authorizes the licensee to sell wine produced by West
Virginia farm wineries for consumption off the premises and to conduct wine samplings in accordance with the provisions of this
article. The fee for a limited wine retailer license is $50. The
fee for a limited retailer wine-sampling license is $75. A limited
wine retailer licensee who owns and operates more than one retail
establishment at which wine is sold must obtain a separate limited
wine retailer license and pay a separate annual license fee for
each separate retail establishment. A limited wine-sampling
license authorizes the licensee to conduct wine sampling events on
the licensed premises during regular business hours. Any person
serving complimentary samples must be 21 years of age and an
authorized representative of the licensee. The licensee must
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 and all wines
served must have been purchased from a licensed farm winery or a
licensed distributer.
(4) Multicapacity farm winery license. -- A multicapacity farm
winery license authorizes a farm winery to serve complimentary
wines for tasting on the premises, to operate as a retailer, wine
specialty shop, supplier, direct shipper and distributor of its own
wines, and to conduct wine-tasting events and wine-sampling events
without obtaining a separate license for each activity, A farm
winery must notify the commissioner at least 30 days before it
conducts a wine-tasting and wine-sampling event to secure permission and must comply with all other requirements in this
article governing wine-tasting and wine-sampling events. The fee
for a multicapacity farm winery license is $150 per year.
(5) Multicapacity Winery License. -- A multicapacity winery
license authorizes a winery to sell directly to a distributor, to
direct ship to an adult West Virginia consumer, to serve
complimentary wines for tasting on the premises and to sell on the
premises wine produced by the winery only for consumption off the
premises. The fee for a winery license is $150 per year.
(6) Private wine bed and breakfast license. -- A private wine
bed and breakfast license entitles the licensee to sell wine to a
member or a guest accompanying a member for consumption on the
licensed premises in conjunction with the serving of food or meals
costing at least $10, excluding beverage purchases, taxes, gratuity
or other fees. The fee for a private wine bed and breakfast
license is $150 per year. A licensee who owns or operates more
than one private wine bed and breakfast at which wine is sold must
obtain a separate license and to pay a separate annual license fee
of $150 for each establishment.
(7) (A) Private wine restaurant license. -- A private wine
restaurant license authorizes the licensee to sell wine to a member
or a guest accompanying a member for consumption on the licensed
premises in conjunction with the serving of food or meals costing
at least $10 dollars, excluding beverage purchases, taxes, gratuity or other fees. The fee for a private wine restaurant license is
$250 per year. A licensee who owns or operates more than one
private wine restaurant at which wine is sold must obtain a
separate license and pay a separate annual license fee of $250 for
each establishment.
(B) Private wine restaurant/private club retail license. --
The commissioner may issue a license authorizing a licensed private
wine restaurant or a licensed private club to sell to a customer it
verifies is 21 years of age or older up to two unopened bottles of
wine, in a sealed bag approved by the commissioner, for consumption
off the premises. A licensee selling wine pursuant to this
paragraph may keep and maintain on its premises a supply of wine in
such quantities as may be appropriate for the conduct of operations
thereof. The fee for a license to sell wine pursuant to this
paragraph is $100 per year in addition to any other fees required
to be paid by the licensee.
(C) Private wine spa license. -- A private wine spa license
authorizes the licensee to sell up to two glasses of wine to a
member or a guest accompanying a member for consumption on the
licensed premises in conjunction with the serving of food or meals
costing at least $10 dollars, excluding beverage purchases, taxes,
gratuity or other fees. The fee for a private wine spa license is
$150 per year. A licensee who owns or operates more than one
private wine spa at which wine is sold must obtain a separate license and pay a separate annual license fee of $150 for each
establishment.
(8) Retailer's license. -- A retailer's license authorizes the
licensee to sell wine to consumers for consumption off the licensed
premises and may be issued only to the proprietor or owner of a
grocery store or wine specialty shop, as those terms are defined in
section two of this article. The fee for a retailer's license is
$150 per year. A licensee who owns or operates more than one
retail establishment at which wine is sold must obtain a separate
license and pay a separate annual license fee of $150 for each
separate retail establishment.
