H. B. 4168
(By Delegates Fleischauer, Guthrie,
Long, Tabb, Azinger and Lane)
[Introduced January 24, 2008; referred to the
Committee on the Judiciary then Finance.]
A BILL to repeal §60-1-5a of the Code of West Virginia, 1931, as
amended; to repeal §60-3-25 of said code; to amend and reenact
§60-1-5 of said code; to amend and reenact §60-4-3b, §60-4-22
of said code; to amend said code by adding thereto four new
sections, designated §60-4-2a, §60-4-2b, §60-4-2c, §60-4-22a;
to amend and reenact §60-6-1 of said code; to amend and
reenact §60-8-1, §60-8-2, §60-8-3, §60-8-4, §60-8-6, §60-8-6a,
§60-8-19, §60-8-20, §60-8-24, §60-8-28, §60-8-30 and §60-8-32
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;
establishing application and reporting requirements for farm
wineries seeking a waiver of raw product quotas and import
restrictions; defining "off-farm location" to mean a West
Virginia farm or winery; limiting the duration of waivers;
providing for winery and farm winery license to manufacture and sell; deleting provisions prohibiting wholesaler's
representatives or their spouses from contributing to
political party campaign funds; 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 twenty thousand gallons of wine or less per year;
exempting from payment of the liter tax any winery or farm
winery producing twenty thousand gallons of wine or less per
year; providing that where a supplier or direct shipper does
not have a minimum nexus with this state, the purchaser of
wine from the supplier or direct shipper is responsible for
reporting, collecting, remitting and paying taxes on the wine
sold to the Tax Commissioner; adopting language relating to
disposition of wine tax revenues; decreasing the cost and
duration of wine brand and label registration; requiring the
Alcohol Beverage Control Commissioner to propose rules for
promulgation setting out standards for wine brand and label
review and registration; and allowing wine manufacturers,
suppliers and distributors to agree in writing to a period of
less than ninety days for termination of a distribution
agreement.
Be it enacted by the Legislature of West Virginia:
That §60-1-5a of the Code of West Virginia, 1931, as amended,
be repealed; that §60-3-25 of said code be repealed; that §60-1-5
of said code be amended and reenacted; that §60-4-3b, §60-4-22 of
said code be amended and reenacted; that said code be amended by
adding thereto four new sections, designated §60-4-2a, §60-4-2b,
§60-4-2c and §60-4-22a; that §60-6-1 of said code be amended and
reenacted; that §60-8-1, §60-8-2, §60-8-3, §60-8-4, §60-8-6,
§60-8-6a, §60-8-19, §60-8-20, §60-8-24, §60-8-28, §60-8-30 and
§60-8-32 of said code be amended and reenacted; 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) "Broker" means a person appointed, in writing, to
represent a distiller or manufacturer of alcoholic liquors in this
state.
(7) "Commissioner" or "commission" means the West Virginia
Alcohol Beverage Control Commissioner.
(8) "Complimentary sample" means a serving of not more than
one ounce of alcoholic liquors or beer.
(9) "Distillery" means an establishment where alcoholic liquor
other than wine or beer is manufactured.
(10) "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 twenty-two
percent by volume; or
(iii) Any combination of (i) and (ii);
(B) Grows or produces at least twenty-five percent of the raw
products used to make wine on the premises of the farm winery; and
(C) Imports no more than twenty-five percent of the raw
products used to make the wine from any source outside the state in
which the farm winery is located.
(11) "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.
(12) "Manufacture" means to distill, rectify, ferment, brew,
make, mix, concoct, process, blend, bottle, or fill an original
package with any alcoholic liquor.
(13) "Manufacturer" means any person engaged in the
manufacture of any alcoholic liquor and includes, among others,
distillers, rectifiers, wine makers and brewers.
(14) "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
(16) "Person" means an individual, firm, partnership, limited
partnership, limited liability company, corporation or voluntary association.
(17) "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 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.
(18) "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.
