Senate Bill No. 472
(By Senators Sharpe and Ross)
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[Introduced February 7, 2003; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections two, eighteen and twenty-
eight, article eight, chapter sixty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to redefining the term "wine" to exclude certain
products or beverages; redefining the terms "distributor" and
"wine specialty shop" to include sales of dessert wines which
are not fortified, marsala, sake and vermouth wines; amending
the revocation or suspension of license provision to impose a
civil monetary penalty on licensees for violation of any
provision of this article or any rule or order promulgated by
the commissioner; imposing a wine label registration fee of
five dollars for every registered wine supplier and setting the wine label registration fee for farm wineries at three
dollars; and establishing that wine label registrations and
fees are to be filed with the commissioner.
Be it enacted by the Legislature of West Virginia:
That sections two, eighteen and twenty-eight, article eight,
chapter sixty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
60-8-2. Definitions.
(a) Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Commissioner" or "commission" means the West Virginia
alcohol beverage control commissioner.
(2) "Distributor" means any person whose principal place of
business is within the state of West Virginia, and who is engaged
in selling or distributing wine to retailers or private wine
restaurants and selling or distributing port, sherry, and Madeira,
wines Marsala, sake, vermouth and dessert wines which are not
fortified to wine specialty shops under authority of this article
and actually maintains a warehouse in this state for the
distribution of wine.
(3) "Fortified wine" shall mean any wine to which brandy or
other alcohol has been added and shall include dessert wines which
are not fortified.
(4) "Grocery store" means any retail establishment, commonly
known as a grocery store, supermarket, delicatessen, caterer or
party supply store, where food, food products and supplies for the
table are sold for consumption off the premises with average
monthly sales (exclusive of sales of wine) of not less than five
hundred dollars and an average monthly inventory (exclusive of
inventory of wine) of not less than three thousand dollars. The
term "grocery store" shall also include and mean a separate and
segregated portion of any other retail store which is dedicated
solely 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
sales of wine) of not less than three thousand dollars and an
average monthly inventory (exclusive of inventory of wine) of not
less than three thousand dollars.
(5) "Licensee" means the holder of a license granted under the
provisions of this article.
(6) "Private wine restaurant" means a restaurant which: (1)
(A) 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) (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 to its members and their guests when such sale accompanies 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.
(7) "Retailer" means any person licensed to sell wine at
retail to the public at his established place of business for
off-premises consumption and who is licensed to do so under
authority of this article.
(8) "Supplier" means any manufacturer, producer, processor,
distributor or supplier of wine who sells or offers to sell or
solicits or negotiates the sale of wine to any licensed West
Virginia distributor.
(9) "Tax" includes within its meaning interest, additions to
tax and penalties.
(10) "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.
(11) "Varietal wine" means any wine labeled according to the
grape variety from which such wine is made.
(12) "Vintage wine" or "vintage-dated wine" means wines from
which the grapes used to produce such wine are harvested during a
particular year or wines produced from the grapes of a particular
harvest in a particular region of production.
(13) "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 table wine, and
shall exclude fortified wine, Marsala, sake and vermouth, and shall
also exclude any product defined as or embraced within the
definition of nonintoxicating beer under the provisions of article
sixteen, chapter eleven of this code.
(14) "Wine specialty shop" means a retailer who shall deal
principally in the sale of table wine, dessert wines which are not
fortified, certain fortified wines, wine accessories and food or
foodstuffs normally associated with wine and (1) (A) who shall
maintain a representative number of such wines for sale in his
inventory which are designated by label as varietal wine, vintage,
generic and/or according to region of production and the inventory
shall contain not less than fifteen percent vintage or
vintage-dated wine by actual bottle count and (2) (B) who, any
other provisions of this code to the contrary notwithstanding, may
maintain an inventory of port, sherry, and Madeira, Marsala, sake,
and vermouth wines having an alcoholic content of not more than
twenty-two percent alcohol by volume and which have been matured in
wooden barrels or casks.