(9) Supplier's license. -- A supplier's license authorizes the
licensee to sell wine to a licensed West Virginia distributor for
resale in this state. The fee for a supplier's license is $150 per
year.
(10) Wine specialty shop license. -- (A) A wine specialty shop
license authorizes the licensee to:
(i) Sell table wines, nonfortified dessert wines, and port,
sherry and Madeira wines at retail for consumption off the licensed
premises; wine accessories; wine glasses; wine magazines and
educational materials and other wine-related products;
(ii) To conduct wine-tasting events by forming a wine taster's
club. Attendance at wine-tasting events is limited to wine-
tasting club members and their guests 21 years of age or older. The wine-taster's club may meet no more than once per week either
on the licensed premises of the wine specialty shop when closed to
the general public or in a separate segregated facility to which
the general public is not admitted for the purpose of partaking of
complimentary portions of wine; and
(iii) To conduct wine-sampling events on the licensed premises
during regular business hours. Any person serving complimentary
samples must be 21 years of age and an authorized representative of
a licensed wine specialty shop, winery, distributor or supplier.
Distributor and supplier representatives attending wine-sampling
events must be licensed by the commissioner. The wine specialty
shop must 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 and
all wines served must have been purchased from a licensed farm
winery or a licensed distributor.
(B) The fee for a wine specialty shop license is $400 per
year.
(C) A winery or farm winery with a wine speciality shop
license or a farm winery with a multicapacity winery license must
comply with all requirements of this subdivision relating to wine-
sampling and wine-tasting events.
§60-8-3a. General provisions relating to annual licenses; license
restrictions.
(a) The licensing period for any license issued pursuant to
section three of this article begins on July 1 of each year and
ends on June 30 of the following year. If a license is granted for
a lesser period, the license fee shall be computed semiannually in
proportion to the remainder of the fiscal year.
(b) Wineries may advertise off premises as provided in section
seven, article twenty-two, chapter seventeen of this code.
(c) A person may not:
(1) Engage in business as a winery, farm winery, supplier,
distributor, retailer, limited wine retailer, private wine bed and
breakfast, private wine restaurant, private wine spa or wine
specialty shop without first obtaining a license from the
commissioner or continue to engage in the activity after his or her
license has expired, been suspended or revoked;
(2) Be licensed simultaneously as a distributor and as a
retailer, except for the holder of a multicapacity farm winery
license;
(3) Be licensed simultaneously as a supplier and as a retailer
or limited wine retailer, except for the holder of a multicapacity
winery license;
(4) Be licensed simultaneously as a supplier and as a private
wine bed and breakfast, private wine restaurant or a private wine
spa;
(5) Be licensed simultaneously as a distributor and as a private wine bed and breakfast, a private wine restaurant or a
private wine spa;
(6) Be licensed simultaneously as a retailer or limited wine
retailer and a private wine bed and breakfast, a private wine
restaurant or a private wine spa;
(7) Be licensed simultaneously as a retailer or limited wine
retailer and as a private club pursuant to article seven of this
chapter;
(8) Be licensed simultaneously as a retailer or limited wine
retailer pursuant to this article and as a Class A retail dealer in
nonintoxicating beer pursuant to article sixteen, chapter eleven of
this code: Provided, That a grocery store which is licensed as a
Class A retail dealer in nonintoxicating beer may also be licensed
as a retailer pursuant to this article if it maintains average
monthly sales (excluding wine and nonintoxicating beer sales) which
exceed the average monthly sales of nonintoxicating beer; or
(9) Serve or sell wine to any person under the age of 21 or in
violation of any other provision of section twenty of this article.
(d) A private wine restaurant may also be licensed as a Class
A retail dealer in nonintoxicating beer pursuant to chapter eleven
of this code.