(19) "Selling" includes solicitation or receipt of orders;
possession for sale; and possession with intent to sell.
(20) "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.
(19) "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.
(20) "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.
shall mean means an establishment where wine is
manufactured or in any way prepared. For purposes of this chapter,
except where the contrary is expressly indicated, the term "winery"
includes farm wineries.
"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.
ARTICLE 4. LICENSES.
§60-4-2a. Off-farm location permits; application; duration.
(a) Notwithstanding the provisions of section five, article
one of this chapter, if a farm winery licensee has planted on the
farm winery premises young, nonbearing plants to be used to make
its wine, it may file with the commissioner a signed and sworn
application, along with supporting evidence, for permission to
operate or to use raw products from one off-farm location within
the State of West Virginia.
(1) The application, on a form provided by the commissioner,
shall include the following information:
(A) The type and number of the new plants planted on the farm
winery premises;
(B) The date on which the plants were planted on the premises
of the farm winery;
(C) The date on which the plants may reasonably be expected to
come into full production; and
(D) The amount of produce reasonably expected to result when
the plants come into full production.
(2) The commissioner may not consider the application unless
it is accompanied by written findings of the Commissioner of
Agriculture supporting the assertions in the application. The
applicant has the burden of proving that the matters asserted in
the application are true.
(3) After considering the application and the evidence, the
commissioner, after consultation with the Commissioner of
Agriculture, may permit the farm winery to operate or use products
from one off-farm location to make wine in an amount equal to the
amount reasonably expected to be produced when the nonbearing fruit
plants planted on the farm winery come into full production.
(4) The permit shall state on its face the amount of the
produce or juice the farm winery licensee may obtain from the
off-farm location and the duration of the permit.
(5) Any permit issued under this subsection is valid only
until the date on which the commissioner, in consultation with the
Commissioner of Agriculture, has determined the plants on the farm
winery premises are expected to come into full production.
(f) The commissioner shall propose legislative rules for
promulgation in accordance with the requirements of article three,
chapter twenty-nine-a of this code, setting out information to be
included in applications, grounds for granting permits and any
other matters necessary to implement the provisions of this
section.
§60-4-2b. Waiver of import restrictions; application; duration.
(a) In the event of unusual climatic or other conditions
adversely affecting a farm winery's ability to obtain at least
seventy-five percent of the raw products it uses to make wine from
within the state in which it is located, a farm winery may file
with the commissioner a signed and sworn application, along with
supporting evidence, for a waiver of the prohibition against
importing from another state more than twenty-five percent of the
raw products it uses to make wine.
(b) The application, on a form provided by the commissioner,
shall include the following information:
(1) The nature of the unusual climatic or other conditions
which prevent the licensee from obtaining the necessary raw
products within the state where it is located;
(2) The licensee's efforts to obtain the necessary raw
products within the state; and
(3) The length of time the adverse conditions may reasonable
be expected to continue.
(c) The commissioner may not consider the application unless
it is accompanied by written findings of the Commissioner of
Agriculture supporting the assertions in the application. The
applicant has the burden of proving that the agricultural products
of the type normally used by the licensee are not available from
any other source within the state.
(d) After considering the application and the evidence, the
commissioner may waive the prohibition against importing more than
twenty-five percent of the raw products it uses to make wine and
issue a permit allowing the licensee to import more than
twenty-five percent of the grapes, grape juice, fruits, fruit
juices, honey or other agricultural products necessary to produce
its wine from another state.
(e) The permit shall state the percentage of raw products the
licensee is permitted to import from another state. The
commissioner may not issue a permit under this subsection for more
than ninety days, and no more than two permits may be issued in any
calendar year.
(f) The commissioner shall propose legislative rules for
promulgation in accordance with the requirements of article three,
chapter twenty-nine-a of this code, setting out information to be
included in applications, grounds for granting waivers and any
other matters necessary to implement the provisions of this
section.
§60-4-2c. Annual farm winery report; form; rules.
