Senate Bill No. 90
(By Senator Mitchell)
____________
[Introduced January 9, 2002; referred to the Committee
on Banking and Insurance; and then 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.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
§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
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 alcoholic liquors 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. 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.
ARTICLE 8. SALE OF WINES.
§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 is 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 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.