(e) A licensed private wine restaurant or a licensed private
club may permit a person over 21 years of age to recork or reseal,
using a tamper resistant cork, seal or bag approved by the commissioner, up to two separate bottles of unconsumed wine served
in conjunction with food or a meal to its members and their guests
as required by the provisions of this article.
(f) The commissioner may refuse a license to any applicant
applying for a retailer, wine specialty shop, private wine bed and
breakfast, private wine restaurant, private wine spa or a private
club license if:
(1) The applicant is not a suitable person;
(2) The applicant's premises is not a suitable place for
licensure; or
(3) The applicant's premises is located within three hundred
feet of any school or church, measured from front door to front
door along the street or streets: Provided, That the 300 foot
restriction does not apply to any place now occupied by a licensee,
so long as it continues to be occupied continuously, or to any
college or university that has notified the commissioner, in
writing, that it has no objection to the location of the license
within 300 feet of the college or university premises.
(g) The commissioner shall propose legislative rules for
promulgation in accordance with the provisions of chapter
twenty-nine-a of this code to implement the provisions of this
article.
§60-8-3b. Special event licenses; fees.
(a) The commissioner may issue and collect the fees specified for the following special licenses:
(1) Fair or festival license. -- A special fair or festival
license issued pursuant to this subdivision authorizes the licensee
to sell wine at retail at any festival or fair which is endorsed or
sponsored by the governing body of a municipality or a county
commission. The fee for a fair or festival license is $250 per
event.
(2) Fair and festival wine club license. -- A fair and
festival wine club license may be issued in the name of a wine club
organized by the fair or festival committee of the governing body
of a municipality or county commission endorsing or sponsoring the
fair or festival. The governing body shall designate a person to
organize the wine club, under a name which includes the name of the
fair or festival and the words "wine club". The licensee may not
sell wine as provided in this subsection until the wine club has at
least 50 dues-paying members, 21 years of age or older, 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 subdivision may
sell wine at retail for off-premises consumption and serve
complimentary samples, not to exceed eight ounces per serving, only
to its members on the premises of the fair or festival in an area
cordoned or segregated so as to be closed to the general public. The fee for a fair or festival wine club license is $50 per event.
(3) Heritage fair and festival license. -- The commissioner
may issue a special fair or festival license, free of charge,
authorizing any festival or fair which is endorsed or sponsored by
the governing body of a municipality or a county commission and
which is intended to celebrate the ancestry or heritage of a
particular ethnic group to sell, serve for on-premises consumption
and conduct sampling events of wine from a licensed winery or farm
winery.
(5) One-day fund-raising license. -- The commissioner may
issue a special one-day license, free of charge, to a duly
organized, nonprofit corporation or association allowing the sale
and serving of wine on the premises when raising money for
athletic, charitable, educational or religious purposes. The
licensee shall provide a letter to the commissioner listing the
amount of wine donated by a licensed retailer, a distributor or a
farm winery or purchased by the nonprofit or association for use
during the event. Nothing in this subdivision authorizes a
nonprofit corporation or association to purchase wine except as
expressly provided in this chapter.
(6) Winery fair and festival license. -- A winery fair and
festival license authorizes a licensed winery or farm winery to
exhibit, conduct wine sampling events and sell wine at retail for
off-premises consumption at a festival or fair which is endorsed or sponsored by the governing body of a municipality or a county
commission and is held on the premises of the winery or farm winery
that manufactures the wine. The fee for the winery fair and
festival license is $50 per event.
(b) Except where expressly authorized for a different period
of time, a special event license may be issued for a term of not
more than ten consecutive days.
(c) The commissioner shall designate the information to be
contained in any application for a license pursuant to this
section. The applicant must submit the application to the
commissioner at least 30 days prior to the first day on which wine
is to be sold.
(d) A fair or festival licensee is not required to obtain a
separate license and pay a separate license fee for each separate
location on the specified premises of a fair or festival at which
wine is sampled or sold.