(a) On or before the first of July of each year, each farm
winery shall report to the commissioner the following information
with regard to the raw products used to produce its wine in the
previous year:
(1) The total amount of produce used in making wine grown on
the farm winery premises;
(2) The total amount of produce or juice obtained from an
off-farm location pursuant to section two-a of this article; and
(3) The total amount of produce or juice used in making wine
obtained from another state.
(b) Each farm winery shall also report to the commissioner the
total number of gallons of wine produced by the licensee in the
preceding year.
(c) The commissioner may require each farm winery to report
additional information.
(d) The commissioner shall develop a form for the report
required by this section and shall propose legislative rules for
promulgation pursuant to article three, chapter twenty-nine-a of
this code governing implementation of this section.
§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 on the premises 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, a winery or farm winery may not allow customers
are prohibited from consuming any to consume, taste or sample 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 pursuant to section three, article eight of this
chapter.
(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 or farm winery
holding a multicapacity winery license or otherwise licensed to
sell wine at retail, by direct shipping or as a supplier 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. --
(1) A winery or farm winery must maintain 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 supplier; retailer for off-premises consumption of its
wine as specified in section two, article six of this chapter;
private wine restaurant; and direct shipper for wine produced by
the winery or farm winery.
(3) Except as provided in subdivision (2) of this subsection,
all wineries must 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. Each farm winery self-distributing its wine pursuant to subdivision (2) of this subsection or section six,
article six of this chapter or holding a multicapacity winery
license shall submit to the Tax Commissioner the liter tax for and
a report of all wine sales each month, as provided in section four,
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.
§60-4-22. Wholesale representative's licenses.
(a) A No person firm or corporation may not be, or act or
serve as an agent, broker representative or salesman salesperson
selling or offering to sell or soliciting or negotiating the sale
of alcoholic liquor to the commission commissioner or to any
licensed West Virginia distributor licensed pursuant to article
eight of this chapter without first obtaining a license so to do in
accordance with the provisions of pursuant to this section.
(b) Only salaried employees, agents, or salespersons of
distilleries and manufacturers producers or processors of alcoholic
liquor or authorized brokers may be licensed hereunder and no
person may be licensed hereunder who sells or offers to sell
alcoholic liquor to the commission or any distributor on a fee or
commission basis as wholesale representatives pursuant to this
section.
(c) A wholesale representative's license may be granted only
upon verified application on a form provided by the commissioner.
(d) In addition to any other information the commissioner may
require, each applicant shall state on the license application
form:
(1) His or her name and residence address;
(2) The name and business address of the manufacturer,
distributor or broker the applicant represents;
(3) The name and address of each additional manufacturer or
distributor of alcoholic liquors or broker the applicant
represents;
(4) The monetary total of all alcoholic liquor sales, if any,
made by the applicant to the commissioner or to any licensed West
Virginia distributor during the fiscal year preceding the year for
which the applicant is seeking a license;
(5) The monetary total of the gross income received by the
applicant on such sales, if any, during the fiscal year preceding
the year for which the applicant is seeking a license;
(6) Whether the applicant made or gave during previous fiscal
year preceding the year, voluntarily or on request, any gift,
contribution of money or property to the commissioner, any employee
of the commissioner, any state, county or municipal official or any
employee of any distributor licensed pursuant to article eight of
this chapter;
(7) The nature of any relationship by blood or marriage of the
applicant or his or her spouse to any elected or appointed state,
county or municipal official; and
(8) Any information necessary to enable the commissioner to
request a criminal history records check of the applicant.
(d) The commission shall be the licensing authority and
commissioner may grant a wholesale representative's license to
persons of good moral character. the license herein provided and
may refuse to grant such a license to any person convicted of a
felony or an alcohol-related criminal offense within ten years
prior to his or her license application. for such license
(e) The commissioner may not grant a license to:
(A) Any elected or appointed state, county or municipal
official;
(B) Any person who is the spouse, father, mother, son,
daughter, brother, sister, uncle, aunt, nephew or niece of any
elected or appointed state, county or municipal official;
(C) The spouse of any person who is the father, mother, son,
daughter, brother, sister, uncle, aunt, nephew or niece of any
elected or appointed state, county or municipal official;
(D) An member of the Legislature or his or her spouse; or
(E) Any member or officer of any political party executive
committee of this state or his or her spouse.
