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WEST VIRGINIA CODE
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WVC 60- CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

WVC -1- ARTICLE 1. GENERAL PROVISIONS.


WVC 60-1-1 §60-1-1. Purpose of chapter; declaration of legislative findings, policy and intent.
The purpose of this chapter is to give effect to the mandate of the people expressed in the repeal of the state prohibition amendment; and it is hereby found by the Legislature and declared to be the public policy of this state to regulate and control the manufacture, sale, distribution, transportation, storage and consumption of alcoholic liquors and at the same time to assure the greatest degree of personal freedom consistent with the health, safety, welfare, peace and good morals of the people of this state. To these ends the police power of this state is pledged to the sound control and the temperate use of alcoholic liquors. In order to further promote and foster the hereinabove policy of the Legislature, the provisions of this chapter and of the rules and regulations promulgated pursuant thereto shall be construed so as to accomplish and effectuate these stated purposes.


WVC 60-1-2 §60-1-2. Applicability of chapter.
A person shall not sell, possess for sale, transport, or distribute alcoholic liquors in this state except in accordance with the provisions of this chapter.


WVC 60-1-3 §60-1-3. Restrictions on sale, manufacture or consumption; exceptions.
Subject to the provisions of this chapter, alcoholic liquors, in this state:

(1) Shall be sold only in sealed packages, except by organizations licensed under authority of article seven of this chapter.

(2) Shall not be sold for consumption on the premises where sold, except as authorized by article seven of this chapter.

(3) Shall be manufactured only by persons licensed under the provisions of this chapter.

(4) Shall not be consumed or sold for consumption in a public place.


WVC 60-1-4 §60-1-4. Sales to be made by or through West Virginia alcohol beverage control commissioner.
Alcoholic liquors shall be sold at wholesale and retail in this state only by or through the West Virginia alcohol beverage control commissioner or retail agencies established by him or any predecessor commissioners or commission, except as authorized by articles seven and eight of this chapter.


WVC 60 - 1 - 5 §60-1-5. Definitions.

     For the purposes of this chapter:

     "Alcohol" shall mean ethyl alcohol whatever its origin and shall include synthetic ethyl alcohol but not denatured alcohol.

     "Beer" shall mean 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.

     "Nonintoxicating beer" shall mean any beverage obtained by the fermentation of barley, malt, hops or similar products or substitute and containing not more alcohol than that specified by section two, article sixteen, chapter eleven of this code.

     "Wine" shall mean 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.

     "Winery" shall mean an establishment where wine is manufactured or in any way prepared.

     "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: Provided, however, That the term "public place" shall not mean or include any legally demarcated area designated solely for the consumption of beverages and freshly prepared food that directly connects and adjoins any portion or portions of a premises that qualifies and is licensed under the provisions of this chapter to sell alcoholic liquors for consumption thereupon: Provided further, That the term "public place" shall also not include a facility constructed primarily for the use of a Division I college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer or other Division I sports stadium which holds a special license to sell wine pursuant to the provisions of section three, article eight of this chapter, in the designated areas of sale and consumption of wine and other restrictions established by that section and the terms of the special license issued thereunder.

     "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.
WVC 60 - 1 - 5 A §60-1-5a. Farm wineries defined.
(a) For the purpose of this chapter "Farm winery" means an establishment where in any year fifty thousand gallons or less of wine and nonfortified dessert wine are manufactured exclusively by natural fermentation from grapes, other fruits or honey or other agricultural products containing sugar and where port, sherry and Madeira wine may also be manufactured, with twenty-five percent of such raw products being produced by the owner of such farm winery on the premises of that establishment and no more than twenty-five percent of such produce originating from any source outside this state. Any port, sherry or Madeira wine manufactured by a winery or a farm winery must not exceed an alcoholic content of twenty-two percent alcohol by volume and shall be matured in wooden barrels or casks.

(b) Notwithstanding the provisions of subsection (a) of this section, a farm winery may include one off-farm location. The owner of a farm winery may provide to the commissioner evidence, accompanied by written findings by the West Virginia Agriculture Commissioner in support thereof, that the owner has planted on the premises of the farm winery young nonbearing fruit plants. The commissioner may grant permission for one off-farm location in an amount equal to that reasonably expected to be produced when the nonbearing fruit plants planted on the farm winery come into full production. The length of time of the permission to use an off-farm location shall be determined by the commissioner after consultation with the Agriculture Commissioner.


WVC 60 - 1 - 5 B §60-1-5b. Mini-distilleries defined.
For the purpose of this chapter: "Mini-distillery" means an establishment where in any year no more than twenty thousand gallons of alcoholic liquor is manufactured with no less than twenty-five percent of raw agricultural products being produced by the owner of the mini-distillery on the premises of that establishment, and no more than twenty-five percent of raw agricultural products originating from any source outside this state: Provided, That the maximum allotted production amounts shall not exceed the annual incremental production limitations provided for pursuant to section three-a of this article: Provided, however, That a distillery licensed and operating as of the effective date of this section that applies for designation by the Commissioner as a mini-distillery is eligible to be licensed as a mini-distillery without compliance with the requirements for the percentage use of on-premises grown and in-state raw agricultural products.


WVC 60-1-6 §60-1-6. How chapter cited.
This chapter may be cited as the "Alcohol Beverage Control Act".


WVC 60-1-7 §60-1-7. Applicability of chapter to nonintoxicating beer.
The provisions of this chapter do not apply to nonintoxicating beer except as is otherwise specifically provided.


WVC -2- ARTICLE 2. ALCOHOL BEVERAGE CONTROL COMMISSIONER.


WVC 60-2-1 §60-2-1. Office created; powers and functions generally; office of liquor control commissioner abolished and powers transferred.
To accomplish the purposes of this chapter there is hereby created the office of West Virginia alcohol beverage control commissioner. The commissioner shall have and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by the West Virginia liquor control commissioner. The office of the West Virginia liquor control commissioner is hereby abolished. Wherever in this chapter and elsewhere in law reference is made to the West Virginia liquor control commissioner or liquor control commission such reference shall henceforth be construed and understood to mean the West Virginia alcohol beverage control commissioner. All parts and provisions of this chapter rendered meaningless and inapplicable by the provisions hereof are hereby modified and amended so that the provisions of this chapter will be consistent and harmonious in their entirety.


WVC 60-2-2 §60-2-2. Appointment of commissioner.
The commissioner shall be appointed by the governor, with the advice and consent of the Senate, and shall devote his entire time to the duties of his office.


WVC 60-2-3 §60-2-3. Term of office; vacancy.
The commissioner shall be appointed for a term of four years and any appointment to fill a vacancy shall be for the unexpired term.


WVC 60-2-4 §60-2-4.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-2-5 §60-2-5.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-2-6 §60-2-6.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-2-7 §60-2-7. Oath and bond.
Before entering upon the duties of the office, the commissioner shall take and subscribe to the oath prescribed by section 5, article IV, of the constitution of this state, and shall give bond in the penalty of twenty-five thousand dollars, to be approved by the governor and conditioned upon the faithful performance of the duties of the office and the accounting for and payment into the treasury of all moneys coming into the commissioner's custody by virtue of the office. The bond and oath shall be filed with the secretary of state.


WVC 60-2-8 §60-2-8.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60 - 2 - 9 §60-2-9. Salary and expenses.
The commissioner shall receive an annual salary as provided in section two-a, article seven, chapter six of this code, and shall be paid actual and necessary traveling expenses incurred in performance of the official duties of the office.


WVC 60 - 2 - 10 §60-2-10.
Repealed.

Acts, 2003 Reg. Sess., Ch. 69.


WVC 60 - 2 - 11 §60-2-11. Powers and duties.
The alcohol beverage control commissioner shall have the following powers and duties and any and all other powers and duties reasonably necessary and convenient for the purpose of this chapter:

(1) Exercise general supervision of, and make rules and regulations for, the management of his or her agency;

(2) Sign and execute in the name of the commissioner any contract or agreement authorized by this chapter;

(3) Supervise the fiscal affairs and responsibilities of the agency;

(4) With the approval of the governor, acquire title to and purchase real estate containing 12.168 acres situate on River Road in the Hub Industrial Park, Nitro, Putnam County, which real estate is improved by block and steel building containing approximately one hundred fifty thousand (150,000) square feet, formerly known as the Heck's warehouse, for a sale price not to exceed two million, two hundred fifty thousand dollars ($ 2,250,000.00);

(5) With the approval of the governor and the board of public works, sell, in part or in whole, the real estate containing 12.168 acres and a warehouse situate on River Road in the Hub Industrial Park, Nitro, Putnam County, for a sale price of at least the appraised fair market value and upon terms the commissioner determines to be in the best interest of the state of West Virginia;

(6) With the approval of the governor and the board of public works, and upon the sale of real estate containing 12.168 acres and a warehouse situate on River Road in the Hub Industrial Park, Nitro, Putnam County, acquire title to and purchase, upon terms the commissioner determines to be in the best interest of the state of West Virginia, real estate containing a replacement warehouse of a size and in a location that the commissioner determines meets the storage needs of the agency;

(7) Keep a complete and accurate record of all proceedings, record and file all bonds and contracts taken or entered into and assume responsibility for the custody and preservation of all papers and documents pertaining to the commissioner;

(8) Purchase or lease as provided by law all equipment necessary for the conduct of the agency;

(9) Report to the governor each year all information relative to the operation and functions of the agency. The commissioner shall make such other reports and recommendations as may be required by the governor;

(10) Exercise any other power that may be necessary or proper for the orderly conduct of the business and the effective discharge of the duties of the commissioner; and

(11) Invoke any legal or equitable remedies for the enforcement of the orders of the commissioner or the provisions of this chapter.


WVC 60-2-12 §60-2-12. Assistants and employees.
The commission shall appoint or employ such assistants and employees as may be necessary to the efficient operation of the department and fix their salaries. All assistants and employees shall be appointed or employed to serve during the will and pleasure of the commission.


WVC 60-2-13 §60-2-13. Bonds of employees.
The commission shall require every employee who collects fees or handles funds, or who has custody of equipment, supplies, and other property belonging to the state, to take the oath prescribed by section 5, article IV of the state constitution; and the commission shall require to be furnished by every employee, or shall itself obtain, a bond, insurance policy, indemnity contract, or other contract, protecting and indemnifying the state against any and all loss or damage that may be occasioned by the failure of the employee faithfully to perform the duties pertaining to his employment, and to account for, pay over and deliver to the proper officer or agent of the commission or state all moneys and other property which may come into his custody or under his control by virtue of his employment. Such bond, insurance policy, indemnity contract, or other contract, shall be in such form, and in such sum, and with such security, as may be prescribed or approved by the commission, and may cover any one employee or any number of employees. The premiums for all such bonds, insurance policies, indemnity contracts, or other contracts, shall be paid by the commission.


WVC 60-2-14 §60-2-14. Authority to grant and revoke licenses.
The commission shall have the authority to grant and revoke licenses as provided in article four of this chapter.


WVC 60-2-15 §60-2-15. Regulation of advertising.
The commission shall prescribe regulations governing the advertising of alcoholic liquors in this state. The regulations shall prohibit advertising that encourages intemperance, induces minors to purchase, or tends to deceive or misrepresent.


WVC 60-2-16 §60-2-16. Rules and regulations.
The commission shall have the power to prescribe rules and regulations to give effect to the powers vested in it by this chapter. Rules and regulations shall be recorded in a book especially kept for that purpose, and in its discretion may be published for general circulation. All other records and entries necessary to show the official conduct of the commission shall be preserved and shall be public records and open for inspection during business hours.


WVC 60-2-17 §60-2-17. Powers and duties exercised by employees.
All powers and duties vested in the commission, except the power to sign contracts, may be exercised by the appointees or employees of the commission under its direction; but the commission shall be responsible for their acts.


WVC 60-2-18 §60-2-18. Hearings and proceedings.
In all hearings and proceedings before the commission, the evidence of witnesses and the production of documentary evidence may be required. Summons may be issued by it for appearance at any designated place of hearing. In case of disobedience to a summons or other process, the commission or any party to the proceedings before the commission may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, bonds and documents. Upon proper showing, the court shall issue an order requiring witnesses to appear before the commission, produce all books and papers, and give evidence touching the matter in question. Any person failing to obey the order may be punished by the court as for contempt. A claim that evidence may tend to incriminate the person giving the evidence shall not excuse him from testifying, but he shall not be prosecuted for any offense concerning which he is compelled to testify.


WVC 60-2-19 §60-2-19. Legal services.
The attorney general and the prosecuting attorneys of the several counties shall render to the commission, without additional compensation, such legal services as it may require of them in the discharge of its duties under the provisions of this chapter.


WVC 60-2-20 §60-2-20. Civil responsibility.
The members of the commission shall not be civilly responsible for any act done or omitted in good faith in the discharge of duties imposed upon them by this chapter.


WVC 60 - 2 - 21 §60-2-21. Audit.

      At least every five fiscal years, the Legislative Auditor shall audit the affairs of the West Virginia Alcohol Beverage Control Commissioner and report the results of the audit to the Governor. The cost of the audit shall be paid from the operating fund.
WVC 60 - 2 - 22 §60-2-22. Authority to utilize scanner technology in sales; authority to execute contracts relating thereto.
(a) The commissioner may, pursuant to section eleven of this article, authorize and establish standards for the use of scanner technology for the verification of age of purchasers of alcoholic beverages and wine as provided in article eight of this chapter, and nonintoxicating beer as provided for in article sixteen, chapter eleven of this code. Any scanner technology may not be used for the collection of personal identifiable information of any purchaser, which includes, but is limited to, drivers license number, social security number or other descriptive information contained on the license, other than the age of the purchaser.

(b) In addition to the commissioner's powers set forth in section eleven of this article, the commissioner may sign and execute in the name of the office of alcohol beverage control commissioner one or more contracts or agreements pertaining to the sale or licensing and promotion of proprietary scanner technology by the commissioner, or his or her designated contractual partner, to any interested person, upon terms the commissioner believes to be in the best interests of this state, and to amend, extend or terminate any contract or agreement: Provided, That all contracts are subject to the review process contained in section thirteen, article three, chapter five-a of this chapter.

(c) "Scanner technology" includes any device that uses technology intended to control the access of minors to alcohol and tobacco products and which is capable of:

(1) Capturing the information from a bar code or magnetic strip on a driver's license or identification card issued by the division of motor vehicles;

(2) Producing a declaration of age in print form and storing a record of the event in memory;

(3) Producing an audible, visual and printed result;

(4) Reporting a history of the events, including the ability to transfer the data for archiving and database development purposes; and

(5) Storing at least one thousand events at any time before data is transferred.

(d) Moneys derived from the sale, licensing and promotion of the proprietary scanner technology shall be deposited in a special account in the state treasury to be known as the "Scanner Technology Fund." Expenditures from the fund shall be for the maintenance and development of the proprietary scanner technology described in this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand four, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.


WVC -3- ARTICLE 3. SALES BY COMMISSIONER.


WVC 60-3-1 §60-3-1. Sales at retail and wholesale.
The sale of alcoholic liquors at wholesale and retail in this state shall be a state monopoly, except for retail sales made by authority of article six, section two and article seven of this chapter. Alcoholic liquors shall be sold at retail only through the state stores, agencies of the West Virginia alcohol beverage control commissioner, and may be sold by private clubs holding a license issued under the provisions of article seven of this chapter.

The commissioner may sell such liquors at wholesale to persons licensed to purchase at wholesale as provided in this chapter and wine may be sold by farm wineries licensed under and subject to the provisions of this chapter.

(NOTE: The preceding version of §60-3-1 is in the form of H.B. 935 enacted March 5, 1981, relating to making certain exemptions from the state monopoly on the sale of wine. Specifically, section two, article six of this chapter relating to the manufacture and sale of cider and the provision on farm wineries licensed under chapter sixty are the exemptions. See the following version of this same section enacted in a different form. For 1981 Acts, see chapter 218.)

§60-3-1. Sales at retail and wholesale.

The sale of alcoholic liquors at wholesale and retail in this state is a state monopoly, except for sales made by authority of articles seven and eight of this chapter.

(NOTE: The preceding version of §60-3-1 is in the form of H.B. 1111 enacted March 26, 1981, mainly removing the state monopoly on the sale of wine. See above the first version of this same section enacted in a different form. For 1981 Acts, see chapter 217.)


WVC 60-3-2 §60-3-2. Establishment and discontinuance of stores and agencies; location.
The commission shall establish state stores and agencies at places throughout the state so as to serve adequately and reasonably the demand for the sale at retail of alcoholic liquors, subject only to the limitations imposed by article five of this chapter. It may discontinue a store or agency when in its opinion it is advisable to do so.

A store or agency shall not be located in the immediate vicinity of a church or school.


WVC 60-3-3 §60-3-3. Warehouses.
The commission shall establish and manage as many warehouses as may be necessary, but not more than four, for the storage of alcoholic liquors and the supply of state stores and agencies.


WVC 60-3-4 §60-3-4. Managers and employees of stores.
The commission shall appoint a manager for and assign employees to each state store. The manager shall be responsible to the commission for the conduct and operation of the store.


WVC 60-3-5 §60-3-5. Rules and regulations to govern stores and agencies.
The commission shall issue appropriate rules and regulations to govern the conduct of state stores and agencies.


WVC 60-3-6 §60-3-6. Agencies to procure stocks; sales at retail.
A state agency shall procure stocks of alcoholic liquor for sale at retail only from the commission. Sales at retail in agencies shall be made in the same manner as sales in state stores.


WVC 60-3-7 §60-3-7. Compensation and bond of agent.
Agents shall be compensated based upon the average monthly gross revenues of the agency or store, excluding sales tax thereon. The amount of compensation shall be computed and paid as follows:

(1) For gross revenues up to three thousand dollars per month, four hundred dollars compensation per month.

(2) For gross revenues of not less than three thousand dollars nor more than six thousand dollars per month, ten percent of all gross revenues between said three thousand dollars and six thousand dollars, which shall be in addition to the compensation as provided in subdivision (1) hereinabove.

(3) For gross revenues of not less than six thousand dollars nor more than eight thousand dollars per month, eight percent of all gross revenues between said six thousand dollars and eight thousand dollars, which shall be in addition to the compensation as provided in subdivisions (1) and (2) hereinabove.

