Senate Bill No. 514
(By Senator Mitchell)
____________
[Introduced March 19, 2001; referred to the Committee on the Judiciary.]
____________

A BILL to amend and reenact section twenty-two, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section ten, article seven, chapter sixty of said code; and to amend and reenact section twenty-three, article eight of said chapter, all relating to requiring all licensees who sell beer, wine or alcoholic liquors to be consumed on the premises to carry liability insurance in the minimum amount of twenty- five thousand dollars or be subject to revocation or suspension of their licenses.

Be it enacted by the Legislature of West Virginia:
That section twenty-two, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section ten, article seven, chapter sixty of said code be amended and reenacted; and that section twenty-three, article eight of said chapter be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.

§11-16-22. Powers of the commissioner; rules, or orders.

(a) In addition to all other powers conferred upon the commissioner and in order to effectively carry out the provisions, intent and purposes of this article, the commissioner shall have has the power and authority to adopt, promulgate, repeal, rescind and amend, in accordance with the provisions of chapter twenty-nine-a of this code, rules, standards, requirements and orders, including, but not limited to, the following:
(1) Prescribing records and accounts, pertaining to the manufacture, distribution and sales of nonintoxicating beer, to be kept by the licensee and the form thereof;
(2) Requiring the reporting of such any information by licensees as may be necessary for the effective administration of this article;
(3) Regulating the branding and labeling of packages, bottles or other containers in which nonintoxicating beer may be sold; and, in his or her discretion, requiring the collection of all taxes provided for under section thirteen of this article;
(4) Prohibiting shipment into the state and sale within the state of low grade or under-standard nonintoxicating beer;
(5) Referring to licenses and the issuance and revocation of the same;
(6) Establishing the suitability of businesses and locations for licensure, and requiring licensees to keep their places of business where nonintoxicating beer is sold at retail, and the equipment used in connection therewith, clean and in a sanitary condition;
(7) The establishment of advertising guidelines, prohibitions and prior permissions generally, including, but not limited to: (i) The use of posters, placards, mirrors, windows, doors or indoor and outdoor signs generally, and print and electronic advertising of retail licensees specifically; (ii) the sponsoring of athletic events or contests by licensees and restrictions relating thereto; (iii) the use of equipment, fixtures or supplies in advertising; (iv) false advertising with respect to any product of or sold by any licensee, including, but not limited to, draft beer and coolers; and (v) the extent, if any, to which free goods and other inducements may be utilized by any licensee;
(8) Wholesale prices or price changes, including, but not limited to, the regulation and extent, if any, of any temporary price markoff or markdown, temporary wholesale price change downward or price discount, sometimes referred to as "post downs" or as "posting down" or any other price change, the express purpose of which is to put into effect a temporary price reduction, as well as the duration of time during which such the temporary price reduction is to remain in effect;
(9) Restrictions upon West Virginia distributors or other licensees with respect to the purchase of any nonintoxicating beer or malt coolers from manufacturers or brewers whether within or without the state who have failed to qualify for manufacture or shipment of any such product in the state; and
(10) Regulating, restricting or prohibiting a distributor from selling, offering for sale, distributing or delivering nonintoxicating beer to any retailer whose principal place of business, residence or licensed premises is located without or beyond the assigned territory of such the distributor of such nonintoxicating beer; and
(11) Effective upon the passage of this amendment to this section, the commissioner shall require a licensee under the provisions of this article who possesses or sells any nonintoxicating beer for consumption on the premises to maintain a minimum of twenty-five thousand dollars liability insurance coverage upon penalty of immediate revocation or suspension of license.
(b) Any rule or order heretofore adopted by the commissioner and currently in effect upon the convening of the regular session of the Legislature held in the year one thousand nine hundred eighty-six shall remain in effect until changed by the commissioner in the manner prescribed by article three, chapter twenty-nine-a of this code, irrespective of whether specific authority for such the currently effective rule existed prior to such that date.

§60-7-10. Duties and powers of commissioner.