(f) The commissioner may refuse to grant, suspend or revoke licenses on other grounds as provided by legislative rule.
(g) A license issued under this section Licenses shall be on
an annual basis for the period is valid from the first day of July
until the thirtieth day of June next of the following year. New
and renewal licenses shall be granted only upon verified
application to the commission presented on forms provided by the
commission.
producer broker,
manufacturer or distributor of alcoholic liquors shall must file a
separate application and shall obtain a separate license for each
such representation entity he or she represents.
(i) (1) The annual license fee shall be for a license issued
pursuant to this section is one hundred dollars for each company
represented by the applicant. The fee for any license granted for
the remainder that portion of any license year between the first
day of January and the thirtieth day of June of the same calendar
year shall be is fifty dollars.
No person who is the father, mother, son, daughter, brother,
sister, uncle, aunt, nephew or niece of a member of the commission
or of any elected or appointed state official, county official or
municipal official; or who is the spouse of any such person so
related to a member of the commission or to any elected or
appointive state official, county official or municipal official;
be granted a license. No member of the Legislature or the spouse; of any such member may be granted a license. Nor may any member or
officer of any political party executive committee of this state or
the spouse of any such member or officer be granted a license.
In addition to all other information which the commission may
require to be supplied on the license application forms, each
applicant shall be required to state his name and his residence
address and the name and business address of the producer,
manufacturer or distributor he represents; the name and address of
each additional producer, manufacturer or distributor of alcoholic
liquors he represents; the monetary total of all alcoholic liquor
sales, if any, made by him to the commission or to any distributor
licensed pursuant to article eight of this chapter during the
fiscal year preceding the license year for which he is seeking a
license; the monetary total of the gross income received by him on
such sales, if any, during such fiscal year; whether he has, during
such fiscal year, made or given, voluntarily or on request, any
gift, contribution of money or property to any member or employee
of the commission or of any distributor licensed pursuant to
article eight of this chapter or to or for the benefit of any
political party committee or campaign fund; and his relationship,
if any, by blood or marriage, to any member of the commission or to
any elected or appointive state official, county official or
municipal official. All such applications shall be verified by
oath of the applicant and shall be prepared and filed in duplicate
(j) All such applications and a current list of all wholesale
representative licensees hereunder shall be are matters of public
record and shall be available to for public inspection, at the
commission's commissioner's offices at the State Capitol to the
extent required by article one, chapter twenty-nine-b of this code.
(k) No person licensed under this section may sell or offer to
sell alcoholic liquor to the commissioner or to any distributor on
a fee or commission basis.
(l) Every A licensee who shall advise the commissioner in
writing within thirty days if he or she ceases to be an agent,
broker representative or salesman salesperson, as herein
contemplated, shall so advise the commission in writing and such
person's of a manufacturer, distributor or broker. Upon receipt of
the notice, the commissioner shall immediately remove the
licensee's name shall be immediately removed from the license list
and his or her license shall be canceled and terminated cancel and
terminate the license.
(m) All persons licensed under this section shall be
authorized representatives of the brokers, wineries, farm wineries,
distilleries, mini-distilleries or manufacturers producers or
processors of alcoholic liquor they represent. A licensed person
licensee may not share, divide or split his or her salary with any
person other than his wife or her spouse or some legal dependent.
nor may he or she make any contribution to any political party campaign fund in this state
shall be are
subject to all other provisions of this chapter and to the lawful
rules promulgated by the commission commissioner. Licenses may be
refused, suspended or revoked by the commission commissioner for
cause, including any of the applicable grounds of revocation
specified in section nineteen of this article. Provisions of this
article relating to notice, hearing and appeals shall, to the
extent applicable, govern procedures on suspension and revocation
of licenses hereunder.