(4) For gross revenues of not less than eight thousand dollars nor more than ten thousand dollars per month, six percent of all gross revenues between said eight thousand dollars and ten thousand dollars, which shall be in addition to the compensation as provided in subdivisions (1), (2) and (3) hereinabove.

(5) For gross revenues over ten thousand dollars per month, four percent of all gross revenues over said ten thousand dollar amount, which shall be in addition to the compensation as provided in subdivisions (1), (2), (3) and (4) hereinabove.

The agent shall pay for utilities, renovations and operating expenses of the agency from the compensation set forth herein.

Each agent shall give bond in an amount fixed by the commissioner conditioned upon the faithful observance of the provisions of this chapter, compliance with the rules and regulations of the commissioner, and the accounting for and paying over of all moneys coming into his custody by virtue of his agency. An agent shall not, at any time, have on hand a stock of alcoholic liquors greater in value than the amount of his bond.


WVC 60-3-8 §60-3-8. Agent to make no profit from sales.
An agent shall make no profit from the sale of alcoholic liquors, nor shall he receive compensation for the performance of his duties as agent other than that paid him by the commission.


WVC 60-3-9 §60-3-9. Uniform prices; posting and distribution of price lists; continuation of price increase on alcoholic liquors.
The commissioner shall, from time to time, fix uniform prices for each variety, class and brand of alcoholic liquors offered for sale in state stores. Alcoholic liquors shall be sold in state stores and agencies only at the uniform prices fixed by the commissioner.

The commissioner shall prepare price lists showing the price of each variety, class or brand. Price lists shall be posted prominently in each store and shall be available for distribution and inspection in every state store and agency.

The commissioner, in the exercise of his authority under this section, is hereby directed to continue the increase in the price of alcoholic liquors, heretofore effected pursuant to the provisions of this section as amended by chapter six, acts of the Legislature of West Virginia, regular session, one thousand nine hundred fifty-one, which is presently producing an additional annual revenue of one million six hundred thousand dollars on an annual volume of business equal to the average for the past three years.

The revenue derived from the increase in the price of alcoholic liquors shall be deposited into the general revenue fund in the manner hereinafter provided in section seventeen of this article.


WVC 60-3-9a §60-3-9a.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-3-9b §60-3-9b.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-3-9c §60-3-9c.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-3-9d §60-3-9d. Tax on purchases of intoxicating liquors outside corporate limits of municipalities.
For the purpose of providing financial assistance to and for the use and benefit of the various counties and municipalities of this state, there is hereby levied a tax upon all purchases outside the corporate limits of any municipality of intoxicating liquor from state stores or other agencies of the alcohol beverage control commissioner, of wine from any person licensed to sell wine at retail under the provisions of article eight, chapter sixty of this code, and of wine from distributors licensed to sell or distribute wine under the provisions of said article eight. The tax shall be five percent of the purchase price and shall be added to and collected with the purchase price by the commissioner, by the person licensed to sell wine at retail, or by the distributor licensed to sell or distribute wine, as the case may be: Provided, That no such tax shall be collected on the intoxicating liquors sold by or purchased from holders of a license issued under the provisions of article seven of this chapter.

All such tax collected within one mile of the corporate limits of any municipality within the state shall be remitted to such municipality; all other tax so collected shall be remitted to the county wherein collected: Provided, That where the corporate limits of more than one municipality be within one mile of the place of collection of such tax, all such tax collected shall be divided equally among each of said municipalities: Provided, however, That such mile is measured by the most direct hard surface road or access way usually and customarily used as ingress and egress to the place of tax collection.

The West Virginia alcohol beverage control commissioner by appropriate rules and regulations shall provide for the collection of such tax upon all purchases outside the corporate limits of any municipality of intoxicating liquor from state stores or other agencies of the alcohol beverage control commissioner, separation or proration of the same and distribution thereof to the respective counties and municipalities for which the same shall be collected. The tax commissioner by appropriate rules and regulations shall provide for the collection of such tax upon all purchases outside the corporate limits of any municipality of wine from any person licensed to sell wine at retail under the provisions of article eight, chapter sixty of this code, or from distributors licensed to sell or distribute wine under the provisions of said article eight, and shall also provide for separation or proration of the same and distribution thereof to the respective counties and municipalities for which the same shall be collected. Such rules and regulations shall provide that all such taxes shall be deposited with the state treasurer and distributed quarterly by the treasurer upon warrants of the auditor payable to the counties and municipalities.


WVC 60-3-10 §60-3-10. Records and accounts for stores and agencies; reports and audits.
The commission shall install a uniform system of records and accounts for state stores and agencies. It shall require a daily report of sales and stock inventory, and shall audit the accounts and check the stock inventory of each store and agency at least once in every thirty days.


WVC 60-3-11 §60-3-11. Stock or inventory control.
The commission shall prescribe a method of stock or inventory control that will show the amount of each variety, class and brand of alcoholic liquor on hand in each state store, agency, and warehouse at any time.


WVC 60-3-12 §60-3-12. Days and hours state stores and agencies may open.
The commission shall fix the days on which state stores shall be open and the hours of opening and closing, and the hours during which agencies may sell alcoholic liquors. Stores shall not be open nor shall agencies sell alcoholic liquors on:

1. Sundays.

2. Any general election day.


WVC 60-3-13 §60-3-13. Advertising or recommendation of brands prohibited.
A store or agency shall not display or distribute any advertising matter, nor shall a person employed in a state store or agency advertise or recommend any type, class or brand of alcoholic liquors.


WVC 60-3-14 §60-3-14. Acquisition of equipment, etc.; analysis of liquors.
The commission shall acquire by purchase or lease equipment, materials, supplies and other property necessary for the operation of state stores in the manner required for the purchase or lease of property by other state departments. This requirement shall not apply to the purchases of alcoholic liquor for sale or to the leasing of premises for state stores or warehouses.

The commission shall require a sworn statement with the delivery of alcoholic liquors purchased by it that the goods are as represented, and do not contain any impure or deleterious matter. The commission shall by frequent chemical analysis determine that liquors offered for sale in state stores and agencies are pure, potable, and not misrepresented.


WVC 60-3-15 §60-3-15. Amount of operating fund and value of inventory stock allowed; contract for manufacture of state brand; ordering listed and unlisted brands.
In order to avoid the accumulation of excessive stocks in warehouses and stores, the commissioner shall so plan his purchases of alcoholic liquors for sale in state stores and agencies that none of the stock on hand be on a consignment basis and that the amount of operating fund and the value of inventory stock shall not exceed twenty million dollars.

The commissioner may, with the consent of the governor, contract for the manufacture of alcoholic liquors for sale in state stores and agencies. Such liquors shall bear a special designation as "state brand."

Listed brands and sizes of spirituous liquors shall not be reordered in quantities greater than at the rate of comparative gross sales as determined by the last three monthly reports published prior to each reorder: Provided, That to take advantage of price discounts or to anticipate price increases listed brands may be reordered upon the basis of anticipated needs to be determined by projecting adjusted sales records; but in no event shall the amount of operating fund and the value of inventory stock exceed the limit provided in the first paragraph of this section.

The initial order of any new or unlisted brand of spirituous liquor, excepting wine, shall not exceed five hundred cases. The initial order of new or unlisted wine brands shall not exceed fifteen hundred cases.


WVC 60-3-16 §60-3-16. Sale in sealed packages; manufacturer's label.
Alcoholic liquors shall be sold only in sealed packages, bearing such seals and labels as the commission may require.

A manufacturer of liquor offered for sale in state stores and agencies shall attach to each bottle a special label bearing an accurate description of the contents of the bottle in such form and detail as the commission may require.


WVC 60-3-17 §60-3-17. Regulations as to handling and depositing of moneys collected; monthly remittances; penalty.
The commissioner, with the approval of the state treasurer, shall prescribe regulations for the handling and depositing of all moneys collected by the commissioner. All receipts accruing to and available for the general revenue fund in excess of the requirements of the operating fund and the license fee and additional sales tax imposed by the provisions of this chapter shall be remitted by the commissioner to the state treasury monthly within fifteen days next after the end of each calendar month.

If the commissioner fails to remit such moneys to the state treasury within the time specified in accordance with the provisions of this section, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined one thousand dollars.


WVC 60-3-18 §60-3-18. Operating fund continued; use; maximum amount.
The operating fund of the commissioner, heretofore created in the state treasury, is hereby continued and shall be a revolving fund from which all operation and administration expenses of the commissioner shall be paid.

All moneys collected by the commissioner shall be credited to the operating fund until that fund reaches an amount sufficient for the current and routine requirements of the office of the West Virginia alcohol beverage control commissioner, this amount to be not in excess of the amount hereinbefore provided in section fifteen of this article.


WVC 60-3-19 §60-3-19.
Repealed.

Acts, 1966 Reg. Sess., Ch. 3.


WVC 60-3-19a §60-3-19a.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-3-20 §60-3-20. Sales, mode of payment.
The sale of alcoholic liquors in state stores and in state agencies shall be for cash, money order, certified check, cashier's check or traveler's check only. In the case of private clubs as defined in article seven of this chapter, letters of credit from banks guaranteeing payment of checks may be filed with the commissioner. Filing of such letters may permit the commissioner to accept the club's check.


WVC 60-3-21 §60-3-21. Limitation on amount to be sold.
Not more than ten gallons of alcoholic liquor shall be sold to a person at one time without the approval of the commissioner or his representative; but a sale in excess of ten gallons may be made to a religious organization purchasing wine for sacramental purposes, and sales in case lots may be made in the discretion of the commissioner: Provided, That this section shall not apply to private clubs as defined in article seven of this chapter.


WVC 60-3-22 §60-3-22. Sales to certain persons prohibited.
(a) Alcoholic liquors and nonintoxicating beer as defined in section three, article sixteen, chapter eleven of this code shall not be sold to a person who is:

(1) Less than twenty-one years of age;

(2) An habitual drunkard;

(3) Intoxicated;

(4) Addicted to the use of any controlled substance as defined by any of the provisions of chapter sixty-a of this code; or

(5) Mentally incompetent.

(b) It shall be a defense to a violation of subdivision (1), subsection (a) of this section if the seller shows that the purchaser:

(1) Produced written evidence which showed his or her age to be at least the required age for purchase and which bore a physical description of the person named on the writing which reasonably described the purchaser; or

(2) Produced evidence of other facts that reasonably indicated at the time of sale that the purchaser was at least the required age.


WVC 60-3-22a §60-3-22a. Unlawful acts by persons.
(a) Any person under the age of twenty-one years who, for the purpose of purchasing alcoholic liquors from a state liquor store or an agency, misrepresents his or her age, or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase alcoholic liquors from a state liquor store or an agency, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed fifty dollars or shall be imprisoned in the county jail for a period not to exceed seventy-two hours, or both such fine and imprisonment, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.

(b) Any person who shall knowingly buy for, give to or furnish to anyone under the age of twenty-one to whom they are not related by blood or marriage, any alcoholic liquors from whatever source, is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars or shall be imprisoned in the county jail for a period not to exceed ten days, or both such fine and imprisonment.


WVC 60-3-23 §60-3-23. Conduct of purchasers upon premises of state store.
A person, while on the premises of a state store or agency, shall not:

(1) Break the seal upon any package of alcoholic liquors;

(2) Consume alcoholic liquor;

(3) Loiter.


WVC 60-3-24 §60-3-24. Authority of employees to make arrests; penalty for resisting or assaulting employee; enforcement of chapter.
An appointee or employee of the commission shall have the authority of a peace officer, to arrest a person for an act committed on or about the premises of a state warehouse, state store, or agency, and in his presence, which amounts to:

(1) A violation of a provision of this chapter;

(2) Disorderly conduct.

The commission shall furnish its appointees and employees with an official badge as evidence of this authority.

A person who resists or commits an assault upon an appointee or employee of the commission while engaged in the performance of his duties hereunder shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by confinement in jail not less than thirty days nor more than six months, or, in the discretion of the court, by both such fine and imprisonment.

Members of the commission are hereby vested, and such officers, agents and employees of the commission as shall be designated by the commission shall, upon being so designated, be vested, with like power and authority to enforce the provisions of this chapter and the criminal laws of the state relating thereto as are vested in sheriffs of counties and members of the department of public safety.


WVC 60-3-25 §60-3-25. Permit for farm winery to import produce in excess of established limits.
Upon application by the holder of a farm winery license, filed with the West Virginia alcohol beverage control commissioner, showing, due to unusual climatic or other conditions adversely affecting its ability to obtain from within this state seventy-five percent of the grapes, grape juice, other fruits or fruit juices or honey necessary to produce its wine, the commissioner may issue to the applicant a permit to import such products in an amount deemed necessary by the commissioner to allow such farm winery to produce wine within the quota established by section five-a, article one of this chapter. The permit issued under this section shall not be effective for more than ninety days. The burden of proof shall be upon the applicant to show that grapes, grape juice, fruit, fruit juice or honey of the type normally used by the licensee are not available from any other source within the state of West Virginia, and no application for a permit under this section shall be considered by the commissioner unless it is accompanied by written findings by the West Virginia agriculture commissioner in support thereof.


WVC -3A- ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.


WVC 60-3A-1 §60-3A-1. Short title.
This article shall be known and may be cited as the "State Retail Liquor License Act".


WVC 60 - 3 A- 2 §60-3A-2. Legislative findings and declaration; legislative purpose.
(a) The Legislature hereby finds and declares that the sale of liquor at retail should no longer be by the state, but rather by retail licensees; that there is a need for the state to control the wholesale sales of liquor; that the health and welfare of the citizens of this state will be adequately protected by the licensing and control of such retail licensees; that the sale of liquor through retail licensees will satisfy reasonable consumer concerns of availability and price; and that the operation and efficiency of state government will be improved by removing the state from the retail sale of liquor and permitting sales of liquor by retail licensees under licenses issued by the state together with strict enforcement of laws and rules relating to the sale of liquor.

(b) It is the purpose of the Legislature in providing for the retail sale of liquor to:

(1) Continue revenue to the state from the wholesale sale of liquor by requiring all retail licensees to purchase all liquor (other than wine) from the commissioner and by further requiring all private clubs licensed under the provisions of article seven of this chapter to purchase all liquor (other than wine) from retail licensees;

(2) Provide a system of controls, through limitations on the numbers of retail outlets and application of the police power of the state, to discourage the intemperate use of liquor;

(3) Preserve and continue the tax base of counties and municipalities derived from the retail sale of liquor;

(4) Obtain revenue for the state from the issuance of retail licenses;

(5) Facilitate the responsible marketing and growth of existing retail outlets; and

(6) Encourage the sale of liquor in freestanding liquor retail outlets that offer a wide variety of liquor at competitive prices.


WVC 60 - 3 A- 2 A §60-3A-2a. Further legislative findings, declarations and purpose.
(a) In addition to the findings and declarations set forth in subsection (a), section two of this article, the Legislature hereby finds and declares that:

(1) The provisions of this article as enacted during the regular session of the Legislature in 1990 were intended to require that all licenses issued for the retail sale of liquor expire as of July 1, 2000, and that the issuance of retail licenses for the ten-year period beginning July 1, 2000, and for each ten-year period thereafter, be based on sealed competitive bids except as provided in section ten-b of this article;

(2) It is the intention of the Legislature to provide that all retail licenses issued beginning July 1, 2000, expire ten years from the date of issuance and that every ten years the issuance of retail licenses be based on competitive bids, except as provided in section ten-b of this article;

(3) The purposes set forth in subsection (b), section two of this article remain the purposes of the Legislature;

(4) Many of those persons who currently hold retail licenses have not only provided the services to the public contemplated by this article, but in many instances have provided employment, invested significant time and money into their businesses and otherwise made substantial contributions to the economic and civic development of the communities in which they conduct business, and therefore, current retail licensees should be afforded special consideration if their bids for the licenses issued for the ten-year period beginning July 1, 2000, and July 1 every ten years thereafter, be unsuccessful;

(5) Those persons who are issued a retail license for the ten-year period beginning on July 1, 2000, and for any ten-year period thereafter should also be afforded special consideration if they operate or seek to operate a freestanding liquor retail outlet or if their bids for a retail license are unsuccessful; and

(6) Further statutory changes are desirable to effect the purposes set forth in subsection (b), section two of this article.

(b) It is, therefore, the further purposes of the Legislature in providing for the retail sale of liquor to:

(1) Require that all licenses issued for the ten-year period beginning July 1, 2000, and for each ten-year period thereafter be based on sealed competitive bids except as provided in section ten-b of this article;

(2) Provide active retail licensees who operate or seek to operate a freestanding liquor retail outlet the opportunity to pay a purchase option for a Class A retail license or licenses for the ten-year period beginning July 1, 2010, and for each ten-year period thereafter;

(3) Provide current retail licensees who, having bid in a manner consistent with the provisions of this article, fail to submit the highest bid for licenses issued for the ten-year period beginning July 1, 2010, and for each ten-year period thereafter an additional opportunity to obtain the license; and

(4) Effect statutory changes to further the purposes provided in this section and section two of this article.


WVC 60 - 3 A- 3 §60-3A-3. Sale of liquor by retail licensees permitted; cessation of retail sale of liquor by state.
(a) Notwithstanding any provision of this code to the contrary, the sale of liquor by retail licensees in accordance with the provisions of this article is lawful.

(b) Upon the opening of a retail outlet in any market zone, the state shall, as soon as practicable, discontinue operating any and all state liquor stores and agency stores within the market zone so long as a retail outlet is in operation in the market zone.

(c) No provision of this section shall prevent the commissioner, with the consent of the board, from operating a state liquor store in a market zone pursuant to the provisions of article three of this chapter where there are no retail outlets in operation, and the operation of any retail outlet in the market zone is prevented by a matter in controversy pending judicial adjudication or the licensee is unable or unwilling to open a retail outlet: Provided, That, the board determines that the resolution of the controversy will continue for such duration that the opening of a state liquor store is necessary to meet reasonable consumer concerns of availability of liquor.


WVC 60 - 3 A- 3 A §60-3A-3a. Liquor sampling.

     (a) Notwithstanding any provision of this code to the contrary, a Class A retail licensee may, with the written approval of the commissioner, conduct a liquor sampling event on a designated sampling day.

