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Introduced Version Senate Bill 451 History

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sb451 intr
Senate Bill No. 451

(By Senator Sharpe)

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[Introduced March 3, 2005; referred to the Committee

on Finance.]

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A BILL to amend and reenact §60-8-3, §60-8-6 and §60-8-18 of the Code of West Virginia, 1931, as amended, all relating to the sale of wine; imposing an annual 25-dollar fee for licenses allowing wine to be shipped to adult residents from wineries and retailers who are licensed in their state of domicile; restrictions on shipment; collection and remittance of taxes; requiring adult signature; and allowing the Commissioner to revoke or suspend the license of a licensee, place licensee on probation and impose a monetary penalty on licensee for violation of article or any rule promulgated or order issued by the Commissioner.

Be it enacted by the Legislature of West Virginia:
That §60-8-3, §60-8-6 and §60-8-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 8. SALE OF WINES.
§60-8-3. Licenses; fees; general restrictions.
(a) Except as to farm wineries as defined by section five-a, article one of this chapter, no person may engage in business in the capacity of a distributor, retailer or private wine restaurant without first obtaining a license from the Commissioner, nor shall a person continue to engage in any such that activity after his or her license has expired, been suspended or revoked. No person may be licensed simultaneously as a distributor and a retailer, as a distributor and a private wine restaurant, or as a retailer and a private wine restaurant.
(b) The Commissioner shall collect an annual fee for licenses issued under this article, as follows:
(1) Twenty-five hundred dollars per year for a distributor's license and each. Each separate warehouse or other facility from which a distributor sells, transfers or delivers wine shall be separately licensed and there shall be collected with respect to each such location the annual license fee of twenty-five hundred dollars as herein provided in this subdivision;
(2) One hundred fifty dollars per year for a retailer's license;
(3) Fifty dollars per year for a wine-tasting license;
(4) Fifty dollars for each sales representative of or employed by a licensed distributor;
(5) Two hundred fifty dollars per year for a private wine restaurant license, and each. Each separate restaurant from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each such location the annual license fee of two hundred fifty dollars as herein provided in this subdivision;
(6) Twenty-five dollars per year for a West Virginia wine retailer's license, and each. Each separate retail outlet from which a West Virginia wine retailer sells West Virginia wine shall be separately licensed and there shall be collected with respect to each such location the annual license fee of twenty-five dollars as herein provided in this subdivision. The holder of such a license may sell no wines except those produced by West Virginia farm wineries as defined by section five-a, article one of this chapter. Except for the amount of the license fee and the restriction to sales of West Virginia wines, a West Virginia wine retailer is subject to all other provisions of this article which are applicable to a retailer as defined in section two of this article; and
(7) Twenty-five dollars per year for a wine shipper's license.
(c) The license period shall begin begins on the first day of July of each year and end ends on the thirtieth day of June of the following year and if granted for a less period, the same license period shall be computed semiannually in proportion to the remainder of the fiscal year.
(d) No retailer may be licensed as a private club as provided by article seven of this chapter.
(e) No retailer may be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven of this code: Provided, That a delicatessen, caterer or party supply store which is a grocery store as defined in section two of this article and which is licensed as a Class A retail dealer in nonintoxicating beer may be a retailer under this article: Provided, however, That any delicatessen, caterer or party supply store licensed in both such capacities must maintain average monthly sales exclusive of sales of wine and nonintoxicating beer which exceed the average monthly sales of nonintoxicating beer.
(f) A retailer under this article may also hold a wine-tasting license authorizing such retailer to serve complimentary samples of wine in moderate quantities for tasting. Such The retailer shall organize a winetaster's club, which has at least fifty duly elected or approved dues-paying members in good standing. Such The club shall meet on the retailer's premises not more than one time per week and shall either meet at a time when the premises are closed to the general public or shall meet in a separate segregated facility on the premises to which the general public is not admitted. Attendance at tastings shall be limited to duly elected or approved dues-paying members and their guests.
(g) A retailer who has more than one place of retail business shall obtain a license for each separate retail establishment. A retailer's license may be issued only to the proprietor or owner of a bona fide grocery store or wine specialty shop.
(h) The Commissioner may issue a special license for the retail sale of wine at any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission. Such The special license shall be issued for a term of no longer than ten consecutive days and the fee therefor shall be for the license is two hundred fifty dollars regardless of the term of the license unless the applicant is the manufacturer of said the wine on a farm winery as defined in section five-a, article one of this chapter, in which event the fee shall be is twenty-five dollars. The application for such the license shall contain such information as required by the Commissioner may reasonably require and shall be submitted to the Commissioner at least thirty days prior to the first day when wine is to be sold at such the festival or fair. A farm winery licensed under this subsection may exhibit, conduct tastings, not to exceed a reasonable serving, and may sell wine only for consumption off the premises of such the festival or fair. A special license issued other than to a farm winery may be issued to a "wine club" as defined hereinbelow in this subsection. The festival or fair committee or the governing body shall designate a person to organize a club under a name which includes the name of the festival or fair and the words "wine club". The license shall be issued in the name of the wine club. A licensee may not commence the sale of wine as provided for in this subsection until the wine club has at least fifty dues-paying members who have been enrolled and to whom membership cards have been issued. Thereafter, new members may be enrolled and issued membership cards at any time during the period for which the license is issued. A wine club licensed under the provisions of this subsection may sell wine only to its members and in portions not to exceed eight ounces per serving. Such The sales shall take place on premises or in an area cordoned or segregated so as to be closed to the general public, and the general public shall may not be admitted to such the premises or area. A wine club licensee under the provisions of this subsection shall be authorized to may serve complimentary samples of wine in moderate quantities for tasting.
A license issued under the provisions of this subsection and the licensee holding such the license shall be is subject to all other provisions of this article and the rules, regulations and orders of the Commissioner relating to such the special license: Provided, That the Commissioner may by rule, regulation, or order provide for certain waivers or exceptions with respect to such the provisions, rules, regulations, or orders as required by the circumstances of each such festival or fair may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding the provisions of section twelve of this article: Provided, however, That under no circumstances shall the provisions of subsection (c) or (d), section twenty of this article be waived nor shall any exception be granted with respect thereto.
A license issued under the provisions of this subsection and the licensee holding such the license shall is not be subject to the provisions of subsection (g) of this section.
(i) A license to sell wine granted to a private wine restaurant under the provisions of this article entitles the operator to sell and serve wine, for consumption on the premises of the licensee, when such the sale accompanies the serving of food or a meal to its members and their guests in accordance with the provisions of this article. Such The licensees are authorized to may keep and maintain on their premises a supply of wine in such appropriate quantities as may be appropriate for the conduct of operations thereof of the premises. Any sale of wine so made shall be is subject to all restrictions set forth in section twenty of this article. A private wine restaurant may also be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven of this code.
(j) With respect to subsections (h) and (i) of this section, the Commissioner shall promulgate propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code with regard to the form of the applications, the suitability of both the applicant and location of the licensed premises and such any other legislative rules deemed considered necessary to carry the provisions of such the subsections into effect.
(k) The Commissioner shall promulgate propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to allow restaurants to serve West Virginia wine with meals, but not to sell the wine by the bottle. Each licensed restaurant so licensed shall be charged a fee less than that charged for a wine license to a retail outlet, such. The fees to shall be set forth in the aforementioned rules promulgated pursuant to this subsection.
(l) The Commissioner shall establish guidelines to permit West Virginia wines to be sold in state stores.
(m) Farm wineries as defined in section one-a of this article may advertise off premises as provided in section seven, article twenty-two, chapter seventeen of this code and in any other media, including, but not limited to, newspaper, radio, television, magazines and direct mail solicitation.
§60-8-6. License or registration required for sale or shipment of wine; shipment of limited quantities of wine to adult residents permitted.