(o) Any person firm or corporation violating any provision of
this section, including knowingly making of any false statement in
a verified application for a license, shall be is guilty of a
misdemeanor offense and shall, upon conviction thereof, shall be
fined not exceeding more than one thousand dollars or imprisoned in
jail for not exceeding more than twelve months, or be subject to
both such fine and imprisonment in the discretion of the court.
§60-4-22a. Broker's license.
(a) No person may be, act or serve as a broker to sell, offer
to sell, solicit or negotiate the sale of spirits to the
commissioner on behalf of a manufacturer without first obtaining a
broker's license pursuant to this section.
(b) A broker's license may be granted only upon verified
application on a form provided by the commissioner.
(c) In addition to any other information the commissioner may
require, the applicant for a broker's license shall state on the
application form:
(1) The applicant's name and business address;
(2) The name and business address of each manufacturer the
applicant represents;
(3) The monetary total of all alcoholic liquor sales, if any,
made by the applicant to the commissioner during the fiscal year
preceding the year for which the applicant is seeking a license;
(4) The monetary total of the gross income received by the
applicant on any sales, if any, during the fiscal year preceding
the year for which the applicant is seeking a license; and
(5) Whether the applicant made or gave during previous fiscal
year preceding the year, voluntarily or on request, any gift,
contribution of money or property to the commissioner, to any
employee of the commissioner or to any state, county or municipal
official.
(d) Along with the application, the applicant shall provide
the commissioner with:
(1) A copy of each written letter of appointment designating
the broker as the representative of a distiller or manufacturer;
(2) A copy of the applicant's West Virginia business license;
and
(3) Proof that the applicant, if a corporation or limited liability company, has registered with the Office of the Secretary
of State.
(e) The commissioner may refuse to grant, suspend or revoke a
broker's license on grounds to be set out in a legislative rule
proposed for promulgation pursuant to article three, chapter
twenty-nine-a of this code.
(f) A license issued pursuant to this section is valid from
the first day of July in the year of issuance until the thirtieth
day of June in the following calendar year.
(g) The annual fee for a broker's license is two thousand five
hundred dollars per year.
(h) All applications and a current list of all licensed
brokers are matters of public record and available for public
inspection at the commissioner's offices to the extent required by
article one, chapter twenty-nine-b of this code.
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 or 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
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
(c) 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.
§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 twenty-one or older; and does not hold a license issued pursuant to this article.
(4) "Direct shipper" means a licensed winery or farm winery
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.
(5) "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 fourteen and one-tenths percent and
not exceeding sixteen percent.
(6) "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 five hundred dollars and an average monthly
inventory (exclusive of excluding inventory of wine) of not less
than three thousand dollars. 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 three thousand dollars
and an average monthly inventory (exclusive of excluding inventory
of wine) of not less than three thousand dollars.
(7) "Licensee" means the holder of a license granted under the
provisions of this article or chapter.
(8) "Nonfortifed dessert wine" means wine to which no alcohol
has been added but which has an alcohol content by volume of at
least fourteen and one-tenths percent and not more than exceeding
sixteen percent.
(9) "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
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.
(10) "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.
(11) "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.
(12) "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.
(13) "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.
(14) "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
fourteen percent.
(15) "Tax" includes within its meaning includes any interest,
additions to tax and penalties.
(16) "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.
(17) "Varietal wine" means any wine labeled according to the
grape variety from which such wine is made.
(18) "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.
(19) "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.
(20) "Wine sampling" means a gathering at which a wine
specialty shop 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.
(21) "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 fifteen percent 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 twenty-two percent
alcohol by volume. and which have been matured in wooden barrels
or casks
(23) "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. Annual licenses; fees.