(e) The provisions of subsections (c) and (d), section twenty
of this article prohibiting sales of wine to certain persons and
prohibiting certain persons from serving wine apply to any license
issued pursuant to this section.
(f) The holder of a license issued pursuant to this section is
subject to all provisions of this article and to the rules of the
commissioner relating to licenses generally and these requirements
may not be waived by the commissioner: Provided, That the commissioner may by rule or by order waive or create exceptions to
any requirement of notice or a hearing prior to revocation or
suspension of any license issued pursuant to this section.
(g) 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 section.
§60-8-6. License required for sale shipment of wine.
(a) Except as to for 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 sale or shipment into
this state except to a distributor who is duly licensed under this
article: Provided, That nothing in this subsection prohibits sales
or distribution by a farm winery holding a multicapacity farm
winery license directly to a retailer or consumer which are
expressly authorized by article four or six of this chapter or by
section three or six-a of this article.
(b) 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 must, prior to engaging in such activities, register with be
licensed by the commissioner. If
(c) The commissioner shall prohibit any such person who
violates the provisions of this article, he shall not be permitted
to sell, ship or deliver from selling, shipping or delivering any wine to a distributor,
or to the commissioner or
to a consumer or
and from otherwise
engage engaging in the wine business in this
state for a period of one year from the date a notice
of violation
is mailed to
such person the violator. by the commissioner of the
fact that such person has violated the provisions of this article
During
such the one-year one year prohibition period,
it shall be
unlawful for any
licensed distributor
within this state to buy, or
receive who buys or receives wine from
such person the violator or
to have who has any dealings with
such person the violator with
respect
thereto to the wine business is subject to the penalties
available to the commissioner pursuant to section eighteen of this
article.
(d) Hearings and appeals on such violation 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, any person or winery that is currently
licensed and in good standing in its domicile state as a winery,
farm winery, supplier or retailer of wine and who obtains a direct
shipper's license from the commissioner, as provided in this
chapter, may ship up to a maximum of two cases of wine per month
directly to adult West Virginia residents who are twenty-one years
of age or over, for such adult resident's personal use and
consumption and not for resale Licensed direct shippers must maintain
accurate records of all shipments sent to West Virginia
residents. All shipments of wine into West Virginia by licensed
direct shippers shall be made by a licensed and bonded shipping
carrier. Direct shippers and their carriers shall not ship wine to
areas of West Virginia where wine may not be lawfully sold by
county, local or municipal law. Any holder of a direct shipper's
license must collect all taxes, sales taxes, municipal taxes and
the liter tax due to West Virginia, remit all sales, municipal
taxes and the liter tax to the Tax Commissioner at the close of
each month and file a monthly return reflecting the taxes paid for
all sales and shipments to residents in West Virginia. The
commissioner shall prescribe the forms to be used to file the
monthly returns. The shipping container of any wine sent into or
out of this state under this subsection shall be clearly and
conspicuously labeled to indicate that the package cannot be
delivered to: (1) Any person under the age of twenty-one; (2) to
an intoxicated person; or (3) to a person physically incapacitated
due to the consumption of nonintoxicating beer, wine or alcoholic
liquors or the use of drugs; and (4) the carriers are required to
obtain a written or electronic signature upon delivery of an adult
resident who the carrier verifies is at least twenty-one years of
age or older and if the carrier is not able to obtain a signature
of a verified adult resident at least twenty-one years of age or
older, then the carrier may not complete the delivery of the wine shipment. Failure of any holder of a direct shipper's license or
such licensee's carrier to abide by the provisions of this chapter
and the commissioner's rules may subject the direct shipper to the
penalties available to the commissioner under section eighteen of
this article.
§60-8-6a. Direct shipper's license.