The commissioner is hereby authorized:
(a) To enforce the provisions of this article;
(b) To enter the premises of any licensee at reasonable times for the purpose of inspecting the same, and determining the compliance of said the licensee with the provisions of this article and any rules and regulations promulgated by the commissioner pursuant to the provisions of this article;
(c) To promulgate such reasonable legislative rules and regulations as may be necessary for the execution and enforcement of the provisions of this article, which may include, but shall may not be limited to, the hours during which licensees may sell alcoholic liquors, and the use, handling, service and sale of such alcoholic liquors: Provided, That

Such The rules and regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of the code; in like manner as if said article three of said chapter twenty-nine-a were set forth in extenso in this subdivision.
(d) To issue subpoenas and subpoenas duces tecum for the purposes of conducting hearings under the provisions of section thirteen of this article, which subpoenas and subpoenas duces tecum shall be issued in the time, for the fees, and shall be enforced in the manner specified in section one, article five, chapter twenty-nine-a of this code. with like effect as if said section one were set forth in extenso in this subdivision.
The authority granted in subdivisions (a), (b) and (d) of this section may also be exercised by the duly authorized agents of the commissioner.

§60-8-23. Duties and powers of commissioner; rules.

(a) The commissioner is hereby authorized:
(1) To enforce the provisions of this article;
(2) To enter the premises of any licensee at reasonable times for the purpose of inspecting the premises, and determining the compliance of the licensee with the provisions of this article and any rules and regulations promulgated by the commissioner;
(3) In addition to rules and regulations relating to the tax imposed by section four of this article or otherwise authorized by this article, to promulgate reasonable rules and regulations as he deems considered necessary for the execution and enforcement of the provisions of this article, which may include, but shall not be limited to:
(A) The transport, use, handling, service and sale of wine;
(B) Establishing standards of identity, quality and purity to protect the public against wine containing deleterious, harmful or impure substances or elements and against spurious or imitation wines and wines unfit for human consumption; and
(C) Restricting the content of wine advertising so as to prohibit false or misleading claims, or depictions or descriptions of wine being consumed irresponsibly or immoderately, or advertising presentations designed to appeal to persons below the legal drinking age: Provided, That the commissioner shall may not promulgate any rule or regulation which prohibits the advertising of a particular brand or brands of wine and the price thereof: Provided, however, That price shall may not be advertised in a medium of electronic communication subject to the jurisdiction of the federal communications commission; and
(D)

Effective upon the passage of this amendment to this section, the commissioner shall require a licensee under the provisions of this article who possesses or sells any wine for consumption on the premises to maintain a minimum of twenty-five thousand dollars liability insurance coverage upon penalty of immediate revocation or suspension of license.
(4) To issue subpoenas and subpoenas duces tecum for the purpose of conducting hearings under the provisions of section twelve of this article, which subpoenas and subpoenas duces tecum shall be issued in the time, for the fees, and shall be enforced in the manner specified in section one, article five, chapter twenty-nine-a of this code. with like effect as if said section one was set forth in extenso in this subdivision.
(b) The authority granted in subdivisions (a),(b) and (d) of this section may also be exercised by the duly authorized or designated agents of the commissioner.
(c) Except as may be in this article to the contrary, the commissioner shall does not have authority by rule or regulation or otherwise to regulate markups, prices, discounts, allowances, or other terms of sale at which wine may be purchased or sold by wine distributors or licensees authorized to sell wine at retail or to change, nullify or vary the terms of any agreement between a wine manufacturer or supplier and a wine distributor, but nothing herein shall be deemed in this section may be considered to authorize or permit any discriminatory practice prohibited by subsection (a), section thirty-one of this article.
(d) All rules and regulations promulgated by the commissioner pursuant to this article shall be so promulgated in accordance with the provisions of chapter twenty-nine-a of this code. The rules and regulations promulgated pursuant to the prior enactment of this article and not disapproved by the Legislature shall remain in full force and effect to the extent that such those rules and regulations are not abrogated and made null and void by the reenactment of this sections of this article during the regular session of the Legislature for the year one thousand nine hundred eighty-six. Any rule or regulation which is inconsistent or contrary in any way to any provision of this article now or hereafter enacted are null and void.

NOTE: The purpose of this bill is to require all licensees who sell beer, wine or alcoholic liquors to be consumed on the premises to carry liability insurance in the minimum amount of $25,000.00 or be subject to revocation or suspension of their licenses.

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