(a) The commissioner may issue and collect the stated annual
fee for the following licenses:
(1) 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 one
hundred fifty dollars 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 twenty-five hundred dollars per year. A distributor
must obtain a separate license and pay a separate annual license
fee of twenty-five hundred dollars for each separate warehouse or
other facility from which the distributor sells, transfers or
delivers wine.
(3) 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
one hundred fifty dollars 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 one hundred fifty dollars for each separate retail
establishment.
(4) 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 twenty-one 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 twenty-one 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 four hundred
dollars 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.
(5) 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 ten dollars, excluding beverage purchases, taxes,
gratuity or other fees. The fee for a private wine bed and
breakfast license is one hundred fifty dollars 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 one hundred fifty dollars
for each establishment.
(6) (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 ten dollars, excluding beverage purchases, taxes, gratuity
or other fees. The fee for a private wine restaurant license is
two hundred fifty dollars 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 two hundred fifty dollars 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 twenty-one 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 one hundred dollars 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 ten dollars, excluding beverage purchases, taxes,
gratuity or other fees. The fee for a private wine spa license is
one hundred fifty dollars 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
one hundred fifty dollars for each establishment.
(7) Direct shipper's license. -- A direct shipper's license
authorizes a winery or farm winery 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 one
hundred fifty dollars 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 two hundred fifty dollars per
year.
(8) Multicapacity winery license. -- A multicapacity winery
license authorizes a winery or farm winery to operate as a
retailer, wine specialty shop, supplier and direct shipper and to
conduct wine tasting events and wine sampling events without
obtaining a separate license for each activity. A winery or farm
winery must notify the commissioner at least thirty days before it
conducts a wine tasting or wine sampling event to secure permission
and must comply with all other requirements in this article governing wine sampling and wine tasting events. The fee for a
multicapacity winery license is three hundred dollars per year.
§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 the first day of July of
each year and ends on the thirtieth day of June of the following
year. If a license is granted for a lesser period, the license fee
shall be computed semi-annually 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) No person may:
(1) Engage in business as 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 or continue to engage in
any such activity after his or her license has expired, been
suspended or revoked;
(2) Be licensed simultaneously as a distributor and as a
retailer;
(3) Be licensed simultaneously as a supplier and as a
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 and a private
wine bed and breakfast, a private wine restaurant or a private wine
spa;
(7) Be licensed simultaneously as a retailer and as a private
club pursuant to article seven of this chapter;
(8) Be licensed simultaneously as a 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;
(9) Serve or sell wine to any person under the age of
twenty-one 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 twenty-one 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 applicants 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 three hundred
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 three hundred feet of the college or university premises.
(f) 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 two hundred
fifty dollars per event.
(2) 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 fifty dollars per event.
(3) 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 fifty dues-paying members, twenty-one 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 fifty dollars per event.
(4) 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.
(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 thirty 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.
§60-8-4. Liter tax.
(a) There is hereby levied and imposed on all wine sold after
the first day of July, two thousand seven, by suppliers to
distributors a supplier to a licensed distributor, except wine sold
to the commissioner, and including all wine sold and sent by a
licensed direct shipper directly to a West Virginia, adult
residents from direct shippers except wine sold to the
commissioner, resident consumer, a tax of twenty-six and four
hundred six-thousandths cents per liter: Provided, That any wine
sold by a winery or farm winery that produces no more than twenty
thousand gallons of wine annually is exempt from the tax, but not
the reporting requirements, imposed by this subsection. The
commissioner shall propose legislative rules, and may propose
emergency rules, for promulgation pursuant to chapter twenty-nine-a of this code to implement this exemption.
(b) Before the sixteenth day of each month, thereafter every
supplier, distributor and direct shipper shall make a written
report under oath to the Tax Commissioner and the Alcohol Beverage
Control Commissioner showing the identity of the purchaser and the
quantity, label and alcoholic content of wine sold by the a
supplier to a licensed West Virginia distributors distributor or
the by a direct shipper to a West Virginia adult residents resident
consumer during the preceding month. and At the same time, the
supplier or direct shipper shall pay to the Tax Commissioner the
tax imposed by this article section on the wine sold by a supplier
to the distributor licensed distributors or the by a direct shipper
to West Virginia adult residents resident consumers during the
preceding month: to the Tax Commissioner
(c) The reports required by this section shall contain other
information and be in the form the Tax Commissioner may require.