     (b) At least five business days prior to the liquor sampling, the Class A retail licensee shall submit a written proposal to the commissioner requesting to hold a liquor sampling event, including:

     (1) The day of the event;

     (2) The location of the event;

     (3) The times for the event; and

     (4) The specific brand and flavor of the West Virginia product to be sampled.

     (c) Upon approval by the commissioner, a Class A retail licensee may serve a complimentary liquor sample of the approved brand and flavor of the West Virginia product that is purchased by

the Class A retail licensee from the commissioner.

     (d) The complimentary liquor samples on any sampling day shall not exceed:

     (1) One separate and individual sample serving per customer verified to be twenty-one years of age or older; and

     (2) One ounce in total volume.

     (e) Servers at the liquor sampling event shall:

     (1) Be employees of the Class A retail licensee;

     (2) Be at least twenty-one years of age or older; and

     (3) Have specific knowledge of the West Virginia product being sampled to convey to the customer.

     (f) All servers at the liquor sampling event shall verify the age of the customer sampling liquor by requiring and reviewing proper forms of identification. Servers at the liquor sampling event may not serve any person who is:

     (1) Under the age of twenty-one years;

     (2) Intoxicated.

     (g) A liquor sampling event shall:

     (1) Occur only inside the Class A retail licensee's licensed premises; and

     (2) Cease on or before 9:00 p.m. on any approved sampling day.

     (h) Any liquor bottle used for sampling must be from the inventory of the licensee, and clearly and conspicuously labeled "SAMPLE, NOT FOR RESALE". If the seal is broken on any liquor bottle or if any liquor bottle is opened, then that liquor bottle must be removed from the licensed premises immediately following the event.

     (i) Violations of this section are subject to the civil and criminal penalties set forth in sections twenty-four, twenty-five- a, twenty-six and twenty-seven of this article;

     (j) To implement the provisions of this section, the commissioner may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code or propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code.
WVC 60 - 3 A- 4 §60-3A-4. Definitions.

     (a) "Active retail license" means a current license for a retail outlet that has been open and in continuous operation for a period of not less than twelve months prior to July 1, 2010, or July 1 every ten years thereafter.

     (b) "Active retail licensee" means a person who holds an active retail license at the time of the effective date of the amendments to this section during the first extraordinary session of the Legislature in 2009 or that person's successor or any person who holds an active retail license when it expires at the end of a ten-year period.

     (c) "Applicant" means any person who elects to pay a purchase option for a Class A retail license, who bids for a retail license or who seeks the commissioner's approval to purchase or otherwise acquire a retail license from a retail licensee, in accordance with the provisions of this article.

     (d) "Application" means the form prescribed by the commissioner which must be filed with the commissioner by any person bidding for a retail license.

     (e) "Board" means the Retail Liquor Licensing Board created by this article.

     (f) "Class A retail license" means a retail license permitting the retail sale of liquor at a freestanding liquor retail outlet.

     (g) "Class B retail license" means a retail license permitting the sale of liquor at a mixed retail liquor outlet.

     (h) "Current retail licensee" means a person who holds a retail license at the time of the effective date of the amendments to this section during the first extraordinary session of the Legislature in 2009 or that person's successor or any person who holds a retail license when it expires at the end of a ten-year period.

     (i) "Designated areas" means one or more geographic areas within a market zone designated as such by the board.

     (j) "Executive officer" means the president or other principal officer, partner or member of an applicant or retail licensee, any vice president or other principal officer, partner or member of an applicant or retail licensee in charge of a principal business unit or division, or any other officer, partner or member of an applicant or retail licensee who performs a policy-making function.

     (k) "Freestanding liquor retail outlet" means a retail outlet that sells only liquor, beer, nonintoxicating beer and other alcohol-related products, including tobacco-related products.

     (l) "Liquor" means alcoholic liquor as defined in section five, article one of this chapter and also includes both wine and fortified wines as those terms are defined in section two, article eight of this chapter.

     (m) "Liquor sampling event" means an event approved by the commissioner, for a Class A retail licensee to hold a liquor sampling authorized pursuant to section three-a of this article.

     (n) "Market zone" means a geographic area designated as such by the board for the purpose of issuing retail licenses.

     (o) "Mixed retail liquor outlet" means a retail outlet that sells liquor, beer, nonintoxicating beer and other alcohol-related products, including tobacco-related products, in addition to convenience and other retail products.

     (p) "Person" means an individual, firm, corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.

     (q) "Retail license" means a license issued under the provisions of this article permitting the sale of liquor at retail.

     (r) "Retail licensee" means the holder of a retail license.

     (s) "Retail outlet" means a specific location where liquor may be lawfully sold by a retail licensee under the provisions of this article.

     (t) "Sampling day" means any days and hours of the week where retail licensees may sell liquor pursuant to section eighteen, article three-a, chapter sixty of this code for a Class A retail licensee to conduct a liquor sampling event.

     (u) "West Virginia product" means all liquor types and classes as approved by the commissioner and maintained on the ABCA retail liquor product list.
WVC 60 - 3 A- 5 §60-3A-5. Creation of retail liquor licensing board; members, terms, meetings and officers; general provisions.
(a) There is hereby continued the state retail liquor licensing board which shall be composed of five members, three of whom shall be appointed by the governor by and with the advice and consent of the Senate, one of whom shall be the secretary of tax and revenue, and one of whom shall be the commissioner. The secretary of tax and revenue and the commissioner shall serve as the chairman and secretary, respectively, of the board. No more than two of the three members appointed by the governor shall be of the same political party. No member of the board may hold a retail license or have any financial interest, directly or indirectly, in any retail licensee.

(b) The provisions of this subsection apply to the three members appointed by the governor. They shall be appointed for overlapping terms of three years each and until their respective successors have been appointed and have qualified. Members may be reappointed for any number of terms. Before entering upon the performance of his or her duties, each member shall take and subscribe to the oath required by Section 5, Article IV of the constitution of this state. Vacancies shall be filled by appointment by the governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the occurrence of the vacancy. Any member may be removed by the governor in case of incompetency, neglect of duty, gross immorality or malfeasance in office. Members shall receive compensation of one hundred dollars per day for each day actually engaged in the performance of their duties as board members, and in addition shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties. Appointments to fill vacancies made after the amendment to this section made in one thousand nine hundred ninety-nine shall be made to provide that after the next two appointments, and thereafter, there is a member from each of the congressional districts of this state as delineated in accordance with section three, article two, chapter one of this code.

(c) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman.

(d) Staff, office facilities and costs of operation of the board shall be provided by the commissioner.


WVC 60 - 3 A- 6 §60-3A-6. General powers and duties of board and commissioner.
(a) The board shall create, based on economic and demographic factors, market zones within the state for the issuance of Class A and Class B retail licenses.

(b) The commissioner shall:

(1) Prescribe application forms for persons desiring to acquire retail licenses and adopt an orderly procedure and timetable for investigating, processing and approving applications;

(2) Develop a form of retail license to be issued to each retail licensee under the provisions of this article;

(3) Disseminate to the public information relating to the issuance of retail licenses;

(4) Promulgate standards for advertising the sale, availability, price and selection of liquor;

(5) Set minimum standards for retail outlets regarding the amount and variety of liquor a licensee must offer for sale at each retail outlet; the size, space and design of each retail outlet; the amount of inventory and displayed inventory of liquor in each retail outlet; order quantities sufficient to qualify for delivery to each retail outlet; phone, computer and Internet requirements for each retail outlet; the verification of liquor orders; liquor delivery dates and routes for each retail outlet; and such other requirements the commissioner deems necessary;

(6) Set minimum standards for the display of inventory in retail outlets operating pursuant to a Class A retail license which shall include, without limitation, the requirement that a minimum square footage of displayed inventory available for retail purchase at the retail outlet be composed of liquor, beer and nonintoxicating beer products and that liquor, beer and nonintoxicating beer products available for sale are placed for sale throughout the entire retail area of the retail outlet including the retail floor space and shelving;

(7) Set minimum standards for the display of inventory in retail outlets operating pursuant to a Class B retail license which shall include, without limitation, the requirements that a minimum square footage of the displayed inventory available for purchase at the retail outlet be composed of liquor products; that liquor available for sale in the retail outlet is placed only in an area of the retail outlet that prominently displays signage identifying the area as a restricted liquor area and stating that no one under the age of twenty-one may purchase liquor; and that the area is separate from and not highly visible to persons outside of the restricted liquor area.

(8) Enforce the provisions of this article;

(9) Impose civil penalties upon retail licensees;

(10) Enter the retail outlet of any retail licensee at reasonable times for the purpose of inspecting the same, and determining the compliance of such retail licensee with the provisions of this article and any rules promulgated by the board or the commissioner pursuant to the provisions of this article; and

(11) Issue subpoenas and subpoenas duces tecum for the purpose of conducting hearings under the provisions of section twenty-six or section twenty-eight of this article, which subpoenas and subpoenas duces tecum shall be issued in the time, for the fees, and shall be enforced in the manner specified in section one, article five, chapter twenty-nine-a of this code with like effect as if such section was set forth in extenso herein.

(c) The board and the commissioner shall each:

(1) Engage accounting, legal and other necessary professional consultants to assist them in carrying out their respective duties under this article;

(2) Adopt, promulgate, amend or repeal such procedural, interpretive and legislative rules, consistent with the policy and objectives of this article, as they may deem necessary or desirable for the public interest in carrying out the provisions of this article. Such rules shall be adopted, amended and repealed in accordance with the provisions of chapter twenty-nine-a of this code; and

(3) Notwithstanding any other provision of this code to the contrary, proposed legislative rules for this article filed in the State Register by September 1, 2009, may be filed as emergency rules. Such emergency rules shall include the standards, criteria and formulae or methodology utilized by the board when establishing the minimum bid for each license pursuant to section ten-b of this article.


WVC 60 - 3 A- 7 §60-3A-7. Market zones; Class A and Class B retail licenses.
(a) The market zones established by the board for the retail sale of liquor within this state under the enactment of this section in 1990 may not be modified by the board unless authorized by the Legislature. For each market zone established by the board, the commissioner may issue one or more Class A retail licenses and one or more Class B retail licenses within the market zone: Provided, That the number of Class B retail licenses to be issued by the commissioner within a market zone shall not exceed one hundred fifty percent of the number of Class A retail outlets authorized for that market zone, except as otherwise authorized by subsection (d) of this section or section twenty-seven-a of this article: Provided, however, That, except as authorized by subsection (d) of this section or section twenty-seven-a of this article, in a market zone where the number of Class A retail licenses issued by the commissioner is an odd number, the number of Class B retail licenses which may be issued in that market zone shall be rounded up to the next highest whole number following that number which is equal to one hundred fifty percent of the number of Class A retail licenses issued by the commissioner: Provided, That for the ten-year period beginning July 1, 2010, the number of Class B retail licenses which are available for bid in a market zone shall not be less than the number of mixed retail outlets located in that market zone as of October 31, 2009.

(b) When authorizing Class B retail licenses for a market zone, the board may create one or more designated areas within the market zone and authorize one Class B retail license for each designated area. For each market zone, the commissioner may issue additional Class B retail licenses for retail outlets to be located outside any designated area, but the number of additional Class B retail licenses, when added to the total number of Class B retail licenses issued for all designated areas within the market zone, shall not exceed the maximum number of Class B retail licenses permitted under subsection (a) of this section for that market zone, except as authorized by subsection (d) of this section or section twenty-seven-a of this article.

(c) A person may hold one or more Class A retail licenses and one or more Class B retail licenses in a market zone or zones.

(d) Notwithstanding any provision of subsection (a) or (b) of this section, no later than thirty days prior to the receipt of the bids described in section ten-b of this article, the board may authorize the commissioner to issue additional Class B retail licenses in a market zone for the ten-year period which begins next following July 1, where the board determines that:

(1) Each retail outlet authorized to operate in the market zone has been open and in operation for not less than one year;

(2) Economic and demographic factors clearly demonstrate the need for an additional retail outlet or outlets within the market zone to meet consumer demand; and

(3) The issuance of an additional Class B license in the market zone will not significantly impair the efforts to procure the revenues described in subsection (b), section ten-b of this article.

(e) The board shall establish the minimum bid for any additional Class B retail licenses authorized under subsection (d) of this section.

(f) No person may hold a combination of Class A or Class B retail licenses that, in the aggregate, authorizes the operation of more than thirty percent of the total number of retail outlets authorized under the provisions of this article to operate in this state.


WVC 60 - 3 A- 8 §60-3A-8. Retail license application requirements; retail licensee qualifications.
(a) Prior to or simultaneously with the submission of a bid for a retail license or the payment of a purchase option for a Class A retail license, each applicant shall file an application with the commissioner, stating under oath, the following:

(1) If the applicant is an individual, his or her name and residence address;

(2) If the applicant is other than an individual, the name and business address of the applicant; the state of its incorporation or organization; the names and residence addresses of each executive officer and other principal officer, partner or member of the entity; a copy of the entity's charter or other agreement under which the entity operates; and the names and residence addresses of any person owning, directly or indirectly, at least twenty percent of the outstanding stock, partnership or other interests in the applicant;

(3) That the applicant has never been convicted in this state or any other state of any felony or other crime involving moral turpitude or convicted of any felony in this or any other state court or any federal court for a violation of any state or federal liquor law, and if the applicant is other than an individual, that none of its executive officers, other principal officers, partners or members, or any person owning, directly or indirectly, at least twenty percent of the outstanding stock, partnership or other interests in the applicant, has been convicted; and

(4) That the applicant is a United States citizen of good moral character and, if a naturalized citizen, when and where naturalized; and, if a corporation organized and authorized to do business under the laws of this state, when and where incorporated, with the name and address of each officer; that each officer is a citizen of the United States and a person of good moral character; and if a firm, association, partnership or limited partnership, that each member is a citizen of the United States and, if a naturalized citizen, when and where naturalized, each of whom must sign the application.

(b) An applicant shall provide the commissioner any additional information requested by the commissioner including, but not limited to, authorization to conduct a criminal background and credit records check.

(c) Whenever a change occurs in any information provided to the commissioner, the change shall immediately be reported to the commissioner in the same manner as originally provided.

(d) The commissioner shall disqualify each bid submitted by an applicant under section ten of this article and no applicant shall be issued or eligible to hold a retail license under this article, if:

(1) The applicant has been convicted in this state of any felony or other crime involving moral turpitude or convicted of any felony in this or any other state court or any federal court for a violation of any state or federal liquor law; or

(2) Any executive officer or other principal officer, partner or member of the applicant, or any person owning, directly or indirectly, at least twenty percent of the outstanding stock, partnership, or other interests in the applicant, has been convicted in this state of any felony or other crime involving moral turpitude or convicted of any felony in this or any other state court or any federal court for a violation of any state or federal liquor law.

(e) The commissioner shall not issue a retail license to an applicant which does not hold a license issued pursuant to federal law to sell liquor at wholesale.


WVC 60-3A-9 §60-3A-9. Investigation of applicants for retail license; notification to applicants approving or denying application; general provisions relating to licensing.
(a) Upon receipt of an application for a retail license and such supplemental information as the commissioner may require, the commissioner may conduct such investigation of an applicant as deemed necessary or desirable.

(b) Upon the completion of any investigation of an applicant, the commissioner shall inform such applicant in writing whether the application has been approved or denied, and shall post a copy of the decision in the commissioner's office.

(c) When an application is denied, the commissioner shall provide the applicant the reasons for the denial, including specific findings of fact, and the applicant shall be entitled to a hearing before the commissioner if a hearing is requested within five days of the decision. Any such hearing shall be held as specified in section twenty-eight of this article, but the decision after hearing shall, notwithstanding the provisions of section twenty-eight, be final and binding and not subject to judicial review.

(d) An applicant shall provide all information required by this article and satisfy all requests for information pertaining to qualification and in the form specified by the commissioner. By filing an application, an applicant shall waive liability for any damages resulting from any disclosure or publication in any manner of any material or information acquired during inquiries, investigations or hearings.


WVC 60 - 3 A- 10 §60-3A-10. Bidding procedure.
(a) Except as provided in section ten-b of this article, bids for licenses shall be governed by the provisions of this section.

(b) The issuance of retail licenses shall be based on sealed competitive bids in accordance with the provisions of this section. Bids for the issuance of retail licenses shall be obtained by public notice published as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be each market zone within which a retail outlet shall be located. The second publication of the notice shall appear more than thirty days next preceding the final day for submitting bids.

(c) Each bid shall indicate the market zone for which the retail license is sought, whether the bid is for a Class A retail license or Class B retail license, and, if the board has created one or more designated areas for the market zone, whether the bid is for a Class A or Class B retail license to be issued for any designated area. No bid shall be altered or withdrawn after the appointed hour for the opening of the bids. Subject to the provisions of section ten-b of this article, each retail license shall be awarded to the highest bidder. No bid shall be considered unless the bond required under section eleven of this article is submitted to the commissioner. All bids for a retail license may be rejected by the board if the board determines that the highest bid is inadequate, in which event the commissioner shall begin anew the bidding process for that retail license.

(d) Each person desiring to submit a bid shall file the bid with the commissioner prior to the specified date and hour for the bid openings. The failure to deliver or the nonreceipt of a bid prior to the appointed date and hour constitutes sufficient reason for the rejection of a bid. After the award of the retail license, the commissioner shall indicate upon the successful bid that it was the successful bid. Thereafter, a copy of the bid and the bidder's application shall be maintained as a public record, shall be open to public inspection in the commissioner's office and shall not be destroyed without the written consent of the Legislative Auditor.

(e) Prior to the issuance of the retail license to the successful bidder, the bid price and the annual retail license fee, as specified in section twelve of this article, shall be paid to the commissioner by money order, certified check or cashier's check. All retail licenses shall be signed by the commissioner in the name of the state.

(f) If the successful bidder fails to pay to the commissioner the bid price and the annual retail license fee, at the time specified by the commissioner, the bond provided in section eleven of this article shall be forfeited and the bidder shall not be issued the retail license. The commissioner shall then issue the retail license to the next highest bidder for the retail license or reject all bids and start anew the bidding procedure for the retail license.