(a) Before sending any shipment of wine to a resident of West
Virginia, a direct shipper must first:
(1) File a license application with the commissioner, with the
appropriate background along with any information required by the
commissioner to facilitate a criminal history record check. using
forms required by the commissioner. Criminal background checks
will not be required of applicants licensed in their state of
domicile The commissioner shall approve forms to be used and may
waive the criminal history record check for an applicant already
licensed and in good standing in this state or who, if incorporated
or licensed in another state, can provide a certificate of
licensure in good standing from their its state of domicile;
(2) Pay to the commissioner either the one hundred fifty
dollar license fee to ship and sell only wine, the two hundred
fifty dollar license fee to ship and sell wine and nonfortified
dessert wine, port, sherry or Madeira wines, or the three hundred
dollar multicapacity winery or farm winery license the license fee
required by section three of this article;
(3) Obtain a business registration number from the Tax
Commissioner;
(4) Register with the Office of the Secretary of State, if a
corporation or a limited liability company;
(5) Provide the commissioner a true copy of its current
alcoholic beverage license issued in the state of domicile, proving
that the direct shipper is licensed in its state of domicile as a
winery, farm winery, supplier or retailer of wine;
Provide the commissioner a true copy of its current alcoholic
beverage license, proving that the applicant is licensed in this
state or in its state of domicile as a winery; farm winery,
supplier or retailer.
(6) Obtain from the commissioner a direct shipper's license;
(7) Submit to Register with the commissioner a list of all
brands and labels of wine to be shipped to West Virginia residents
in accordance with section twenty-eight of this article; and
(8) Meet all other licensing requirements of this chapter and
provide any other information that the commissioner may reasonably
require.
(b) All A licensed direct shipper licensees shall:
(1) Maintain and make available to the commissioner for
inspection upon request accurate records of all shipments sent
directly to West Virginia residents, including records showing that
all wine was delivered to an adult West Virginia resident;
(2) Ship all wine by a licensed and bonded shipping carrier;
(3) Ensure that all containers of wine shipped directly to a
West Virginia resident consumer are clearly and conspicuously
labeled with the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON 21
OR OLDER REQUIRED FOR DELIVERY";
(4) Ensure that the carrier verifies upon delivery that the
West Virginia resident to whom the wine was shipped is at least
twenty-one years of age and provides a written or electronic
signature. If the carrier is not able to obtain a signature of a
verified adult resident at least twenty-one years, it may not
complete the delivery;
(5) File monthly reports with the commissioner and the Tax
Commissioner showing the total amount of wines, by type, sold and
shipped into West Virginia for the preceding month; and
(6) Permit the commissioner or the Tax Commissioner or their
designees to perform an audit of the direct shipper's records upon
request.
(c) A direct shipper may not:
(1) Not Ship more than two cases of wine per month to any
person. A case is defined as any combination of packages
containing not more than nine liters of wine West Virginia resident
consumer;
(2) Not Ship wine to any West Virginia address in an area
identified by the commissioner as a "dry" or local option area where it is unlawful to sell wine;
(3) Not Ship wine to any licensed suppliers, distributors,
retailers, private wine bed and breakfasts, private wine
restaurants, private wine spas or wine specialty shops: Provided,
That nothing in this subdivision prohibits sales by a properly
licensed farm winery when expressly authorized by article four or
article six of this chapter or by section three of this article;
(4) Not Ship wine from overseas or internationally unless it
is first shipped to a licensed supplier or distributor.
(5) Ensure that all containers of wine shipped directly to a
resident in this state are clearly and conspicuously labeled with
the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON 21 OR OLDER
REQUIRED FOR DELIVERY";
(6) File monthly returns to the commissioner and the Tax
Commissioner showing the total of wines, by type, sold and shipped
into West Virginia for the preceding month;
(7) Pay to the Tax Commissioner all sales taxes, municipal
taxes and the liter tax due on sales and shipments to residents of
West Virginia in the preceding month, the amount of such taxes to
be calculated as the sales were made in West Virginia at the
location where delivery is made;
(8) Permit the Tax Commissioner or commissioner or their
designees to perform an audit of the direct shipper's records upon
request;
(9) Be deemed (d) For purposes of this article, a licensed
direct shipper is considered to have consented to the jurisdiction
of the commissioner, or of any other state agency, and of the
circuit court of Kanawha County, circuit court located in
Charleston, West Virginia concerning enforcement of this article
and any other related laws or rules. and
(10) Provide proof or records to the commissioner, upon
request, that all direct shipments of wine were purchased and
delivered to an adult resident of West Virginia over the age of
twenty-one years of age.