For purposes of this article, the reports required by this section
shall be are considered tax returns covered by the provisions of
article ten, chapter eleven of this code.
(d) Failure to timely file the tax returns within five
calendar days of the reports required by this section by the
sixteenth twenty-first day of each month will also subject a
subjects the supplier, distributor and or direct shipper to
penalties under section eighteen of this article.
(e) No wine imported, shipped, sold or distributed in within
or into this state or sold and shipped to this state by a direct
shipper shall be is subject to more than one liter tax.
§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 properly licensed farm winery directly to a
retailer or consumer which are expressly authorized by article four
or article six of this chapter or by sections 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 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 proving that the applicant is
licensed in this state or in its state of domicile as a winery; or
farm winery; supplier or retailer of wine
(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;
(6) Collect and remit to the Tax Commissioner by the twentieth
day of the following month all taxes, including sales taxes, use
taxes and municipal taxes, due on sales and shipments to West
Virginia residents in the preceding month, the amount of which is
to be calculated as if the sales were made in West Virginia at the
location where delivery is made, and file a monthly return
reflecting the taxes paid for all sales and shipments to residents
in West Virginia: Provided, That if the direct shipper does not
have a facility, place of business, employees, tangible personal
property, or real property or a physical presence, beyond a de
minimis presence, in this state, the West Virginia distributor or
adult resident who purchased the wine, rather than the direct
shipper, is responsible for paying the sales taxes, use taxes and
municipal taxes to the Tax Commissioner. The commissioner, with
the advice of the Tax Commissioner, shall prescribe the forms to be
used to file the monthly returns; and
(7) 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 such 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 (d) For purposes of this article, a licensed direct
shipper is deemed 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 of wine 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 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
properly licensed farm winery expressly authorized by article four
or article six of this chapter or by sections 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 subsection prohibits other
sales of wine by a properly licensed farm expressly authorized by
article four or article six of this chapter. 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
eighteen 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 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 eighteen
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 eighteen years of age but at least sixteen 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 eighteen years shall be clearly indicated on the
licensee's license.
§60-8-24. Disposition of revenue.
(a) Wine tax administration.
(1) Fund. -- The fund heretofore designated the Tax
Commissioner's Wine Tax Administration Fund is hereby terminated.
A special revolving fund designated the Tax Commissioner's
Revolving Administration Fund For Wine Fees, is hereby created in
the State Treasury. All moneys in the Tax Commissioner's Wine Tax
Administration Fund at the time of its termination shall be
transferred into the Tax Commissioner's Revolving Administration
Fund For Wine Fees on the effective date of such termination.
(2) Deposits and expenditures. -- The first two hundred
thousand dollars of fees collected under the provisions of this
article during each fiscal year shall be deposited into a special
revolving fund designated the Tax Commissioner's Wine Tax
Administration Fund, which fund is hereby created in the State
Treasury. The Tax Commissioner's Wine Tax Administration Fund the
Tax Commissioner's Revolving Administration Fund For Wine Taxes.
All moneys in the Tax Commissioner's Revolving Administration Fund
For wine taxes may be expended by the Tax Commissioner as herein specified without appropriation by the Legislature. The Tax
Commissioner's Revolving Administration Fund For Wine Taxes shall
be used by the Tax Commissioner to administer and support direct
and indirect costs of the tax division for administration,
collection, (including compliance enforcement), auditing and
distribution of taxes on wine imposed by this code and for which
the Tax Commissioner has administration, collection, compliance
enforcement, auditing or distribution functions or responsibilities.