WVC 60 - 3 A- 10 A §60-3A-10a. Preference for resident bidders.
In determining the highest bidder for purposes of section ten of this article, the board shall afford a five percent preference for West Virginia resident bidders, which shall be computed by adding five percent of the bid price to the bid price submitted by each resident bidder. For purposes of this section a bidder shall be considered to be a West Virginia resident if the bidder: (1) Has resided in this state for at least four years immediately prior to the date on which the bid is opened; or, if the bidder is an applicant other than an individual, has had its headquarters or principal place of business in this state for at least four years immediately prior to that date; and (2) meets the requirements set forth in section forty-four, article three, chapter five-a of this code relating to a residency of vendors, except for the requirement of having paid business and occupation taxes.


WVC 60 - 3 A- 10 B §60-3A-10b. Bidding procedure for licenses issued for the ten-year period beginning July 1, 2010; purchase options for bids beginning July 1, 2010; and licenses issued for each ten-year period thereafter.
(a) The issuance of retail licenses for the ten-year period beginning July 1, 2010, and for each ten-year period thereafter, shall be based upon sealed competitive bid in accordance with the provisions of section ten of this article except as provided in this section.

(b) Prior to accepting bids for retail licenses to be issued for the ten-year period beginning July 1, 2010, the board shall determine the minimum bid for each license based upon a review of inflation data, demographic data, the sales at each retail outlet permitted to operate under the license and such other factors as the board may determine to generate the revenues from liquor license renewal projected by the Governor's official revenue estimates for fiscal year 2009-2010 as presented to the regular session of the Legislature in 2009.

(c) Prior to accepting bids for retail licenses to be issued for the ten-year periods beginning July 1, 2010, and July 1 every ten years thereafter, the board shall determine the minimum bid for each retail license based upon a review of the sales at each retail outlet permitted to operate under the retail license and such other factors as the board may determine to generate the revenues from retail license renewal projected by the Governor's official revenue estimates for the fiscal year preceding the expiration of the retail licenses.

(d)(1) Notwithstanding any provision of this article to the contrary, prior to accepting bids for retail licenses to be issued for the ten-year period beginning July 1, 2010, and every ten-year period thereafter, each active retail licensee operating or seeking to operate a freestanding liquor retail outlet shall be eligible to purchase a Class A retail license or licenses as provided in this subsection.

(2) At least sixty days prior to accepting bids for retail licenses to be issued for the ten-year period beginning July 1, 2010, and July 1 every ten years thereafter, the board shall provide notice to each eligible retail licensee of his or her option to purchase a Class A retail license or licenses as provided in this subsection. The board shall include with this notice an explanation of the financing option provided in section ten-d of this article and a financing application form prepared by the commissioner.

(3) An eligible retail licensee may elect to pay a purchase option or options for each retail outlet operating under an active retail license currently held by the licensee. A retail licensee may only exercise a purchase option for the lesser of four Class A retail licenses or the number of active retail licenses currently held by the licensee.

(4) Each eligible retail licensee who elects to pay a purchase option shall, within thirty days prior to the acceptance of bids for the ten-year period beginning July 1, 2010, and July 1 every ten years thereafter, pay to the commissioner an amount equal to ten percent over and above the minimum bid as determined by the board for each Class A retail license the retail licensee wishes to purchase or, if the retail licensee elects to take the financing option provided in section ten-d of this article, a down payment, the amount of which shall be calculated in accordance with the provisions of that section. A retail licensee shall be awarded a Class A retail license or licenses upon the commissioner's receipt of his or her payment or down payment: Provided, That the commissioner determines that the retail licensee is in good standing with the state and meets all other requirements imposed by the provisions of this article for the issuance of a Class A retail license.

(5) A Class A retail license purchased in accordance with this subsection shall be issued for the ten-year period beginning July 1, 2010, or July 1 every ten years thereafter, and shall expire on June 30, 2020, or on June 30 every ten years thereafter.

(6) Nothing in this subsection may be interpreted as affecting the ability of a retail licensee to bid for a retail license or licenses as otherwise provided in this article: Provided, That the retail licensee meets all other requirements imposed by the provisions of this article for the submission of bids.

(e) All bids for a retail license for the ten-year period beginning July 1, 2010, or for any ten-year period thereafter may be rejected by the board if the board determines that the highest bid fails to meet the minimum bid. The board may also reject any or all bids for a market zone where, in the aggregate, the bids for all of the retail licenses in the market zone fail to meet the minimum aggregate bid for that market zone. Where the board determines the highest bid meets or exceeds the minimum bid, the board shall determine whether, at the time of the bid, the same retail license was held for the period ending June 30, 2010, or for any ten-year period thereafter, on June 30 preceding the expiration of the license. If the current retail licensee holding the same retail license at the time of submission of the bid for the period ending June 30, 2010, or for any ten-year period thereafter, on June 30 preceding the expiration of the retail license, submitted a bid that was not less than the minimum bid and is, after considering any preference applicable under the provisions of section ten-a of this article, an unsuccessful bidder for the retail license for the period beginning July 1, 2010, or for any ten-year period thereafter, on July 1 when the retail license expires, the commissioner shall notify the person that upon paying the amount of the highest bid, subject to the provisions of subsection (f) of this section, and upon compliance with all other requirements imposed by the provisions of this article for the issuance of the license, the retail license for the ten-year period beginning July 1, 2010, or for any ten-year period thereafter, shall be issued to the current retail licensee. If, within the time determined by the commissioner, the current retail licensee pays the amount to the commissioner and complies with all other requirements imposed by the provisions of this article for the issuance of the retail license, the retail license for the ten-year period beginning July 1, 2010, or for any ten-year period thereafter, shall be issued to the current retail licensee.

(f) The board shall, in determining the amount a current retail licensee who is an unsuccessful bidder shall pay as described in subsection (e) of this section, afford the unsuccessful bidder a preference. If the unsuccessful bidder is a West Virginia resident as defined in section ten-a of this article, the board shall afford the unsuccessful bidder a five percent preference in addition to the five percent preference afforded under section ten-a of this article. If the unsuccessful bidder is not a West Virginia resident, the board shall afford the unsuccessful bidder a five percent preference. The preference shall be computed by subtracting the preference percentage of the highest bid price from the highest bid price: Provided, That under no circumstances may the preference bring the price of the bid below the minimum bid established by the board: Provided, however, That a current retail licensee who is not operating any of the retail outlets for which he or she is authorized under the license is not eligible for the preference provided for under this section.

(g) In the event all bids submitted for a retail license fail to meet the minimum bid amount for the license as determined by the board, the board may offer the license for bid again after it determines a new minimum bid amount for the retail license.


WVC 60 - 3 A- 10 C §60-3A-10c. Criminal penalties for unlawful inducement.
(a) Any person who gives another person any thing of value to induce the other to refrain from bidding for a retail license is guilty of a misdemeanor and, upon conviction, shall be fined not more than ten thousand dollars, and, in addition, shall be subject to a civil penalty payable to the commissioner of not more than one million dollars.

(b) Any person who gives a person any thing of value to induce the other to refrain from operating an outlet authorized under a retail license is guilty of a misdemeanor and, upon conviction, shall be fined not more than ten thousand dollars, and, in addition, shall be subject to a civil penalty payable to the commissioner of not more than one million dollars.


WVC 60 - 3 A- 10 D §60-3A-10d. Financing option for retail licensees purchasing Class A retail licenses.
(a) The commissioner shall offer financing to each retail licensee who elects to pay the purchase option for a Class A retail license or licenses as provided in section ten-b of this article: Provided, That the retail licensee is approved by the commissioner for financing and otherwise complies with the requirements of this section: Provided, however, That the retail licensee agrees to enter a financing agreement with the commissioner as provided in subsection (d) of this section.

(b) The commissioner shall prepare an application form for retail licensees who desire to elect the financing option provided in this section. The commissioner shall make the form available to retail licensees in paper or electronic format at least sixty days prior to the acceptance of bids for the ten-year period beginning July 1, 2010, and July 1 every ten years thereafter. At a minimum, the application form shall require the following information:

(1) Certification that the applicant elects to pay the purchase option for a Class A retail license or licenses as provided in section ten-b of this article;

(2) Certification that the applicant is the current holder and operator of an active retail license issued by the board;

(3) A description of the retail license or licenses currently held by the applicant;

(4) Any information the commissioner requires to evaluate the creditworthiness of the applicant, including without limitation the applicant's authorization to perform a criminal background and credit check; and

(5) Any additional information the commissioner requires to effectuate the purposes of this section.

(c) For an applicant to be considered for financing, the application required under subsection (b) of this section must be submitted to the commissioner with a down payment of fifty percent of the total amount due under the financing agreement provided in subsection (d) of this section no later than May 1, 2010, or, for subsequent retail license periods, May 1 every ten years thereafter. The commissioner shall make a determination as to the eligibility of an applicant for financing and the issuance of a Class A retail license within fifteen days of his or her receipt of the application. If the commissioner determines that an applicant is ineligible for financing, is not in good standing with the state or does not otherwise meet the requirements of this article for the issuance of a Class A retail license, the commissioner shall notify the applicant that his or her application for financing is denied and shall refund in full any moneys paid to the commissioner as a down payment. If the applicant's application for financing is denied for any reason other than the fact that the applicant is not in good standing with the state or is not otherwise eligible for the issuance of a Class A retail license, the commissioner shall provide the applicant the option of paying the full amount of a purchase option for a Class A retail license or licenses as provided in subsection (d), section ten-b of this article. At the request of the applicant, the commissioner may credit any moneys received as a down payment towards payment of the full amount of a purchase option for a Class A retail license or licenses.

(d) The commissioner is hereby authorized to enter into a financing agreement with each retail licensee meeting the requirements of this section. The financing agreement shall contain such terms and conditions as prescribed by the commissioner, but at a minimum shall contain the following:

(1) The total amount due, including the required down payment, which shall equal ten percent over and above the minimum bid as determined by the board for each Class A retail license the retail licensee wishes to purchase;

(2) The interest to be charged on the total amount due at a rate of the adjusted prime lending rate minus one hundred basis points. The interest rate shall be set on the date the financing is approved by the commissioner;

(3) The total amount due, not including the required down payment, to be payable to the commissioner in monthly or quarterly installments over a period of sixty months. If a retail licensee elects to pay in monthly installments, his or her first payment is due on August 1 and successive payments are due on the first day of each month thereafter until the debt is retired. If a retail licensee elects to pay in quarterly installments, his or her first payment is due on October 1 and successive payments are due on the first day of every third month thereafter until the debt is retired;

(4) The failure of a retail licensee to make a payment in accordance with the terms of the financing agreement shall result in the entire balance of the amount due becoming immediately due and payable to the commissioner and shall result in the forfeiture of the down payment and any moneys paid to the commissioner in accordance with this section; and

(5) The failure of a retail licensee to make a payment in accordance with the terms of the financing agreement within thirty days of the day on which the payment was due shall result in the immediate revocation of the Class A retail license held by the licensee and the commissioner shall reissue the license by sealed competitive bid in accordance with section ten of this article. A retail licensee whose retail license is revoked for failure to make payments as provided in the financing agreement is deemed an unsuitable retail licensee and shall be permanently prohibited from bidding on a retail license under this article.


WVC 60 - 3 A- 11 §60-3A-11. Bonding requirements.
Each applicant submitting a bid under section ten of this article or electing to pay a purchase option for a Class A license or licenses as provided in section ten-b of this article shall furnish to the commissioner a bond at the time of bidding, which bond shall guarantee the payment of twenty-five percent of the price bid or paid for the retail license. The bond required by this section shall be furnished in cash or negotiable securities or shall be a surety bond issued by a surety company authorized to do business with the state or an irrevocable letter of credit issued by a financial institution acceptable to the commissioner. If furnished in cash or negotiable securities, the principal shall be deposited without restriction in the State Treasurer's office and credited to the commissioner, but any income shall inure to the benefit of the applicant. For applicants bidding on a retail license, the bond shall be returned to an applicant following the bidding if such applicant is not the successful bidder for the retail license, and, if an applicant is the successful bidder, the bond shall be released after issuance of the retail license.


WVC 60 - 3 A- 12 §60-3A-12. Annual retail license fee; expiration and renewal of retail licenses.
(a) The annual retail license period is from July 1 to June 30 of the following year. The annual retail license fee for a Class A or Class B retail license is $2,000. The annual retail license fee for the initial year of issuance shall be prorated based on the number of days remaining between the date of issuance and the following June 30.

(b) All retail licenses expire on June 30 of each year and may be renewed only upon the submission to the commissioner of the same information required for the issuance of the license and any additional information requested by the commissioner on the forms and by the date prescribed by the commissioner, together with the payment to the commissioner of the applicable annual retail license fee required under this section.

(c) No person may sell liquor at any retail outlet if the retail license applicable to the outlet has been suspended or revoked, or has expired.

(d) All retail licenses issued or renewed under the provisions of this article for the period ending June 30, 2010, or on June 30 for any ten-year period thereafter, expire and are of no further force or effect as of July 1, 2010, or as of July 1 every ten years thereafter.

(e) Notwithstanding any provision of section eighteen, article four of this chapter to the contrary, a municipality may invoke the authority granted by section four, article thirteen, chapter eight of this code to require an annual license from each retail licensee and require payment for the license in amounts not to exceed the amounts provided in subsection (a) of this section.


WVC 60-3A-13 §60-3A-13. Annual reports.
On or before the thirty-first day of December, one thousand nine hundred ninety, and each successive year thereafter, the commissioner shall submit to the joint committee on government and finance an annual report focused upon subjects of interest concerning retail alcohol sales and of the implementation of this article, including, but not limited to, the total revenue earned by the issuance of retail licenses, the location of each retail outlet and the names of all applicants for retail franchises.


WVC 60-3A-14 §60-3A-14. Sale, assignment or transfer of retail license.
(a) No person may purchase or otherwise acquire a retail license unless the commissioner has first approved of such person's qualifications to hold a retail license, which qualifications shall be the same as those required under section eight of this article.

(b) No person may sell, assign or otherwise transfer a retail license without the prior written approval of the commissioner. For purposes of this section, the merger of a retail licensee or the sale of more than fifty percent of the outstanding stock of or partnership interests in the retail licensee shall be deemed to be a sale, assignment or transfer of a retail license under this section.


WVC 60-3A-15 §60-3A-15. Surrender of retail license.
Any retail licensee may surrender a retail license to the commissioner at any time. The commissioner shall then proceed to reissue the retail license by following the bidding and other procedures set forth herein for the initial issuance of a retail license.


WVC 60-3A-16 §60-3A-16. Restriction on location of retail outlets.
No retail outlet may be located within the immediate vicinity of a school or church: Provided, That the provisions of this section shall not apply to the location of a retail licensee who, on the date of the passage of this act, holds a license for the retail sale of wine, fortified wine or nonintoxicating beer at such location.


WVC 60 - 3 A- 17 §60-3A-17. Wholesale prices set by commissioner; retail licensees to purchase liquor from state; transportation and storage; method of payment.
(a) The commissioner shall fix wholesale prices for the sale of liquor, other than wine, to retail licensees. The commissioner shall sell liquor, other than wine, to retail licensees according to a uniform pricing schedule. The commissioner shall obtain if possible, upon request, any liquor requested by a retail licensee.

(b) Wholesale prices shall be established in order to yield a net profit for the general fund of not less than six million five hundred thousand dollars annually on an annual volume of business equal to the average for the past three years. The net revenue derived from the sale of alcoholic liquors shall be deposited into the general revenue fund in the manner provided in section seventeen, article three of this chapter.

(c) The commissioner shall specify the maximum wholesale markup percentage which may be applied to the prices paid by the commissioner for all liquor, other than wine, in order to determine the prices at which all liquor, other than wine, will be sold to retail licensees. A retail licensee shall purchase all liquor, other than wine, for resale in this state only from the commissioner, and the provisions of sections twelve and thirteen, article six of this chapter shall not apply to the transportation of the liquor: Provided, That a retail licensee shall purchase wine from a wine distributor who is duly licensed under article eight of this chapter. All liquor, other than wine, purchased by retail licensees shall be stored in the state at the retail outlet or outlets operated by the retail licensee: Provided, however, That the commissioner, in his or her discretion, may upon written request permit a retail licensee to store liquor at a site other than the retail outlet or outlets.

(d) The sale of liquor by the commissioner to retail licensees shall be paid by electronic funds transfer which shall be initiated by the commissioner on the business day following the retail licensees order or by money order, certified check or cashier's check which shall be received by the commissioner at least twenty-four hours prior to the shipping of the alcoholic liquors: Provided, That if a retail licensee posts with the commissioner an irrevocable letter of credit or bond with surety acceptable to the commissioner from a financial institution acceptable to the commissioner guaranteeing payment of checks, then the commissioner may accept the retail licensee's checks in an amount up to the amount of the letter of credit.

(e)(1) A retail licensee may not sell liquor to persons licensed under the provisions of article seven of this chapter at less than one hundred ten percent of the retail licensee's cost as defined in section six, article eleven-a, chapter forty-seven of this code.

(2) A retail licensee may not sell liquor to the general public at less than one hundred ten percent of the retail licensee's cost as defined in section six, article eleven-a, chapter forty-seven of this code.


WVC 60 - 3 A- 18 §60-3A-18. Days and hours retail licensees may sell liquor.
     Retail licensees may not sell liquor on Sundays and Christmas day, or between the hours of twelve midnight and eight o'clock a.m., except that wine and fortified wines may be sold on those days and at such times as authorized in section thirty-four, article eight of this chapter.
WVC 60-3A-19 §60-3A-19. Limitation on amount to be sold.
Not more than ten gallons of liquor may be sold by a retail licensee to a person at one time without the approval of the commissioner or his or her representative, but a sale in excess of ten gallons may be made to a religious organization purchasing wine for sacramental purposes: Provided, That this section does not apply to purchases by private clubs as defined in article seven of this chapter.


WVC 60-3A-20 §60-3A-20. Nonapplication of article to retail sales of nonintoxicating beer.
This article does not apply to retail sales of nonintoxicating beer and a retail licensee may sell nonintoxicating beer for consumption off the premises of any retail outlet operated by such retail licensee if such retail licensee has obtained the appropriate license to sell the same under article sixteen, chapter eleven of this code.