(c) The direct shipper may annually renew its license with the
commissioner by application, paying the direct shipper license fee
and providing the commissioner with a true copy of a current
alcoholic beverage license from the direct shipper's domicile
state.
(d) The commissioner may promulgate rules to effectuate the
purposes of this law.
(e) Failure of a licensed direct shipper or its carrier to
abide by the provisions of this section or the commissioner's rules
subjects the direct shipper to the penalties available to the
commissioner under section eighteen of this article. The
commissioner may enforce the requirements of this section by
administrative proceedings to suspend or revoke a direct shipper's
license, and the commissioner may accept payment of a penalty or an offer in compromise in lieu of
license suspension
or revocation.
at the commissioner's discretion
(f) Shipments of wine direct to consumers in West Virginia
from persons who do not possess a current direct shipper's license
or other permit or license from the commissioner are prohibited.
Any person who knowingly makes, participates in, transports,
imports or receives such an unlicensed and unauthorized direct
shipment is guilty of a felony and shall, upon conviction thereof,
be fined in an amount not to exceed ten thousand dollars per
violation or shall be imprisoned in jail for a period not to exceed
seventy-two hours. Without limitation on any punishment or remedy,
criminal or civil, any person who knowingly makes, participates in,
transports, imports or receives such a direct shipment constitutes
an act that is an unfair trade practice.
Any person who knowingly makes, participates in, transports,
imports or receives an unlicensed and unauthorized direct shipment
is guilty of a felony and shall, upon conviction thereof, be fined
in an amount not to exceed $10,000 per violation or imprisoned in
jail for a period not to exceed 72 hours. Regardless of any other
punishment or remedy, any person who violates this subsection is
guilty of an unfair trade practice.
(g) The commissioner shall propose legislative rules for
promulgation pursuant to article three, chapter twenty-nine-a of
this code to implement the provisions of this section.
§60-8-19. To whom licensed manufacturer may sell.
A licensed manufacturer who is also licensed as a supplier of
wine, as defined in this article, may sell such its wines in this
state only to the commissioner and or to distributors a licensed
distributor: as defined in this article. Such manufacturers may
sell such wine outside of this state for use or resale outside this
state. The provisions of this section shall not apply to farm
wineries as defined by section five-a, article one of this chapter
Provided, That nothing in this section prohibits other sales by a
multicapacity winery licensee or a multicapacity farm winery
licensee as authorized by article four or six of this chapter or by
section three or six-a of this article.
§60-8-20. Unlawful acts generally.