(a) Except as to the Commissioner and except as provided in subsection (b) of this section, no person may offer for sale or sell wine in this state, or offer wine for shipment into this state, except to a distributor who is duly licensed under this article. Every person, whether resident or nonresident in this state, who is engaged in or desires to engage in the sale or shipment of wine to a distributor for resale under this article shall, prior to engaging in such those activities, register with the Commissioner. If any such person violates the provisions of this article, he or she shall may not be permitted to sell, ship or deliver any wine to a distributor or to the Commissioner or otherwise engage in the wine business in this state for a period of one year from the date a notice is mailed to such that person by the Commissioner of the fact that such the person has violated the provisions of this article. During such the one-year period, it shall be is unlawful for any distributor within this state to buy or receive wine from such that person or to have any dealings with such that person with respect thereto to the sale of wine. Hearings and appeals on such the notices may be had in the same manner as in the case of revocations of licenses under this article.
(b) Notwithstanding the provisions of this chapter or any other law to the contrary, an adult resident or a duly licensed retailer or distributor of alcoholic beverages in a state or nation which affords adults and duly licensed retailers and distributors of this state an equal reciprocal shipping privilege any person currently licensed in its state of domicile as a winery or retailer of wine may apply to the Commissioner for a wine shipper's license. A licensed wine shipper may ship wine, for personal use and not for resale, not more than two cases of wine per month, not to exceed eighteen liters of wine in any month to any adult resident in this state. Delivery of a shipment pursuant to this section shall not be deemed to constitute constitutes a sale in this state. All shipments of wine into this state from licensed wine shippers shall be made by a licensed carrier. Direct shippers or carriers shall not ship into areas of the state where wine may not be lawfully sold. The licensed wine shipper shall collect the taxes due this state and remit all excise, sales and municipal taxes monthly to the Department of Revenue on forms prescribed by the Commissioner. The shipping container of any wine sent into or out of this state under this subsection shall be clearly labeled to indicate that the package cannot be delivered to any person under the age of twenty- one or to an intoxicated person and the carriers are required to obtain an adult signature upon delivery. No adult resident or duly licensed retailer or distributor may advertise the availability of wines by shipment to residents of this state.
§60-8-18. Revocation or suspension of license; monetary penalty; procedure upon refusal, revocation or suspension.