WVC 60-3A-21 §60-3A-21. Tax on purchases of liquor.
(a) For the purpose of providing financial assistance to and for the use and benefit of the various counties and municipalities of this state, there is hereby levied tax upon all purchases of liquor from retail licensees. The tax shall be five percent of the purchase price and shall be added to and collected with the purchase price by the retail licensee.

(b) All such tax collected within the corporate limits of a municipality in this state shall be remitted to such municipality; all such tax collected outside of but within one mile of the corporate limits of any municipality shall be remitted to such municipality; and all other tax so collected shall be remitted to the county wherein collected: Provided, That where the corporate limits of more than one municipality be within one mile of the place of collection of such tax, all such tax collected shall be divided equally among each of such municipalities: Provided, however, That such mile is measured by the most direct hard surface road or access way usually and customarily used as ingress and egress to the place of tax collection.

(c) The tax commissioner, by appropriate rule promulgated pursuant to chapter twenty-nine-a of this code, shall provide for the collection of such tax upon all purchases from retail licensees, separation or proration of the same and distribution thereof to the respective counties and municipalities for which the same shall be collected. Such rule shall provide that all such taxes shall be deposited with the state treasurer and distributed quarterly by the state treasurer upon warrants of the auditor payable to the counties and municipalities.


WVC 60-3A-22 §60-3A-22. Requirement for posting informational sign.
Each retail licensee shall post in an open and prominent place within each retail outlet operated by such person a blood-alcohol chart in the form prescribed by section twenty-four, article six of this chapter.


WVC 60-3A-23 §60-3A-23. Records required of retail licensees; inspection of records.
The commissioner shall by rule prescribe the records to be kept by retail licensees relating to the purchase and sale of liquor. Such records shall be open at all reasonable times to inspection by the commissioner.


WVC 60 - 3 A- 24 §60-3A-24. Unlawful acts by persons.
(a) (1) Any person who is under the age of twenty-one years who purchases, consumes, sells, serves or possesses alcoholic liquor is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed $500 or shall be confined in jail, or, in the case of a juvenile, a detention center, for a period not to exceed seventy-two hours, or both fined and imprisoned or, in lieu of such fine and incarceration, may, for the first offense, be placed on probation for a period not to exceed one year.

(2) Nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be deemed to prohibit any person who is at least eighteen years of age from serving in the lawful employment of a licensee which includes the sale and serving of alcoholic liquor.

(3) Nothing in this subsection shall prohibit a person who is at least eighteen years of age from purchasing or possessing alcoholic liquor when he or she is acting upon the request of or under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia Alcohol Beverage Control Administration while the agency is conducting an investigation or other activity relating to the enforcement of the alcohol beverage control statutes and the rules and regulations of the commissioner.

(b) Any person under the age of twenty-one years who, for the purpose of purchasing liquor from a retail licensee, misrepresents his or her age or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own or who illegally attempts to purchase liquor from a retail licensee is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed $100 or confined in jail, or, in the case of a juvenile, a detention facility, for a period not to exceed seventy-two hours, or both fined and confined or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year. Any person convicted under this section may be sentenced pursuant to the provisions of section one-a, article eleven-a, chapter sixty-two of this code.

(c) Any person who knowingly buys for, gives to or furnishes to anyone under the age of twenty-one to whom he or she is not related by blood or marriage any liquor from whatever source is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed $250 dollars or confined in jail for a period not to exceed ten days, or both fined and confined.

(d) No person while on the premises of a retail outlet may consume liquor or break the seal on any package or bottle of liquor. Any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one hundred dollars or confined in jail for a period not to exceed ten days, or both fined and confined.


WVC 60-3A-25 §60-3A-25. Certain acts of retail licensees prohibited; criminal penalties.
(a) It is unlawful for any retail licensee, or agent or employee thereof, on such retail licensee's premises to:

(1) Sell or offer for sale any liquor other than from the original package or container;

(2) Sell, give away, or permit the sale of, gift of, or the procurement of, any liquor, for or to any person under twenty-one years of age;

(3) Sell, give away, or permit the sale of, gift of, or the procurement of, any liquor, for or to any person visibly intoxicated;

(4) Sell or offer for sale any liquor on any Sunday or other than during the hours permitted for the sale of liquor by retail licensees as provided under this article;

(5) Permit the consumption by any person of any liquor;

(6) With the intent to defraud, alter, change or misrepresent the quality, quantity or brand name of any liquor;

(7) Permit any person under eighteen years of age to sell, furnish or give liquor to any other person;

(8) Purchase or otherwise obtain liquor in any manner or from any source other than that specifically authorized in this article; or

(9) Permit any person to break the seal on any package or bottle of liquor.

(b) Any person who violates any provision of this article, except section twenty-four of this article, including, but not limited to, any provision of this section, or any rule promulgated by the board or the commissioner, or who makes any false statement concerning any material fact, or who omits any material fact with intent to deceive, in submitting an application for a retail license or for a renewal of a retail license or in any hearing concerning the suspension or revocation thereof, or who commits any of the acts declared in this article to be unlawful, is guilty of a misdemeanor, and shall, upon conviction thereof, for each offense be fined not less than one hundred or more than five thousand dollars, or imprisoned in the county jail for not less than thirty days nor more than one year, or both fined and imprisoned. Magistrates have concurrent jurisdiction with the circuit courts for offenses under this article.

(c) Nothing in this article, or any rule of the board or commissioner, prevents or prohibits any retail licensee from employing any person who is at least eighteen years of age to serve in any retail licensee's lawful employment at any retail outlet operated by such retail licensee, or from having such person sell or deliver liquor under the provisions of this article. With the prior approval of the commissioner, a retail licensee may employ persons at any retail outlet operated by such retail licensee who are less than eighteen years of age but at least sixteen years of age, but such persons' duties shall not include the sale or delivery of liquor: Provided, That the authorization to employ such persons under the age of eighteen years shall be clearly indicated on the retail license issued to any such retail licensee.


WVC 60 - 3 A- 25 A §60-3A-25a. Mandatory verification of age of persons purchasing alcohol.
(a) A licensee who:

(1) Has installed a transaction scan device in its licensed premises; and

(2) Can demonstrate that it requires each employee, servant, or agent to verify the age of any individual to whom liquor is sold, furnished, or given away by the use of the transaction device may not be subject to: (A) Any criminal penalties whatsoever; (B) any administrative penalties from the commissioner; or (C) any civil liability whatsoever for the improper sale, furnishing or giving away of liquor to an individual who is less than twenty-one years of age by one of his or her employees, servants or agents. Any agent, servant or employee who has improperly sold, furnished or given away liquor to an individual who is less than twenty-one years of age is subject to the criminal penalties of subsection (b) of this section. Any agent, servant, or employee, who has improperly sold, furnished or given away liquor to an individual less than twenty-one years of age, is subject to termination from employment, and the employer shall have no civil liability for the termination.

(b) For purposes of this subsection, a licensee can demonstrate that it requires each employee, servant or agent to verify the age of any individual to whom liquor is sold by providing evidence:

(1) That it has developed a written policy which requires each employee, servant or agent to verify the age of each individual to whom liquor will be sold, furnished or given away;

(2) That it has communicated this policy to each employee, servant or agent; and

(3) That it monitors the actions of its employees, servants or agents regarding the sale, furnishing or giving away of liquor and that it has taken corrective action for any discovered noncompliance with this policy.

(c) "Transaction scan" means the process by which a person checks, by means of a transaction scan device, the age and identity of the cardholder, and "transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information enclosed on the magnetic strip or bar code of a driver's license or other governmental identity card.


WVC 60-3A-26 §60-3A-26. Civil penalties.
(a) Any retail licensee who violates any provision of this article or any rule promulgated by the board or commissioner, may be assessed a civil penalty by the commissioner which penalty shall not be more than one thousand dollars for each such violation. Each violation shall constitute a separate offense. In determining the amount of the penalty, the commissioner shall consider the retail licensee's history of previous violations, the appropriateness of such penalty to the size of the business of the retail licensee charged, the gravity of the violation and the demonstrated good faith of the retail licensee charged in attempting to achieve rapid compliance after notification of a violation.

(b) A civil penalty shall be assessed by the commissioner only after the commissioner shall have given at least ten days' notice to the retail licensee. Notice shall be in writing, shall state the reason for the proposed civil penalty and the amount thereof, and shall designate a time and place for a hearing where the retail licensee may show cause why the civil penalty should not be imposed. Notice shall be sent by certified mail to the address for which the retail license was issued. The retail licensee may, at the time designated for the hearing, produce evidence in his or her behalf and be represented by counsel.

(c) The provisions of subsections (b), (c), (d) and (e) of section twenty-eight of this article are applicable to any such hearing and with respect to judicial review thereafter.


WVC 60-3A-27 §60-3A-27. Suspension or revocation of retail license.
(a) The commissioner may, upon his or her own motion, or upon the sworn complaint of any person, conduct an investigation to determine if any provision of this article or of any rule promulgated by the board or commissioner under authority of this article has been violated by any retail licensee. The commissioner may suspend or revoke a retail license if the retail licensee or any employee thereof acting in the scope of his or her employment has violated any such provision, and may suspend a retail license without hearing for a period not to exceed twenty days if he or she finds probable cause to believe that the retail licensee or any employee thereof acting in the scope of his or her employment has willfully violated any such provision.

(b) The commissioner may revoke a retail license for any reason which would constitute grounds for the denial of an application filed pursuant to section eight of this article.


WVC 60 - 3 A- 27 A §60-3A-27a. Revocation of license or reduction of authority to operate retail outlet for failure to operate retail outlet.
(a)(1) The commissioner may revoke a Class A retail license if the licensee fails to operate at least one of the retail outlets authorized under the license. The commissioner may revoke a Class B retail license if the licensee fails to operate the retail outlet authorized under the license.

(2) The commissioner may not accept the bid of a person who has had a license revoked pursuant to subdivision (1) of this subsection when the license is offered for bid following the revocation.

(b)(1) Where a person operates at least one of the retail outlets authorized under a Class A license, but fails to operate the full number of retail outlets authorized under the license, the commissioner may reduce the number of retail outlets the person is authorized to operate under the license by the number that is not being operated.

(2) Notwithstanding any provision of section seven of this article to the contrary, the board may authorize the commissioner to issue, subject to the bid requirements of section ten of this article, a Class B license in the stead of each retail outlet for which authority to operate under a Class A license has been reduced under subdivision (1) of this subsection.

(3) The commissioner may not accept the bid of a person who has had the number of retail outlets authorized under a license reduced pursuant to subdivision (1) of this subsection for any Class B license issued in the stead of a retail outlet previously authorized under the reduced license.

(c) The board shall propose legislative rules for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code prescribing the criteria under which the commissioner is to determine whether a retail licensee has failed to operate an outlet.

(d) A revocation or reduction under this section is subject to the provisions for notice, hearing and review prescribed in section twenty-eight of this article.


WVC 60 - 3 A- 28 §60-3A-28. Notice of and hearing on revocation; right of appeal; appeal procedures.

     (a) Before a retail license issued under the authority of this article is suspended for a period of more than twenty days, or revoked, the commissioner shall give at least ten days' notice to the retail licensee. Notice shall be in writing, shall state the reason for suspension or revocation, and shall designate a time and place for a hearing where the retail licensee may show cause why the retail license should not be suspended or revoked. Notice shall be sent by certified mail to the address for which the retail license was issued. The retail licensee may, at the time designated for the hearing, produce evidence in his or her behalf and be represented by counsel.

     (b) The hearing and the administrative procedures prior to, during and following the hearing are governed by and shall be conducted 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 fully set forth in this section.

     (c) Notwithstanding the provisions of subsection (b), section four, article five, chapter twenty-nine-a of this code, any person adversely affected by a final order entered following the hearing has the right of judicial review by the circuit court of Kanawha County or the circuit court in the county where the proposed or licensed premises is located and will or does conduct sales: Provided, That in all other respects, such review shall be conducted in the manner provided in chapter twenty-nine-a of this code. The petition for the review must be filed with the circuit court within thirty days following entry of the final order issued by the commissioner. An applicant or licensee obtaining the review is required to pay the costs and fees incident to transcribing, certifying and transmitting the records pertaining to the matter to circuit court.

     (d) The judgment of the circuit court reviewing the order of the commissioner is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

     (e) Legal counsel and services for the commissioner in all the proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants and in any proceedings in any circuit court by the prosecuting attorney of that county as well, all without additional compensation.

     (f) Upon final revocation, the commissioner shall proceed to reissue the retail license by following the procedures set forth herein for the initial issuance of a retail license.
WVC 60 - 3 A- 29 §60-3A-29. Disposition of inventory upon revocation or surrender of retail license.
In the event of the revocation, expiration or surrender of any retail license in accordance with the provisions of this article, the commissioner may, in his or her discretion, purchase, or authorize another person to purchase, all or any portion of the liquor inventory of the retail licensee. If the commissioner elects to purchase, or authorizes another person to purchase, the inventory or any portion of the inventory, the retail licensee shall sell the inventory as directed by, and upon terms determined by, the commissioner.


WVC 60 - 3 A- 30 §60-3A-30.
Repealed.

Acts, 1999 Reg. Sess., Ch. 5.


WVC 60-3A-31 §60-3A-31. Rules of construction; severability.
(a) Nothing contained in this article shall be construed to modify the provisions of article five of this chapter relating to local option elections, except that the references to sales of liquor by the commissioner shall be deemed to refer to sales of liquor by retail licensees.

(b) If any section, subsection, subdivision, provision, clause or phrase of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, subdivisions, provisions, clauses or phrases or applications of the article, and to this end each and every section, subsection, subdivision, provision, clause and phrase of this article is declared to be severable. The Legislature hereby declares that it would have enacted the remaining sections, subsections, provisions, clauses and phrases of this article even if it had known that any sections, subsections, subdivisions, provisions, clauses and phrases thereof would be declared to be unconstitutional or invalid, and that it would have enacted this article even if it had known that the application thereof to any person or circumstance would be held to be unconstitutional or invalid.

(c) The provisions of subsection (b) of this section shall be fully applicable to all future amendments or additions to this article, with like effect as if the provisions of said subsection (b) were set forth in extenso in every such amendment or addition and were reenacted as a part thereof.

(d) In the event of any conflict between any provision of this article and any other provision of this code, any such other provision shall be construed and applied so as to enable the board and commissioner to implement and make effective the provisions of this article.


WVC -4- ARTICLE 4. LICENSES.


WVC 60-4-1 §60-4-1. Grant and revocation of licenses; issuance or renewal for calendar year.
The commission shall grant and revoke licenses in accordance with the provisions of this article. Licenses shall be issued and renewed for the period of the calendar year.


WVC 60 - 4 - 2 §60-4-2. Licenses for manufacture.
The commission may grant licenses for the manufacture of alcoholic liquors. Separate licenses shall be issued to the following classes of manufacturing establishments:

(1) Distilleries in which only alcoholic liquors other than wine or beer is manufactured;

(2) Wineries in which only wines are manufactured;

(3) Breweries in which beer is manufactured;

(4) Bottling plants in which beer only is bottled;

(5) Industrial plants in which alcohol is distilled, manufactured or otherwise produced for scientific, chemical, mechanical or industrial purposes;

(6) Farm wineries in which only wines are manufactured; and

(7) Mini-distilleries in which only alcoholic liquors other than wine, beer or nonintoxicating beer are manufactured.


WVC 60 - 4 - 3 §60-4-3. To whom licensed manufacturer may sell.
A person who is licensed to manufacture alcoholic liquors in this state may sell liquors in this state only to the West Virginia Alcohol Beverage Control Commissioner and to wholesalers and retailers licensed as provided in this chapter: Provided, That a holder of a winery or a farm winery license may sell wines and a holder of a distillery or a mini-distillery license may sell alcoholic liquors manufactured by it in this state in accordance with the provisions of section two, article six of this chapter. Hours of retail sale by a winery or a farm winery or distillery or a mini-distillery are subject to regulation by the commissioner. A winery, distillery, farm winery or mini-distillery may sell and ship alcoholic liquors outside of the state subject to provisions of this chapter.


WVC 60 - 4 - 3 A §60-4-3a. Distillery and mini-distillery license to manufacture and sell.
(a) Sales of liquor. -- An operator of a distillery or a mini-distillery may offer liquor for retail sale to customers from the distillery or the mini-distillery for consumption off premises only. Except for free complimentary samples offered pursuant to section one, article six of this chapter, customers are prohibited from consuming any liquor on the premises of the distillery or the mini-distillery.

(b) Retail sales. -- Every licensed distillery or mini-distillery shall comply with the provisions of sections nine, eleven, thirteen, sixteen, seventeen, eighteen, nineteen, twenty-two, twenty-three, twenty-four, twenty-five and twenty-six, article three-a of this chapter and the provisions of articles three and four of this chapter applicable to liquor retailers and distillers.

(c) Payment of taxes and fees. -- The distillery or mini-distillery shall pay all taxes and fees required of licensed retailers and meet applicable licensing provisions as required by this chapter and by rule of the commissioner.

(d) Payments to market zone retailers. -- Each distillery or mini-distillery shall submit to the commissioner ten percent of the gross sales price or each retail liquor sale for the value of all sales at the distillery or the mini-distillery each month. This collection shall be distributed by the commissioner, at least quarterly, to each market zone retailer located in the distillery or mini-distillery's market zone, proportionate to each market zone retailer's annual gross prior years pretax value sales.

(e) Limitations on licensees. -- No distillery or mini-distillery may sell more than three thousand gallons of product at the distillery or mini-distillery location the initial two years of licensure. The distillery or mini-distillery may increase sales at the distillery or mini-distillery location by two thousand gallons following the initial 24-month period of licensure and may increase sales at the distillery or mini-distillery location each subsequent 24-month period by two thousand gallons, not to exceed ten thousand gallons a year of total sales at the distillery or mini-distillery location. No licensed mini-distillery may produce more than twenty thousand gallons per calendar year at the mini-distillery location. No more than one distillery or mini-distillery license may be issued to a single person or entity and no person may hold both a distillery and a mini-distillery license.


WVC 60 - 4 - 3 B §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 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, customers are prohibited from consuming any wine on the premises of the winery or farm winery, unless such winery or farm winery has obtained a multicapacity winery or farm winery license.