It shall be is unlawful:
(a) For a supplier or distributor to sell or deliver wine
purchased or acquired from any source other than a person
registered licensed under the provisions of section six of this
article: Provided, That nothing in this section prohibits other
sales by a multicapacity winery licensee or a multicapacity farm
winery licensee as authorized by article four or six of this
chapter or by section three or six-a of this article or for a
retailer to sell or deliver wine purchased or acquired from any
source other than a licensed distributor or a farm winery; as
defined in section five-a, article one of this chapter;
(b) Unless otherwise specifically provided by the provisions
of this article, for a licensee under this article to acquire,
transport, possess for sale or sell wine other than in the original
package;
(c) For a licensee or his or her servants, agents or employees
to sell, furnish or give wine to any person:
(1) Who is younger less than twenty-one years of age; or to a
mental incompetent or person or
(2) Who is physically or mentally incapacitated due to the
consumption of alcoholic liquor or the use of drugs or other
substances: Provided, That the provisions of section twenty-five-a,
article three-a of this chapter shall apply to sales of wine;
(d) For a licensee to permit a person who is less than 18
years of age to sell, furnish or give wine to any person;
(e) For a supplier or a distributor to sell or deliver any
brand of wine purchased or acquired from any source other than the
primary source of supply of the wine which granted the distributor
the right to sell the brand at wholesale. For the purposes of this
article, "primary source of supply" means the vintner of the wine,
the importer of a foreign wine who imports the wine into the United
States, the owner of a wine at the time it becomes a marketable
product, the bottler of a wine or an agent specifically authorized
by any of the above-enumerated persons enumerated in this
subsection to make a sale of the wine to a West Virginia distributor:
Provided, That no retailer
shall may sell or deliver
wine purchased or acquired from any source other than a
properly
licensed distributor or farm winery:
licensed in this state
Provided, however, That nothing
herein is considered to prohibit in
this subsection prohibits sales of convenience between
licensed
distributors
licensed in this state
wherein one distributor sells,
transfers or delivers to another distributor involving the sale,
transfer or delivery of a particular brand
or brands for sale at
wholesale
of which
brand or brands the
other recipient distributor
has been authorized
to distribute in this state by a licensed
supplier.
to distribute The commissioner shall promulgate rules
necessary to carry out the provision of this subsection;
(f) For a person to violate any reasonable rule promulgated by
the commissioner under this article;
(g) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be considered to prohibit prohibits
any licensee from employing any person who is at least 18 years of
age to serve in any licensee's lawful employment, including the
sale or delivery of wine under the provisions of this article.
With the prior approval of the commissioner, a licensee whose
principal business is the sale of food or consumer goods or the
providing of recreational activities, including, but not limited
to, nationally franchised fast food outlets, family-oriented
restaurants, bowling alleys, drug stores, discount stores, grocery stores and convenience stores, may employ persons who are less than
18 years of age but at least 16 years of age:
Provided, That the
person's duties may not include the sale or delivery of
nonintoxicating beer or alcoholic liquors:
Provided, however, That
the authorization to employ persons under the age of 18 years shall
be clearly indicated on the licensee's license.
Part III. Wine Distribution.
§60-8-28. Wine brand registration;
and review of wine labels.
(a) Every No supplier
offering may sell or offer wine for sale
under this article
shall register until it has registered with the
commissioner each
brand or label of wine
brand offered it intends
to offer for sale in the state.
and shall pay a The fee
of for
registering a wine brand is $100 for
the registration of such wine
each brand.
The registration is valid for three years.
such fee
shall be returned to the supplier if the wine is not registered for
sale
(b)(1) After June 30, 2009, a supplier shall register each
brand annually and pay an annual registration fee of $25 per brand
or $10 dollars per label of a brand. Any supplier who has already
registered a brand for three years under the provisions of this
section is not required to renew its brand registration until the
three-year registration has expired.
(2) After June 30, 2009, a licensed winery holding a
multicapacity license or farm winery holding a multicapacity farm winery license shall register its brand every three years for a fee
of $25 or $10 for each additional new label of its brand.
(c) No wine brand may Along with the application for
registration, to be submitted on a form prescribed by the
commissioner, the supplier shall provide the commissioner with
copies of each label to be sold under this article.
unless all of
such wine brand's labels intended for sale in the state have been
registered and reviewed by the commissioner. Every supplier
offering various wine labels of a registered and reviewed wine
brand for sale in the state shall submit all of the wine brand's
labels intended for sale in the state for registration prior to the
sale of such wine labels in the state for no additional fees.
After the expiration of three years, the supplier may renew the
registered wine brand by paying a one hundred dollar renewal fee
for three more years and every three years thereafter. Prior to
registration Before approving registration of any wine
labels
brand or label, the commissioner shall review
the wine labels.