(b) After collection and deposit of the first two hundred
thousand dollars, as specified in subsection (a) of this section,
all fees collected by the Alcohol Beverage Control Commissioner
under the provisions of this article shall next be deposited in the
State Treasury and credited to a special fund to be known as the
Wine License Special Fund. All moneys in the Wine License Special
Fund may be expended only by the Alcohol Beverage Control
Commissioner for the administration of the provisions of this
article or, to the extent of any excess, for the administration of
this chapter or as may be appropriate by law.
(c) The liter tax imposed and collected by the Tax
Commissioner under the provisions of this article shall be paid
into the State Treasury and deposited in the General Revenue Fund
of the state.
(d) All moneys collected by the Alcohol Beverage Control
Commissioner and the Tax Commissioner under the provisions of this article shall be remitted to the State Treasury monthly within
fifteen days after the end of each month.
§60-8-28. Wine brand licensing and label 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 one hundred dollars for the
registration of such wine each brand, which registration is valid
for three years: such fee shall be returned to the supplier if the
wine is not registered for sale Provided, That on and after the
thirtieth day of June, two thousand eight, a supplier must register
each brand annually and pay an annual registration fee of
twenty-five dollars per brand or ten 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.
(b) 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 twenty-one 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.
(c) 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. 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.
(d) 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.
§60-8-30. Exclusive franchise agreements prohibited.
(a) It shall be illegal is unlawful for any manufacturer,
winery, farm winery or supplier to enter into any exclusive
franchise agreement with any distributor whereby any such which
gives the distributor is given the exclusive right within this
state or in any given territory within this state to distribute
within this state or in any given territory within this state the
a product or products of such manufacturer which are to be sold or
distributed pursuant to the provisions of this article.
(b) Further, all agreements Any agreement between a
manufacturer, winery, farm winery or supplier and a distributor
must be in writing and on file with the commissioner and all such
agreements must provide for that, upon termination of the agreement
by either party, provided that written notice of termination is
will be provided in writing and by certified mail to the
commissioner and to all parties to the agreement. Unless the
written agreement of the parties provides otherwise, the written
notice of termination must be served ninety days prior to the
termination date. Once the notice of termination has been received
by either party, the distributor shall (1) may use the ninety day
notice period provided by this subsection or by the written
agreement of the parties to: (1) Deplete such distributor's its
affected wine inventory; or (2) reach some agreement with the
manufacturer, winery, farm winery or supplier to return or receive
payment for unused salable wine inventory. or receive payment for unused salable wine inventory Unless the written agreement of the
parties provides otherwise, no new distributor shall may be
appointed until the conclusion of the ninety days or as the parties
have otherwise agreed to complete the termination notice period
specified in this subsection or in the written agreement of the
parties.
(c) For the purposes of this article section, "salable" shall
mean means inventory fit for human consumption. or as otherwise
determined by the commissioner
§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 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 farm
winery, private wine restaurant, private club, fair or festival or
other person or entity.
NOTE: The purpose of this bill is to address Constitutional
and other concerns left open after the passage of SB712 during the
2007 Regular Session. The bill sets application procedures for and restricts issuance of waivers of statutory raw product production
quotas and import limitations for farm wineries; eliminates a
restriction on donations to political party campaign funds by
wholesalers' representatives and their spouses; licenses "brokers"
as a separate class of wholesaler representative; combines sampling
and tasting functions in the wine specialty shop license and
increases the annual license fee; exempts a winery producing 20,000
gallons of wine or less annually from the liter tax; compresses
direct shipper licensing requirements into a single section; limits
direct shipping to wineries and farm wineries - suppliers and
retailers deleted; requires consumers to pay sales/use tax on
direct shipments of wine from wineries that have no minimum
physical presence in WV; adopts language regarding disposition of
tax income to satisfy the Auditor; and changes provisions relating
to brand registration.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. Sections 60-1-5a and 60-3-25 are repealed.
This bill was recommended for passage by the Joint Judiciary
Committee.