(b) Retail sales. -- Every licensed winery or farm winery 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.

(c) Payment of taxes and fees. -- The winery or farm winery shall pay all taxes and fees required of licensed wine retailers and meet applicable licensing provisions as required by this chapter and by rule 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 of wine produced by it, and the price of the wine subject to federal requirements or restrictions.

(e) Limitations on licensees. -- A winery or farm winery must maintain separate winery or farm winery supplier, retailer and direct shipper licenses when acting in one or more of those capacities, and must pay all associated license fees, unless such winery or farm winery holds a license issued pursuant to the provisions of subdivision (12), subsection (b), section three, article eight of this chapter. 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. All wineries must use a distributor to distribute and sell their wine in the state, except for farm wineries. No more than one winery or farm winery license may be issued to a single person or entity, and no person may hold both a winery and a farm winery license.


WVC 60-4-4 §60-4-4. Purchase and resale of alcoholic liquors and ethyl alcohol by wholesale druggists.
The commission may grant to wholesale druggists license to purchase alcoholic liquors at wholesale from or through the commission for the purpose of resale within the state. Such wholesale druggists shall have the right to purchase ethyl alcohol, for nonbeverage purposes, at wholesale, and for resale to pharmacists, or druggists or drugstores employing a duly licensed pharmacist, having a regular place of business, or to other persons licensed to purchase ethyl alcohol from the commission, from distillers, manufacturers, jobbers or other wholesale druggists, whether within or without the state, and whether the seller has a permit or license from the commission to sell same, and ship and transport or cause same to be shipped and transported to their places of business, upon filing with the commission at the time of or prior to such purchase a copy of the purchase order for same, together with a statement in writing showing approximately when, and in what manner the ethyl alcohol so purchased will be shipped or transported to their places of business.


WVC 60-4-5 §60-4-5. Licenses for purchase at wholesale for industrial or scientific uses; wine for sacramental purposes.
The commission may grant licenses to persons to purchase alcoholic liquors at wholesale from or through the West Virginia liquor control commission for industrial, or scientific uses, or for use in institutions as provided in article six, section five of this chapter, and may, by special permit for such fee as the commission may fix, authorize transactions at wholesale for the purchase of alcohol for scientific, chemical, mechanical or industrial purposes only; but, no license fee shall be required from institutions, departments, or agencies of the state government or any political subdivision thereof.

The commission may issue, without fee, special permits authorizing religious organizations to purchase, upon orders approved by the commission, wine for sacramental purposes.


WVC 60-4-6 §60-4-6. Purchase and resale of alcoholic liquors and ethyl alcohol by retail druggists.
The commission may issue licenses to retail druggists to sell, upon prescription, and for the purposes provided for in this chapter, alcoholic liquors purchased from the commission. Any pharmacist, or retail druggist or drugstore employing a duly licensed pharmacist, having a regular place of business, may, upon filing with the commission, at the time of or prior to any purchase, a copy of the purchase order together with a written statement showing approximately when and in what manner any ethyl alcohol purchased will be shipped or transported, purchase from distillers, manufacturers, jobbers or wholesalers, whether within or without the state, and whether the seller has a permit or license to sell the same, ethyl alcohol for use in compounding or manufacturing any of the medical or other preparations mentioned in section four of article six of this chapter, and ship and transport or cause same to be shipped and transported to his place of business.


WVC 60-4-7 §60-4-7. Stills used for laboratory or pharmaceutical purposes.
The commission shall license without fee a still used solely for laboratory purposes in an educational institution and a still used solely for pharmaceutical purposes.


WVC 60-4-7a §60-4-7a. Individuals authorized to manufacture ethyl alcohol for use in the production of gasohol for personal use.
The commission shall issue a license without fee authorizing an individual to manufacture ethyl alcohol solely for personal use by the individual in the production of gasohol and not for sale.

For purposes of this section, the term "gasohol" means any product suitable for use as a fuel in an internal combustion engine containing at least ten percent alcohol distilled from agricultural products or from any other nonpetroleum organic material.


WVC 60-4-8 §60-4-8. Stills used by commercial chemists for laboratory purposes.
The commission shall license a still used by a commercial chemist for laboratory purposes only, and not used for the purpose of the manufacture of alcoholic liquors for resale, at a fee of five dollars.


WVC 60-4-9 §60-4-9. Separate license for each place of business; change §60-4-10 of location.
Each separate place of business shall require a separate license. Licenses shall not be transferable but, with the approval of the commission in such form and manner as the commission may prescribe, may be amended to change the location of the business licensed.


WVC 60-4-10 §60-4-10. Notice of application for license.
A person who desires to apply for a license authorized by the provisions of this chapter shall, not more than thirty nor less than ten days before the filing of formal application, give notice of his intention. He shall give notice by posting a statement of his intention in such form as the commission may require at the front door or principal entrance of the place where the business is to be conducted. He shall also publish notice, in such form as the commission may require, as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county in which he intends to do business: Provided, however, That retail druggists desiring to sell alcoholic liquors on prescriptions shall not be subject to the provisions of this section: Provided further, That such retail druggists shall file formal application in writing with the commission and shall pay the license fee.


WVC 60-4-11 §60-4-11. Time to file application and pay fee.
Not less than ten days after giving notice of his intention, a person desiring to apply for a license shall file formal application, in writing, with the commission and shall pay the license fee.


WVC 60-4-12 §60-4-12. License granted or refused within fifteen days; refund of fee.
Within fifteen days after the filing of formal application for a license the commission shall either grant or refuse the license.

If the commission refuses to grant the license he shall refund the license fee.


WVC 60-4-13 §60-4-13. When license to be refused.
The commission shall refuse the license if it finds that:

(1) The applicant is not a suitable person;

(2) The place to be occupied by the applicant is not a suitable place;

(3) A sufficient number of licenses have already been issued.


WVC 60-4-14 §60-4-14. Annual payment of license fee; effect of failure to pay.
A person possessing a license issued under the provisions of this chapter shall pay the fee annually on or before the first day of January of each year. If the license fee is not paid on that day, the license shall be automatically revoked, unless the commission shall, for good cause, grant an extension in writing for not more than ten days.


WVC 60 - 4 - 15 §60-4-15. Amount of license fees.
A person to whom a license is issued under the provisions of this chapter shall pay annually to the commissioner a license fee as follows, for:

(1) Distilleries, one thousand five hundred dollars;

(2) Wineries, one thousand five hundred dollars;

(3) Breweries, one thousand five hundred dollars;

(4) Bottling plants, one hundred dollars;

(5) Wholesale druggists, fifty dollars;

(6) Institutions, ten dollars;

(7) Industrial use, fifty dollars;

(8) Industrial plants producing alcohol, two hundred fifty dollars;

(9) Retail druggists, ten dollars;

(10) Farm wineries, fifty dollars;

(11) Mini-distilleries, fifty dollars.


WVC 60-4-16 §60-4-16. Records and monthly reports required of licensee.
The commission shall prescribe records to be kept by licensees and shall require regular reports at least every thirty days of the amounts and kinds of alcoholic liquors manufactured, sold, or kept in stock under the authority of a license issued according to the provisions of this article.

Records which the licensee is required to keep shall be open at all reasonable times to inspection by the commission or its agents.


WVC 60-4-17 §60-4-17. Rules, regulations and reports necessary for effective administration.
The commission shall have the authority to prescribe such rules and regulations and to require the reporting of such information by licensees as may be necessary for the effective administration of the provisions of this chapter.


WVC 60-4-18 §60-4-18. Taxation, etc., of licensees by municipal corporations.
A municipal corporation shall not impose a fee or a special tax as a condition upon the exercise of a license issued under the provisions of this chapter.


WVC 60-4-19 §60-4-19. When license revoked.
The commissioner may revoke a license issued under this article upon a finding that:

(1) The licensee is not a suitable person;

(2) The place occupied by the licensee is not a suitable place;

(3) The licensee has violated a provision of this chapter or a regulation made by the commissioner under the authority of this chapter; or

(4) The licensee has failed to comply with the spirit and intent of this chapter by encouraging intemperance, the unlawful consumption of alcoholic liquors, or otherwise.


WVC 60-4-20 §60-4-20. Notice of and hearing on revocation; disposition of stock.
Before revoking a license issued under the authority of this chapter, the commission shall give at least ten days' notice to the licensee. Notice shall be in writing, shall state the reason for revocation and shall designate a time and place when the licensee may show cause why the license should not be revoked. Notice shall be sent by registered mail to the address for which the license was issued. The licensee may, at the time designated for the hearing, produce evidence in his behalf and be represented by counsel. On the final revocation of a license or licenses the commission shall immediately take over the stocks of liquors possessed by the licensee, and pay to the licensee the amount paid by him to the state for such stocks less the amount necessary to defray the costs incurred by the commission in the revocation proceedings.


WVC 60-4-21 §60-4-21. Appeal.
A decision of the commission granting or revoking, or refusing to grant or to revoke a license authorized by this chapter shall be subject to judicial review upon the appeal of a licensee and applicant for a license, a resident of the community in his own behalf or in behalf of the community, or an interested party who is dissatisfied with the decision of the commission in granting, refusing to grant, revoking or refusing to revoke a license authorized by this chapter, but in any such judicial review only the legality of the decision of the commission under the constitution and laws of this state and the United States shall be determined.


WVC 60 - 4 - 22 §60-4-22. Wholesale representatives' licenses.
A person, firm or corporation may not be or act or serve as an agent, broker or salesman selling or offering to sell or soliciting or negotiating the sale of alcoholic liquor to the commission or to any distributor licensed pursuant to article eight of this chapter without first obtaining a license so to do in accordance with the provisions of this section. Only salaried employees of distilleries, manufacturers, producers or processors of alcoholic liquor 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. The commission shall be the licensing authority and may grant to persons of good moral character the license herein provided and may refuse to grant such license to any person convicted of a felony within ten years prior to his or her application for such license; refuse to grant, suspend or revoke licenses. Licenses shall be on an annual basis for the period from the first day of July until the thirtieth day of June next following. New and renewal licenses shall be granted only upon verified application to the commission presented on forms provided by the commission. Any person representing more than one producer, manufacturer or distributor of alcoholic liquors shall file a separate application and shall obtain a separate license for each such representation. The annual license fee shall be one hundred dollars. The fee for any license granted for the remainder of any license year between the first day of January and the thirtieth day of June of the same calendar year shall be 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, may 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 or her name and his or her 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 or she represents; the monetary total of all alcoholic liquor sales, if any, made by him or her 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 or she is seeking a license; the monetary total of the gross income received by him or her on such sales, if any, during such fiscal year; whether he or she 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 or her 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. All such applications and a current list of all licensees hereunder shall be matters of public record and shall be available to public inspection at the commission's offices at the state capitol. Every licensee who ceases to be an agent, broker or salesman, as herein contemplated, shall so advise the commission in writing and such person's name shall be immediately removed from the license list and his or her license shall be canceled and terminated.

All persons licensed under this section shall be authorized representatives of the wineries, farm wineries, distilleries, mini-distilleries, manufacturers, producers or processors of alcoholic liquor they represent. A licensed person may not share, divide or split his or her salary with any person other than his wife or some legal dependent, nor may he or she make any contribution to any political party campaign fund in this state.

All licensees shall be subject to all other provisions of this chapter and to the lawful rules promulgated by the commission. Licenses may be refused, suspended or revoked by the commission 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.

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 guilty of a misdemeanor offense and shall, upon conviction thereof, be fined not exceeding one thousand dollars or imprisoned in jail not exceeding twelve months, or be subject to both such fine and imprisonment in the discretion of the court.


WVC 60 - 4 - 23 §60-4-23. License to operate a facility where exotic entertainment is offered; definitions; restrictions, regulations and prohibitions; prohibitions against minors; application, renewal, license fee, restrictions on transfer; effective date; legislative rules; unlawful acts and penalties imposed.
(a) For purposes of this section:

(1) "Exotic entertainment" means live nude dancing, nude service personnel or live nude entertainment, and "nude" means any state of undress in which male or female genitalia or female breasts are exposed.

(2) "Places set apart for traditional family-oriented naturism" means family nudist parks, clubs and resorts chartered by the American association for nude recreation or the naturist society, including all of their appurtenant business components, and also including places temporarily in use for traditional family-oriented naturist activities.

(b) No person may operate any commercial facility where exotic entertainment is permitted or offered unless such person is granted a license by the commissioner to operate a facility where exotic entertainment may be offered. The provisions of this subsection apply whether or not alcoholic liquor, wine or nonalcoholic beer is legally kept, served, sold or dispensed in a facility, or purchased for use in a facility, or permitted to be brought by others into a facility and whether or not such person holds any other license or permit issued pursuant to chapter sixty of this code.

(c) A licensee is subject to all the regulatory provisions of article seven of this chapter, whether or not the licensee is otherwise a private club. The commissioner shall have all the powers and authorization granted under article seven of this chapter to regulate, restrict and sanction a licensee under this section. No licensee may purchase, keep, sell, serve, dispense or purchase for use in a licensed facility, or permit others to bring into the facility, any alcoholic liquor, wine or nonintoxicating beer without having the appropriate license therefor. No licensee may operate a private club without being licensed therefor.

(d) No person or licensee may allow a person under the age of eighteen years to perform as an exotic entertainer. No person under the age of twenty-one years, other than a performing exotic entertainer, may be allowed to be in a commercial facility on any day on which any exotic entertainment is offered therein. No licensee may hold special nonalcoholic entertainment events for persons under age twenty-one pursuant to the provisions of section eight, article seven of this chapter in the licensed facility.

(e) Any person operating a commercial facility where exotic entertainment is offered on the effective date of this section may apply to the commissioner for a license to operate a facility where exotic entertainment may be offered. Applications must be filed with the commissioner on or before the first day of July, two thousand; thereafter no application for license may be received by the commissioner. The commissioner may issue a license to a person complying with the provisions of this chapter. Upon application for renewal, the commissioner shall annually, on the first day of July of each succeeding year, renew the license of any licensee then in compliance with the provisions of this chapter. The commissioner shall specify the form of application and information required of applicants and licensees. No license which has lapsed, been revoked or expired without renewal may be reissued.

(f) A person to whom a license is issued or renewed under the provisions of this section shall pay annually to the commissioner a license fee of three thousand dollars. A municipal corporation wherein any such licensee is located shall issue a municipal license to any person to whom the commissioner has issued a license and may impose a license fee not in excess of the state license fee.

(g) A person shall not sell, assign or otherwise transfer a license without the prior written approval of the commissioner. For purposes of this section, the merger of a licensee or the sale of more than fifty percent of the outstanding stock of or partnership interests in the licensee shall be deemed to be a sale, assignment or transfer of a license under this section. A license shall not be transferred to another location, except within the county of original licensure. A transferee of a licensed facility may apply for reissuance of the transferor's license if the transferee applicant otherwise qualifies for a license. The commissioner is authorized to propose the promulgation of a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this subsection.

(h) This section shall be effective upon passage by the Legislature in the year two thousand. On or before the first day of May, two thousand, the commissioner shall promulgate an emergency legislative rule pursuant to the provisions of chapter twenty-nine-a of this code to effectuate the provisions of this section, and shall propose a legislative rule therefor, for consideration by the Legislature, prior to the last day of December, two thousand.

(i) Any person who violates any provision of this section, or principal of a firm or corporation which violates any provision of this section, or licensee, agent, employee or member of any licensee who violates any provision of this section, or who violates any of the provisions of section twelve, article seven of this chapter, on the premises of a licensed facility, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than three thousand dollars, or imprisoned for a period not to exceed one year, or both so fined and imprisoned.

(j) The provisions of this section do not apply to places set apart for traditional family-oriented naturist activities.


WVC -5- ARTICLE 5. LOCAL OPTION ELECTIONS.


WVC 60-5-1 §60-5-1. Election in county, magisterial district or municipality.
A county, magisterial district or any municipality may in an election held especially for the purpose, determine whether the sale of alcoholic liquors for beverage purposes shall be permitted within that county, magisterial district or municipality.

A local option election shall not be held within sixty days of a general or municipal election.


WVC 60-5-2 §60-5-2. Election called on petition of five percent of qualified voters.
The county commission, or the governing body of the municipality, as the case may be, shall call a special "local option election" upon the filing of a petition signed by not less than five percent of the qualified voters within the county, a magisterial district or municipality.


WVC 60-5-3 §60-5-3. Form of petition.
The petition shall be in the following form:

Petition for Local Option Election
We, the undersigned legally qualified voters, resident within the county (magisterial district) (municipality) of

_______________, do hereby petition that a special election be held within the county (city, town) of __________________ on the ___________ day of __________________, 19____, upon the following question:

Shall the sale of alcoholic beverages under the West Virginia alcohol beverage control commissioner be permitted in __________________?

Name Address Date

(Post office or street and number)

WVC 60-5-4 §60-5-4. Notice of election; when held; election officers.
The county court or governing body of the municipality shall give notice of the special "local option election" by publication thereof as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the area in which the election is to be held. Such notice shall be so published within fourteen consecutive days next preceding the election. The election shall be held not more than ninety nor less than sixty days from the filing of the petition. The regular election officers of the county or municipal corporation shall open the polls and conduct the election in the same manner provided for general elections.


WVC 60-5-5 §60-5-5. Form of ballot.
On the ballot shall be printed the following:

Shall the sale of alcoholic beverages under the West Virginia liquor control commission be permitted in ..............?

[] Yes.

[] No.

(Place a cross mark in the square opposite your choice.)


WVC 60-5-6 §60-5-6. How election conducted and results certified.
The ballots shall be counted, returns made and canvassed as in general elections, and the results certified by the commissioners of election to the county court of the county, or the governing body of the municipality, as the case may be. The county court or governing body shall without delay certify the result of the election to the commission.


WVC 60-5-7 §60-5-7. Discontinuance of state stores and agencies in local option territory.
Within thirty days after a "local option election" in which a majority has voted "No," the commission shall close all state stores and discontinue all agencies situated within the county, the magisterial district or municipality.


WVC 60-5-8 §60-5-8. When another election may be held.
When a "local option election" has been held in a county, a magisterial district or municipality, another such election shall not be held for a period of two years; except that an election may be held within a municipality without regard to an election held in or the time limit applicable to the county within which the municipality, or a part thereof, is located.