This review shall include, but not be limited to, a review of each
label to determine, among other things, the alcohol content
of the
wine, corporate or product information
and whether the label's
marketing and advertising
so that the wine label is
not intended to
be marketed to target persons
less than under 21 years of age.
If
the commissioner does not approve registration of a brand, he or
she shall return the registration fee to the supplier. Any licensee who sells a wine brand or label that is not registered by
the commissioner is subject to the penalties provided in section
eighteen of this article.
(d) After the registration period expires, the supplier may
renew the wine brand or label registration by paying a renewal fee
equivalent to the initial registration fee. The supplier is not
required to provide copies of labels that have already been
reviewed and approved by the commissioner in order to renew the
registration. However, the supplier must provide with the renewal
application any additional labels that it intends to offer for sale
in this state and advise the commissioner of any wine brands or
labels that it no longer intends to sell in this state. The
commissioner shall remove all nonrenewed wine
brands or labels
from
the register annually. and Any licensee who sells
a wine
with
nonrenewed wine labels shall be brand or label the registration of
which has not been renewed is subject to the penalties
under
provided in section eighteen of this article.
After the expiration
of three years, the supplier may renew the registered wine brand by
paying a one hundred dollar renewal fee for three more years and
every three years thereafter. Prior to registration of any wine
labels, the commissioner shall review the wine labels. This review
shall include, but not be limited to, a review of the alcohol
content, corporate or product information, marketing and
advertising so that the wine label is not intended to be marketed to persons less than twenty-one years of age. The commissioner
shall remove all nonrenewed wine labels and any licensee who sells
wine with nonrenewed wine labels shall be subject to the penalties
under section eighteen of this article. Failure to register,
obtain certification and pay the annual fee for a wine brand and
failure to register the wine brand's labels will subject the
supplier to penalties under said section.
(e) The commissioner shall propose legislative rules for
promulgation, in accordance with the provisions of article three,
chapter twenty-nine-a of this code, governing the commissioner's
review and registration of wine brands and labels, grounds for
refusing to register or renew a wine brand or label, applications
for registration and renewal and any other matters necessary to
implement this section.
Part IV. Wine Retailers.
§60-8-32. Where wine may be sold at retail.
Except as to sales permitted to be made by wineries or farm
wineries that obtain a retailer's license, private wine bed and
breakfasts, private wine restaurants, and private wine spas, Wine
sold pursuant to this article may be sold at retail
pursuant to
this article only by the commissioner,
and in and by licensed
retailers,
by licensed direct shippers, limited wine retailers and
by licensed wine specialty shops as defined by section two of this
article
: Provided, That nothing in this section prohibits retail sales expressly authorized in this chapter by a properly licensed
winery, farm winery, private wine restaurant, private club, fair or
festival or other person or entity.
§60-8-34. When retail sales prohibited.
It shall be unlawful for a retailer, winery, farm winery, wine
specialty shop retailer,
limited wine retailer, private wine bed
and breakfast, private wine restaurant or private wine spa
licensee, his or her servants, agents or employees to sell or
deliver wine between the hours of two o'clock a.m. and one o'clock
p.m. on Sundays, or between the hours of two o'clock a.m. and seven
o'clock a.m. on weekdays and Saturdays.
NOTE: The purpose of this bill all relates to sales of wine;
adding and removing certain definitions; providing for winery and
farm winery license to manufacture and sell; authorizing wine
specialty shops to conduct wine sampling events and wine-tasting
events without obtaining a separate license; deleting provisions
relating to wine tasting and wine sampling licenses; limiting
direct shipping licenses to wineries or farm wineries producing
fifty thousand gallons of wine or less per year; requiring the
Alcohol Beverage Control Commissioner to propose rules for
promulgation setting standards for wine brand and label review and
registration; creating a limited wine retailer license; allowing
wine manufacturers, suppliers and distributors to agree in writing
to a period of less than ninety days for termination of a
distribution agreement; and prohibiting limited wine retailers and
wineries from selling during certain times.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.