60-8-18. Revocation or suspension of license; monetary penalty;
procedure upon refusal, revocation or suspension.
(a) The commissioner may on his 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 or order
promulgated by the commissioner have been violated by any licensee.
The commissioner may suspend or revoke any licensee's license if he
finds that such licensee has violated any provision of this article
or any rule or order promulgated by the commissioner, or if he
finds the existence of any ground on which a license could have
been refused, if such licensee were then applying for a license,
and if the commissioner finds that a licensee has willfully
violated any provision of this article or any rule or order
promulgated by the commissioner, he shall revoke such licensee's
license. the commissioner may:
(1)Revoke the licensee's license;
(2)Suspend the licensee's license;
(3)Place the licensee on probationary status for a period
not to exceed twelve months; and
(4)Impose a monetary penalty not to exceed one thousand
dollars for each violation where revocation is not imposed.
(b) Whenever any distributor fails or refuses to keep the bond
required by section twenty [§60-8-20] of this article in effect,
such distributor's license shall be automatically suspended until
such time as bond required by section twenty is furnished to the
commissioner, at which time such suspension shall be vacated.
(c) Whenever the commissioner refuses to issue a license, or suspends or revokes a license, or imposes a monetary penalty, he
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 order shall have a right to a hearing thereon
before the commissioner, providing that demand in writing for such
hearing is served upon the commissioner within ten days following
the receipt by such applicant or licensee of the copy of said
order. The service of such demand for a hearing upon the
commissioner shall operate to suspend the execution of the order
with respect to which a hearing is being demanded, except an order
suspending a license under the provision of subsection (b) of this
section. The person demanding a hearing shall give security for
the cost of such hearing in such form and amount as the
commissioner may reasonably require. If the person demanding such
hearing does not substantially prevail in such hearing or upon
judicial review thereof as hereinafter provided, then the costs of
such hearing shall be assessed against him by the commissioner and
may be collected by an action at law or other proper remedy.
(e) The commissioner shall immediately set a date for such
hearing thereof, which hearing shall be held within thirty days
after receipt of said demand. At such hearing the commissioner
shall hear evidence and thereafter enter an order supporting by findings of facts, affirming, modifying or vacating the order,
which order shall be final unless vacated or modified upon judicial
review thereof.
(f) Such 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 adversely affected by an order entered
following such hearing shall have the right of judicial review
thereof in accordance with the provisions of section four, article
five, chapter twenty-nine-a of this Code with like effect as if the
provision 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 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 assistants
and in any proceedings in any circuit court by the prosecuting
attorney of that county as well, all without additional
compensation.
(j) Any monetary penalty assessed and collected by the
commissioner shall be deposited in the state treasury and credited
to the "ABCA Enforcement Fund."
60-8-28. Registration of labels.
Every distributor supplier and farm winery offering wine for
sale under this article shall register with the tax commissioner
each label offered for sale in the state. Every supplier shall pay
a fee of five dollars and every farm winery shall pay a fee of
three dollars for the registration of such label. No wine may be
sold under this article unless its label has been registered.
NOTE: The purpose of this bill is:
(1) To redefine the term "distributor" to allow sales of
dessert wines which are not fortified, Marsala, sake, and vermouth
wines to wine specialty shop licensees.
(2) To redefine the term "wine" to exclude sake, Marsala and
vermouth from the definition of wine,
(3) To redefine the term "wine specialty shop" to allow sales
of dessert wines which are not fortified, Marsala, sake, and
vermouth wines by wine specialty shop licensees and to eliminate
the stipulation of being matured in wooden barrels or casks,
(4) To impose a monetary penalty on licensees for violation of
article eight or any rule or order promulgated by the commissioner,
(5) To set a wine label registration fee of $5 for every
supplier, set a wine label registration fee for farm wineries at
$3, and have label registrations submitted to the commissioner, and
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.