WVC 60 - 6 - ARTICLE 6. MISCELLANEOUS PROVISIONS.


WVC 60 - 6 - 1 §60-6-1. When lawful to possess, use or serve alcoholic liquors.
The provisions of this chapter may not prevent:

(1) A person from keeping and possessing alcoholic liquors in his or her residence for the personal use of himself or herself, his or her family, his or her employee or his or her guests if the alcoholic liquors have been lawfully acquired by him or her;

(2) A person, his or her family, or employee from giving or serving such alcoholic liquors to guests in the 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

(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.


WVC 60 - 6 - 2 §60-6-2. When lawful to manufacture and sell wine and cider.
The provisions of this chapter may not prevent:

(1) A person from manufacturing wine at his or her residence for consumption at his or her residence as permitted by section one of this article;

(2) A person from manufacturing and selling unfermented cider;

(3) A person from manufacturing and selling cider made from apples produced by him or her within this state to persons holding distillery licenses, if the manufacture and sale is under the supervision and regulation of the commissioner;

(4) A person from manufacturing and selling wine made from fruit produced by him or her within this state to persons holding winery licenses, if the manufacture and sale is under the supervision and regulation of the commissioner;

(5) The holder of a winery or a farm winery license from selling wine for off-premises consumption sold at retail at the winery or the farm winery, as provided in section four, article three-b of this chapter, or for any other person who is licensed under this chapter to sell wine as a wine supplier or distributor; and

(6) The holder of a distillery or a mini-distillery license from selling alcoholic liquor for off-premises consumption sold at retail at the distillery or the mini-distillery, as provided in section four, article three-a of this chapter.


WVC 60-6-3 §60-6-3. Applicability of chapter to certain uses of ethyl alcohol.
The provisions of this chapter relating to state monopoly shall not apply to ethyl alcohol used:

(1) For scientific, chemical, mechanical or industrial purposes;

(2) By those authorized to procure ethyl alcohol tax free under the acts of Congress and regulations thereunder;

(3) In the manufacture of denatured alcohol produced and used as provided by the acts of Congress and regulations thereunder;

(4) In the manufacture of scientific, chemical, mechanical and industrial preparations or products unfit for beverage purposes;

(5) By those authorized to manufacture ethyl alcohol for use in the production of gasohol for personal use pursuant to section seven-a, article four of this chapter.

Nothing in this section shall be so construed as to exempt such users of ethyl alcohol from the license and transportation provisions of this chapter.


WVC 60-6-4 §60-6-4. Permitted use by druggists.
The provisions of this chapter shall not prevent a person from manufacturing, selling, delivering or shipping:

Any medicine containing sufficient medication to prevent its use as a beverage;

Any medicinal preparation manufactured in accordance with formulas prescribed by the United States pharmacopoeia, and national formulary, patent and proprietary preparations, and other bona fide medical and technical preparations, which are manufactured and sold to be used exclusively as medicine and not as beverages, and the sale of which does not now require the payment of a United States liquor dealer's tax;

Toilet, medicinal and antiseptic preparations not intended for internal human use nor for beverage purposes;

Any food products known as flavoring extracts manufactured and sold for cooking and culinary purposes only and not for beverage purposes;

Nor shall such provisions prevent pharmacists, retail druggists or drugstores employing a duly licensed pharmacist, from purchasing or causing to be shipped to their place of business ethyl alcohol for use in compounding or manufacturing any of the medical or other preparations enumerated in this section, as provided in section six, article four of this chapter.


WVC 60-6-5 §60-6-5. Applicability of chapter to certain uses by physicians, druggists and others.
The provisions of this chapter shall not prevent:

(1) A physician from prescribing the use of alcoholic liquors when necessary for a bona fide patient;

(2) A druggist from selling, upon a prescription properly issued by a physician, alcoholic liquors for medicinal purposes;

(3) A physician, dentist, or veterinarian, in the legitimate practice of his profession, from using and administering alcoholic liquors;

(4) Hospitals, sanitariums, or that division of any institution which is regularly conducted as a hospital, dispensary or infirmary, from using or administering alcoholic liquors to bona fide patients. Institutions and the divisions thereof provided in this section may carry a stock of alcoholic liquors sufficient for this purpose;

(5) Religious organizations from using wine for sacramental purposes.


WVC 60-6-6 §60-6-6. Transporting alcoholic liquor in excess of ten gallons.
The provisions of this chapter shall not prevent a person from bringing into or transporting in this state, in his possession or in his baggage, and not for resale, alcoholic liquor in a quantity not to exceed ten gallons: Provided, That upon written permission of the commissioner, quantities of alcoholic liquor in excess of ten gallons may be transported within this state.


WVC 60-6-7 §60-6-7. Specific acts forbidden; indictment.
A person shall not:

(1) Manufacture or sell in this state without a license any alcoholic liquor except as permitted by this article;

(2) Aid or abet in the manufacture or sale of alcoholic liquor without a license except as permitted by this article;

(3) Sell without a license any alcoholic liquor other than permitted by this article;

(4) Adulterate any alcoholic liquor by the addition of any drug, methyl alcohol, crude, unrectified or impure form of ethyl alcohol, or other foreign or deleterious substance or liquid;

(5) Refill, with alcoholic liquor, any bottle or other container in which alcoholic liquor has been sold at retail in this state;

(6) Advertise any alcoholic liquor in this state except in accordance with the rules and regulations of the commissioner; or

(7) Distribute, deal in, process, or use crowns, stamps or seals required under the authority of this chapter, except in accordance with the rules and regulations prescribed by the commissioner.

A person who violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than five hundred dollars, or confined in jail not less than thirty days nor more than one year or both such fine and imprisonment, for the first offense. Upon conviction of a second or subsequent offense, the court may in its discretion impose a penalty of confinement in the penitentiary for a period not to exceed three years.

An indictment for any first violation of subdivisions (1), (2) and (3) of this section, or any of them, shall be sufficient if in form or effect as follows:

State of West Virginia

County of ..........................., to wit:

The Grand Jurors of the State of West Virginia, in and for the body of the County of .........., upon their oaths present that ..............., on the ....... day of ........, 19...., in the said County of .........., did unlawfully, without a State license and without authorization under the Alcohol Beverage Control Act, manufacture and sell, and aid and abet in the manufacture and sale of a quantity of alcoholic liquor, against the peace and dignity of the State.

Any indictment under this section shall otherwise be in conformity with section one, article nine, chapter sixty-two of the code.


WVC 60-6-8 §60-6-8. Unlawful sale or possession by licensee.
A licensed person shall not:

(1) Sell alcoholic liquors of a kind other than that which such license or this chapter authorizes him to sell;

(2) Sell beer to which wine, spirits, or alcohol has been added;

(3) Sell wine to which other alcoholic spirits have been added, otherwise than as required in the manufacture thereof under regulations of the commission;

(4) Sell alcoholic liquors to a person specified in section twenty-two, article three of this chapter;

(5) Sell alcoholic liquors except as authorized by his license;

(6) Sell any alcoholic liquor when forbidden by the provisions of this chapter;

(7) Keep on the premises covered by his license alcoholic liquor other than that which he is authorized to sell by such license or by this chapter.

A person who violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than five hundred dollars, or confined in jail not less than thirty days nor more than one year, or both such fine and imprisonment for the first offense. Upon conviction of a second or subsequent offense, the court may in its discretion impose a penalty of confinement in the penitentiary for a period not to exceed three years.


WVC 60 - 6 - 9 §60-6-9. Intoxication or drinking in public places; illegal possession of alcoholic liquor; arrests by sheriffs or their deputies for violation in their presence; penalties.
(a) A person shall not:

(1) Appear in a public place in an intoxicated condition;

(2) Drink alcoholic liquor in a public place;

(3) Drink alcoholic liquor in a motor vehicle on any highway, street, alley or in a public garage;

(4) Tender a drink of alcoholic liquor to another person in a public place;

(5) Possess alcoholic liquor in the amount in excess of ten gallons, in containers not bearing stamps or seals of the commissioner, without having first obtained written authority from the said commissioner therefor; or

(6) Possess any alcoholic liquor which was manufactured or acquired in violation of the provisions of this chapter.

(b) Any law-enforcement officer may arrest without a warrant and take the following actions against a person who, in his or her presence, violates subdivision (1) of subsection (a) of this section: (1) If there is some nonintoxicated person who will accept responsibility for the intoxicated person, the officer may issue the intoxicated person a citation specifying a date for appearance before a judicial officer and release him or her to the custody of the individual accepting responsibility: Provided, That the issuance of a citation shall be used whenever feasible; (2) if it does not impose an undue burden on the officer, he or she may, after issuance of such a citation, transport the individual to the individual's present residence or arrange for such transportation; (3) if the individual is incapacitated or the alternatives provided in subdivisions (1) and (2) of this subsection are not possible, the officer shall transport or arrange for transportation to the appropriate judicial officer as defined by section seventeen, article eleven, chapter twenty-seven of this code; or (4) if the individual is incapacitated and, in the law-enforcement officer's judgment, is in need of acute medical attention, that officer shall arrange for transportation by ambulance or otherwise to a hospital emergency room. The officer shall accompany the individual until he or she is discharged from the emergency room or admitted to the hospital. If the individual is released from the emergency room, the officer may proceed as described in subdivisions (1), (2) and (3) of this subsection. If the individual is admitted to the hospital, the officer shall issue a citation to the individual specifying a date for appearance before a judicial officer.

(c) Upon presentment before the proper judicial officer, the law-enforcement officer shall serve as the chief complaining witness. The judicial officer must make a finding that there is probative evidence that the individual may be guilty of the charge of public intoxication. If such evidence is not presented, the charge shall be dismissed and the individual released. If sufficient evidence is presented, the judicial officer shall issue a warrant and establish bail or issue a summons to the individual. Once a warrant or summons has been issued, the following actions may be taken: (1) If the individual is no longer incapacitated, he or she may be released; (2) if the individual is still incapacitated but a nonintoxicated person is available to accept responsibility for him or her, he or she may be released to the responsible person; or (3) if the individual is still incapacitated and no responsible person is available, the judicial officer shall proceed under the provisions of article five or six-a, chapter twenty-seven of this code.

(d) Any law-enforcement officer is hereby authorized and empowered to arrest and hold in custody, without a warrant, until complaint may be made before a judicial officer and a warrant or summons issued, any person who in the presence of the law-enforcement officer violates any one or more of subdivisions (1) through (6), subsection (a) of this section: Provided, That the law-enforcement officer may use reasonable force to prevent harm to himself or herself, the individual arrested or others in carrying out the provisions of this section.

(e) Any person who violates subdivision (1), subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced by a judicial officer in accordance with the following options: (1) Upon first offense, a fine of not less than five dollars nor more than one hundred dollars. If the individual, prior to conviction, agrees to voluntarily attend an alcohol education program of not more than six hours duration at the nearest community mental health -- mental retardation center, the judicial officer may delay sentencing until the program is completed and upon completion may dismiss the charges; (2) upon conviction for a second offense, a fine of not less than five dollars nor more than one hundred dollars and not more than sixty days in the county or regional jail or completion of not less than five hours of alcoholism counseling at the nearest community mental health -- mental retardation center; (3) upon third and subsequent convictions, a fine of not less than five dollars nor more than one hundred dollars and not less than five nor more than sixty days in county or regional jail or a fine of not less than five dollars nor more than one hundred dollars and completion of not less than five hours of alcoholism counseling at the nearest community mental health -- mental retardation center: Provided, That three convictions for public intoxication within the preceding six months shall be considered evidence of alcoholism: Provided, however, That for the educational counseling programs described in this subsection the community mental health -- mental retardation center may charge each participant its usual and customary fee and shall certify in writing to the referring judicial officer the completion or failure to complete the prescribed program for each individual.

(f) A person charged with a violation of subdivision (1), subsection (a) of this section who is an alcoholic shall be found not guilty by reason of addiction and proper disposition made pursuant to articles five and six-a, chapter twenty-seven of this code.

(g) Any person who violates subdivision (2), subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five nor more than one hundred dollars; and upon a second or subsequent conviction thereof, shall be fined not less than five nor more than one hundred dollars, or confined in the county or regional jail not more than sixty days, or both.

(h) Any person who violates subdivision (3), subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five nor more than one hundred dollars, or confined in the county or regional jail not more than sixty days, or both.

(i) Any person who violates subdivision (4) or (5), subsection (a) of this section shall be guilty of a misdemeanor and, upon his or her first conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars; and upon conviction of second or subsequent offense, he or she shall be guilty of a felony and shall be confined in the penitentiary of this state for a period of not less than one year nor more than three years.


WVC 60-6-10 §60-6-10. Unlawful operation of plant manufacturing distilled spirits.
A person who unlawfully owns, operates, or maintains a plant for the manufacture of distilled spirits, or aids or abets in the operation or maintenance of such a plant shall be guilty of a felony, and upon conviction shall be fined not less than one hundred nor more than one thousand dollars or confined in the penitentiary not less than one nor more than five years.


WVC 60-6-11 §60-6-11. Unlawful manufacture, etc., while armed.
A person who, while engaged in the unlawful manufacture, transportation or sale of alcoholic liquors, or while aiding or assisting in any of such acts, has in his actual or constructive possession a firearm or other lethal weapon, shall be guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than ten years.


WVC 60-6-12 §60-6-12. Transportation of alcoholic liquors into or through state; permits; bond of permittee.
The commission may adopt regulations governing the transportation of alcoholic liquors, lawfully acquired, within, into or through the state in quantities in excess of one gallon as it may deem necessary to confine such transportation to legitimate purposes and may issue transportation permits in accordance with such regulations, collect a fee therefor, and shall require each person to whom such a permit is issued to furnish a bond in such form and amount and with such surety as the commission shall direct, conditioned that he will exercise the privileges granted by such permit in conformity with the provisions of this chapter and the regulations of the commission, or in default thereof forfeit to the state school fund the sum of one hundred dollars for each breach recoverable by motion upon ten days' notice in any court having jurisdiction of the parties.

A person who, without authorization under this chapter, transports alcoholic liquors in quantities in excess of one gallon or in any amount for the purpose of sale or in any amount manufactured or acquired contrary to the provisions of this chapter, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than one hundred nor more than five hundred dollars, or confined in jail not to exceed one year, or both such fine and imprisonment for the first offense. Upon conviction of a second or subsequent offense, he shall be guilty of a felony and confined in the penitentiary of this state for a period of not less than one nor more than three years.


WVC 60-6-13 §60-6-13. Restrictions on importing into, and transporting liquors in state.
Except as permitted by section six of this article and article eight of this chapter, a person shall not import into, or transport in this state, any alcoholic liquors, unless it is:

(1) Consigned to the commission;

(2) Transported upon the direction of the commission directly to persons licensed to receive alcoholic liquors at wholesale; or

(3) Transported into the state or through the state to persons outside the state upon transportation permits issued by the commissioner.


WVC 60-6-14 §60-6-14.
Repealed.

Acts, 1937 Reg. Sess., Ch. 14.


WVC 60-6-15 §60-6-15. Penalties for violations not otherwise specified.
A person who violates any order, rule or regulation of the commission made under the authority of this chapter, or who violates any provisions of this chapter for which punishment has not been specifically provided, shall be guilty of a misdemeanor and upon conviction shall be fined not less than ten nor more than five hundred dollars or confined in jail not less than five days nor more than six months, or by both such fine and imprisonment.

If, by the provisions of this chapter, conflicting penalties are prescribed for an offense, the section providing for the heavier penalty shall control.


WVC 60-6-16 §60-6-16. Places deemed common and public nuisances; abatement; conspiracy.
A place where alcoholic liquor is manufactured, sold, stored, possessed, given away, or furnished contrary to law shall be deemed a common and public nuisance. Boats, cars (including railroad and traction passenger cars operating in this state), automobiles, wagons, water and aircraft, beasts of burden, or vehicles of any kind shall be deemed places within the meaning of this section and may be proceeded against under the provisions of section seventeen of this article. A person who shall maintain, or shall aid or abet or knowingly be associated with others in maintaining such common and public nuisance shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than five hundred dollars, or by confinement in jail not less than sixty days nor more than six months for each offense, and judgment shall be given that such nuisance be abated or closed as a place for the manufacture, sale, storage, possession, giving away, or furnishing contrary to law of alcoholic liquor, as the court may determine.

If two or more persons conspire to maintain such common and public nuisance or to distill, manufacture, store, transport, sell, give away, or furnish alcoholic liquor in violation of any of the provisions of this chapter, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars or by confinement in jail for not less than one month nor more than six months, or in the discretion of the court, by both such fine and imprisonment.


WVC 60-6-17 §60-6-17. Suit to abate nuisances; injunction.
The commission, its agents, the attorney general, the prosecuting attorney, or a citizen of the county or municipality where a nuisance as defined in section sixteen of this article is located, may maintain a suit in equity in the name of the state to abate and perpetually enjoin the same. Courts of equity shall have jurisdiction thereof. The injunction may be granted at the commencement of the suit and no bond shall be required. On the finding that the material allegations of the bill are true, the court or judge thereof in vacation shall order the injunction for such period of time as it or he may think proper, with the right to dissolve the injunction upon the application of the owner of the place, if a proper case is shown for such dissolution.

The continuance of the injunction as provided in this section may be ordered, although the place complained of may not at the time of hearing be unlawfully used.


WVC 60-6-18 §60-6-18. Search warrants.
If there be complaint on oath or affirmation supported by affidavit or affidavits setting forth the facts for such belief that alcoholic liquors are being manufactured, sold, kept, stored or in any manner held, used or concealed in a particular house or other place in violation of law, the justice of the peace, circuit, criminal or intermediate court, or the judge thereof in vacation, or the mayor of any city, town or village to whom such complaint is made, if satisfied that there is a probable cause for such belief, shall issue a warrant to search such house or other place for alcoholic liquors. Such warrants, except as herein otherwise provided, shall be issued, directed and executed in accordance with the laws of West Virginia pertaining to search warrants.