(a) The Commissioner may on his or her own motion, or shall on the sworn complaint of any person, conduct an investigation to determine if any provisions of this article or any rule promulgated or order issued by the Commissioner have has been violated by any licensee. The commissioner may suspend or revoke any licensee's license if he
(1) If the Commissioner
finds that such the licensee has violated any provision of this article or any rule promulgated or order issued by the Commissioner, or if he the Commissioner finds the existence of any ground on which a license could have been refused, if such the licensee were then applying for a license, and if the Commissioner may:
(A) Revoke the licensee's license;
(B) Suspend the licensee's license for the period determined by the Commissioner not to exceed twelve months; or
(C) Place the licensee on probation for a period not to exceed twelve months; and
(D) Impose a monetary penalty not to exceed one thousand dollars for each violation where revocation is not imposed.

(2) If the Commissioner finds that a licensee has willfully violated any provision of this article he or any rule promulgated or order issued by the Commissioner, the Commissioner shall revoke such the licensee's license.
(b) Whenever any If a distributor fails or refuses to keep in effect the bond required by section twenty twenty-nine of this article, in effect, such the Commissioner shall automatically suspend the distributor's license shall be automatically suspended until such time as the bond required by said section is furnished to the Commissioner, at which time such the Commissioner shall vacate the suspension shall be vacated.
(c) Whenever the Commissioner refuses to issue a license, or suspends or revokes a license, places a licensee on probation or imposes a monetary penalty, he or she shall enter an order to that effect and cause a copy of the order to be served in person or by certified mail, return receipt requested, on the licensee or applicant.
(d) Any applicant or licensee, as the case may be, adversely affected by such the order shall have has a right to a hearing thereon on the order before the Commissioner, providing that provided the demand in writing for such a hearing is served upon the Commissioner within ten days following the receipt by such the applicant or licensee of the copy of said Commissioner's order. The Timely service of such a demand for a hearing upon the Commissioner shall operate operates to suspend the execution of the order with respect to which a hearing is being demanded, except an order suspending a license under the provisions of subsection (b) of this section. The person demanding a hearing shall give security for the cost of such the hearing in such the form and amount as the Commissioner may reasonably require. If the person demanding such the hearing does not substantially prevail in such the hearing or upon judicial review thereof of the order as hereinafter provided in subsections (g) and (h) of this section, then the costs of such the hearing shall be assessed against him or her by the Commissioner and may be collected by an action at law or other proper remedy.
(e) The Upon receipt of a timely served written demand for a hearing, the Commissioner shall immediately set a date for such the hearing and notify the person demanding such the hearing thereof, which of the date, time and place of the hearing which shall be held within thirty days after receipt of said the demand. At such the hearing, the Commissioner shall hear evidence and thereafter enter an order supporting supported by findings of facts, affirming, modifying or vacating the order, which. The order shall be is final unless vacated or modified upon judicial review thereof of the order.
(f) Such The hearing and the administrative procedure prior to, during and following the hearing shall be governed by and in accordance with the provisions of article five, chapter twenty- nine-a of this code in like manner as if the provisions of article five were set forth in extenso in this section.
(g) Any person applicant or licensee adversely affected by an order entered following such a hearing shall have has the right of judicial review thereof of the order in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code with like effect as if the provisions of said section four were set forth in extenso herein.
(h) The judgment of a circuit court reviewing the order of the Commissioner shall be is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(i) Legal counsel and services for the Commissioner in all such proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants and in any proceedings in any circuit court by the prosecuting attorney of that county as well, all without additional compensation.


NOTE: The purpose of this bill is to allow the Alcohol Beverage Commissioner to also place a wine license on probation or assess a monetary penalty, or both, when a wine license violates a provision of the wine law, West Virginia Code §60-8-1, et. seq., a rule promulgated by the Commissioner, or an order issued by the Commissioner. These sanctions would be appealable just like an order revoking or suspending a wine license. Certain language in the section would be modernized.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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