Warrants issued under this chapter for the search of any automobile, boat, conveyance or vehicle, or for the search of any trunk, grip or other article of baggage, for alcoholic liquor, may be executed in any part of the state where the same are overtaken, and shall be made returnable before any justice of the peace, circuit, criminal or intermediate court, or the judge thereof in vacation, or the mayor of any city, town or village within whose jurisdiction such automobile, boat, conveyance, vehicle, trunk, grip or other article of baggage, or any of them, were transported or attempted to be transported contrary to law.

An officer charged with the execution of a warrant issued under this section, may, whenever it is necessary, break open and enter a house, or other place herein described.


WVC 60-6-19 §60-6-19. Forfeiture of stills, etc.
All stills and distilling apparatus and material for the manufacture of the same, and all alcoholic liquors, and materials used in the manufacture of alcoholic liquors, and all containers in which alcoholic liquors may be found, which are kept, stored, possessed or in any manner used in violation of the provisions of this chapter shall be deemed contraband and shall be forfeited to the state.


WVC 60-6-20 §60-6-20. Contraband conveyances; forfeiture and disposition.
A conveyance of any kind, either on land, water, or in the air, used for transportation of alcoholic liquors in violation of section twelve of this article, shall be deemed contraband and shall be forfeited to the state and proceeded against in the manner provided for confiscation by section twenty-one of this article.

Any such conveyance forfeited to the state under the provisions of this section shall be turned over to the commission, which may retain the same for public use in the administration and enforcement of this chapter. If it has no need for the conveyance, it may order its destruction or sale unless the department of public safety requests it, in which case the commission shall turn it over to the said department.

The net proceeds of sales made under this section shall be paid into the state treasury in the manner prescribed for receipts from state stores and agencies.


WVC 60-6-21 §60-6-21. Court procedure as to contraband and forfeited articles.
Proceedings for confiscation of articles, conveyances or vehicles declared contraband and forfeited to the state under section twenty shall be had in the circuit or inferior court having criminal jurisdiction, either in vacation or term time, in the county where such articles, conveyances or vehicles were seized, and the procedure shall be as follows:

(1) When such articles, conveyances or vehicles have been seized under or without a warrant provided for in section eighteen of this article, by an officer charged with the enforcement of this chapter, the officer shall take possession of such article, conveyance or vehicle and deliver the same and the alcoholic liquors so seized to the sheriff of the county in which such seizure was made, taking his receipt therefor in duplicate.

(2) The officer making such seizure shall forthwith report in writing of such seizure to the prosecuting attorney of the county in which such seizure was made and to the commission.

(3) Within not less than ten days nor more than sixty days after receiving notice of any such seizure, the prosecuting attorney for the county shall file, in the name of the state, a petition against the seized property, in the clerk's office of the circuit court of the county, returnable to the circuit court or inferior court having criminal jurisdiction, which petition shall be filed by the clerk without fee and may be heard by said court or judge thereof in vacation.

(4) Such petition shall allege the seizure, and set forth in general terms, the grounds of forfeiture of the seized property, and shall pray that the same be forfeited to the state and the proceeds disposed of according to law, and that all persons concerned or interested may appear and show cause why said property should not be forfeited to the state.

(5) The owner of and all persons in any manner then indebted or liable for the purchase price of said property, and any person having a lien thereon, if they be known to the prosecuting attorney, shall be made parties defendant thereto, and shall be served with the notice issued by the clerk of such court, hereinafter provided for in the manner provided by law for serving a notice, at least ten days before the day therein specified for the hearing on said petition, if they be residents of this state, and, if they be unknown or nonresidents, or cannot with reasonable diligence be found in this state, they shall be deemed sufficiently served by publication of said notice as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be said county.

(6) Any person claiming to be the owner of such seized property, or to hold a lien thereon or have an interest therein, may appear at any time before final judgment of the trial court, and be made a party defendant to the petition so filed, which appearance shall be by answer, under oath, in which shall be clearly set forth the nature of such defendant's claim or interest.

(7) If the court or judge thereof in vacation shall find that illegally acquired alcoholic liquors or alcoholic liquors being illegally transported in amounts in excess of one gallon, were not found in such conveyance or vehicle at the time of the seizure thereof, the judgment of the court shall be to entirely relieve said property from forfeiture, and no costs shall be taxed against such claimant.

(8) If the court or judge thereof in vacation trying the issue shall find or if it be admitted that said conveyance or vehicle at the time of the seizure contained illegally acquired liquor or that alcoholic liquors were being illegally transported therein, nevertheless:

(a) If it shall appear to the satisfaction of the court that such claimant is the bona fide owner and was such owner at the time of such seizure and that he was ignorant of such illegal use thereof and the illegal use was without his connivance or consent, expressed or implied, the court shall relieve said conveyance or vehicle from forfeiture and restore it to such claimant and no cost shall be taxed against such claimant,

(b) If it shall appear to the satisfaction of the court that such claimant is the holder of a bona fide lien against the property and was the holder of such lien at the time of such seizure and that he was ignorant of such illegal use thereof, or the use so made of such conveyance or vehicle was without his connivance or consent, expressed or implied, and that the claimant has perfected his lien, the court shall,

(1) If the lien so established is equal to or more than the value of the conveyance or vehicle, such conveyance or vehicle shall be delivered to the lienor upon the payment of storage and cost,

(2) If the lien is less than the value of the conveyance or vehicle, the lienor may have said conveyance or vehicle delivered to him upon payment of the difference in amount as determined in such proceedings; but should the lienor not demand delivery as aforesaid, an order shall be made for the sale of said property by the sheriff of the county, in the manner prescribed by law for sale of personal property under execution, out of the proceeds of which sale shall be paid, first, the storage, if any, second, the cost, third, the lien, and the residue, if any, shall be paid to the commission.

(9) If, however, no valid lien or claim is established against the seized property upon the trial of the petition, or, if it shall be determined that the owner thereof was himself using the same at the time of the seizure or that such illegal use was with his knowledge or consent, expressed or implied, the said property shall be completely forfeited to the state and turned over to the commission in accordance with the provisions of this chapter.

(10) In every case, the alcoholic liquors so seized shall be deemed contraband and forfeited to the state as heretofore provided.


WVC 60-6-22 §60-6-22. Action to recover price of liquors sold unlawfully.
No action shall be maintained to recover the price of alcoholic liquor sold in violation of the provisions of this chapter, except that the state or the commission may recover from any person the price of any alcoholic liquor purchased by him in violation of this chapter, and from any person who may have sold alcoholic liquors in violation of the provisions of this chapter, the consideration received by him therefor.


WVC 60-6-23 §60-6-23. Treatment of minors for addiction to alcoholic liquor and beer.
Notwithstanding any other law to the contrary, any licensed physician may examine, counsel, diagnose and treat any minor at his or her request for any addiction to or dependency upon the use of alcoholic liquor or nonintoxicating beer, as defined in section five, article one of this chapter, without the knowledge or consent of the minor's parent or guardian. Such physicians shall not incur any civil or criminal liability in connection therewith except for negligence or willful injury.


WVC 60-6-24 §60-6-24. Requirement for posting informational sign.
Each store or outlet controlled or operated by the state alcohol beverage control commission, and any store, supermarket, club, restaurant, or other facility selling alcoholic beverages or nonintoxicating beer for either on- premise or off-premise consumption, shall post in an open and prominent place within such establishment a blood- alcohol chart containing information showing the estimated percent of alcohol in the blood by the number of drinks in relation to body weight and time of consumption, as follows:

FORM OMITTED

FORM OMITTED

The size of display and location of said blood-alcohol chart shall be prescribed by the commissioner, by rule and regulation. Enforcement of the posting provisions of this section shall be carried out by the West Virginia nonintoxicating beer commissioner in establishments which are required to post such notice but are not subject to the supervision of the West Virginia alcohol beverage control commissioner.


WVC 60 - 6 - 25 §60-6-25. Mandatory signs to be posted warning of the possible dangers of consumption of alcohol during pregnancy.
(a) Beginning the first day of July, one thousand nine hundred ninety-eight, all persons licensed to sell alcoholic liquor, wine or nonintoxicating beer at retail, either for consumption on-premises or off-premises, or both, shall display signs provided by the alcohol beverage control commissioner warning of the possible danger of birth defects which may result from the consumption of alcohol during pregnancy. These signs shall be displayed upon the licensed premises in the following manner:

(1) If a licensee holds a license providing for the retail sale of alcoholic liquor, wine or nonintoxicating beer for on-premises consumption, the sign shall be posted in an open and prominent place in the licensed portion of the establishment: Provided, That self-service "mini-bars" in hotel guest rooms are exempt: Provided, however, That airports, convention centers, sports facilities and other licensed premises with more than one authorized location of sales, service and consumption shall post signs in plain view to the majority of patrons entering or approaching the licensed portion of the premises.

(2) If the licensee holds a license providing for the retail sale of alcoholic liquor, wine or nonintoxicating beer for off-premises consumption, the sign shall be posted in plain view at the main entrance to the licensed premises.

(3) If the licensee is a liquor manufacturer, the notices shall be posted in plain view at the main entrance to areas where alcohol is sold for off-premises consumption. If a manufacturer's tasting rooms have separate buildings or separate entrances, the sign shall be posted in plain view at the main entrance to the tasting area.

(b) The alcohol beverage control commissioner shall make signs and replacements warning of the possible danger of birth defects which may result from the consumption of alcohol during pregnancy available to each licensee governed by the provisions of this section.

(c)(1) Upon a determination by the commissioner that a licensee has failed to comply with the provisions of this section, the commissioner may impose a civil administrative penalty of not less than one hundred dollars nor more than one thousand dollars for each violation. The provisions of section fifteen of this article shall not apply to a violation of this section.

(2) The commissioner shall propose legislative rules for promulgation pursuant to the provisions of chapter twenty-nine-a of this code setting forth:

(A) Objective criteria against which the exercise of the commissioner's discretion in the determination of whether to impose a civil administrative penalty is to be measured; and

(B) Procedures meeting the requirements of due process through which an alleged violation of this section may be contested.

(3) The proceeds of civil administrative penalties collected for violations of this section shall be deposited in a fund hereby established in the state treasury to be known as the "fetal alcohol syndrome fund". The commissioner shall expend the moneys deposited in the fund to educate the public concerning the dangers of fetal alcohol syndrome without appropriation except as provided in this subsection. After the sum of five thousand dollars has been deposited into the fund during a fiscal year, any additional deposits shall be divided as follows: (1) An amount necessary to allow the commissioner to carry out his or her duties pursuant to this section, not to exceed one half of such additional deposits, shall be deposited in the alcohol beverage control administration fund; and (2) the remainder of such additional deposits shall be made to the state fund, general revenue. Any moneys remaining in the fund on the thirtieth day of June of each year shall be subject to reappropriation for expenditure during the following fiscal year. The commissioner shall annually file a report with the president of the Senate and the speaker of the House of Delegates, informing the Legislature as to the amounts deposited in the funds, and the purposes for which the amounts deposited in the alcohol beverage control administration fund were expended.


WVC 60 - 6 - 26 §60-6-26. Conditional discharge for first offense of certain offenses related to nonintoxicating beer or alcoholic liquor.

     (a) When a person pleads guilty to or is found guilty of a violation of subdivision (1), subsection (a), section nineteen, article sixteen, chapter eleven of this code; subsection (b), section nineteen, article sixteen, chapter eleven of this code; subsection (a), section twenty-two-a, article three of this chapter; subdivision (1), subsection (a), section twenty-four, article three-a of this chapter; subsection (b), section twenty- four, article three-a of this chapter; subsection (a) or (b), section twelve-a, article seven of this chapter; or subsection (a) or (b), section twenty-a, article eight of this chapter, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions it considers appropriate, if the person has not previously been convicted of:

     (1) Any of the offenses contained in the code provisions referenced in this subsection; or

     (2) Any statute of the United States or of any state relating to underage purchase, consumption, sale, service or possession of nonintoxicating beer or alcoholic liquor.

     (b) If the person violates a term or condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law.

     (c) Upon fulfillment of the terms and conditions of the probation, the court shall discharge the person and dismiss the proceedings against him or her.

     (1) Discharge and dismissal under this section is without adjudication of guilt and is not a conviction for purposes of this section or the section of the original charge, or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

     (2) The effect of the discharge and dismissal is to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial.

     (3) A person to whom a discharge and dismissal have been effected under this section may not be found guilty of perjury, false swearing or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial relating to a charge discharged and dismissed by this section in response to any inquiry made of him or her for any purpose.

     (d) There may be only one discharge and dismissal under this section with respect to any one person.

     (e) After a period of not less than six months after the expiration of a term of probation imposed upon a person under the provisions of this section, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial and discharge pursuant to this section. If the court determines after a hearing that the person during the period of his or her probation and during the period prior to his or her application to the court under this subsection has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement.

     (f) Notwithstanding any provision of this code to the contrary, any person prosecuted for an alleged violation of an offense listed in subsection (a) of this section, whose case is disposed of pursuant to the provisions of this section, is liable for all court costs assessable against a person convicted of a violation of the section under which the person was prosecuted. Payment of the costs may be made a condition of probation. The costs assessed pursuant to this section, whether as a term of probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty of this code; section four, article two-a, chapter fourteen of this code; section four, article twenty-nine, chapter thirty of this code; and sections two, seven and ten, article five, chapter sixty-two of this code.
WVC -7- ARTICLE 7. LICENSES TO PRIVATE CLUBS.


WVC 60-7-1 §60-7-1. Legislative findings and purposes.
The Legislature of West Virginia, having carefully considered the provisions of section 46 of article VI of the constitution of this state and all of the matters giving rise to the enactment thereof and having further considered the operations of private clubs as defined in this article, hereby determines and finds that such private clubs are not saloons or other public places in which the sale and consumption of intoxicating liquors are required to be prohibited by the provisions of said section 46 of article VI of said constitution; but, to the contrary, are private places in which such sale and consumption of intoxicating liquors are constitutionally permitted and authorized.


WVC 60-7-2 §60-7-2. Definitions; power to lease building for establishment of private club.
Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Private club" means any corporation or unincorporated association which either (1) belongs to or is affiliated with a nationally recognized fraternal or veterans organization, which is operated exclusively for the benefit of its members, which pays no part of its income to its shareholders or individual members, which owns or leases a building or other premises, to which club are admitted only duly elected or approved dues paying members in good standing of such corporation or association and their guests while in the company of a member and to which club the general public is not admitted, and which club maintains in said building or on said premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests, or (2) is a nonprofit social club, which is operated exclusively for the benefit of its members, which pays no part of its income to its shareholders or individual members, which owns or leases a building or other premises, to which club are admitted only duly elected or approved dues paying members in good standing of such corporation or association and their guests while in the company of a member and to which club the general public is not admitted, and which club maintains in said building or on said premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests, or (3) is organized and operated for legitimate purposes, which has at least one hundred duly elected or approved dues paying members in good standing, which owns or leases a building or other premises, including any vessel licensed or approved by any federal agency to carry or accommodate passengers on navigable waters of this state, to which club are admitted only duly elected or approved dues paying members in good standing of such corporation or association and their guests while in the company of a member and to which club the general public is not admitted, and which club maintains in said building or on said premises a suitable kitchen and dining facility with related equipment and employs a sufficient number of persons for serving meals to members and their guests, or (4) is organized for legitimate purposes and owns or leases a building or other limited premises in any state, county or municipal park or at any airport, in which building or premises a club has been established, to which club are admitted only duly elected and approved dues paying members in good standing and their guests while in the company of a member and to which club the general public is not admitted, and which maintains in connection with said club a suitable kitchen and dining facility and related equipment and employs a sufficient number of persons for serving meals in said club to said members and their guests.

(b) "Licensee" means the holder of a license to operate a private club granted under the provisions of this article, which license shall remain unexpired, unsuspended and unrevoked.

(c) "Applicant" means a private club applying for a license under the provisions of this article.

(d) "Commissioner" means the West Virginia alcohol beverage control commissioner.

(e) "Code" means the official code of West Virginia, one thousand nine hundred thirty-one, as amended.

The department of natural resources, the authority governing any county or municipal park, or any county commission, municipality, other governmental entity, public corporation or public authority operating any park or airport shall have plenary power and authority to lease as lessor a building or portion thereof or other limited premises in any such park or airport to any corporation or unincorporated association for the establishment of a private club pursuant to the provisions of this article.


WVC 60-7-3 §60-7-3. Sale of alcoholic liquors and nonintoxicating beer by licensee authorized.
Notwithstanding any other provisions of this code to the contrary, licensees are hereby authorized to sell alcoholic liquors, other than in sealed packages, for consumption on the premises of the licensees, to their members and their guests in accordance with the provisions of this article. The licensees may keep and maintain on their premises a supply of those alcoholic liquors in such quantities as may be appropriate for the conduct of operations thereof.


WVC 60 - 7 - 4 §60-7-4. Application for license; information required; verification; application to be accompanied by fees; bond; college fraternities and sororities ineligible for license; racial discrimination by applicants prohibited.
(a) Application for a license to operate a private club shall be made on such form as may be prescribed by the commissioner and shall include:

(1) The name of the applicant;

(2) If the applicant is an unincorporated association, the names and addresses of the members of its governing board;

(3) If the applicant is a corporation, the names and addresses of its officers and directors;

(4) The place at which the applicant will conduct its operations and whether the same is owned or leased by the applicant;

(5) The number of members of the applicant;

(6) The name or names of any national organizations with which applicant is affiliated and the nature of such affiliation;

(7) The size and nature of the dining and kitchen facilities operated by applicant; and

(8) Such other information as the commissioner may reasonably require which shall include, but not be limited to, the criminal records, if any, of each member of the applicant's governing board and/or its officers and directors who have been convicted of a felony or a crime involving moral turpitude.

(b) The application shall be verified by each member of the governing board of the applicant if an unincorporated association or, if the applicant is a corporation, by each of its officers and all members of its board of directors. The application shall be accompanied by the license fee hereinafter prescribed and by a bond of the applicant in the penal sum of five thousand dollars with a corporate surety authorized to transact business in the State of West Virginia, payable to the State of West Virginia, which bond shall be conditioned on the payment of all fees herein prescribed and on the faithful performance of and compliance with the provisions of this article.

(c) Under no circumstance may any college fraternity or sorority be issued a license to operate a private club.

(d) No license to operate a private club will be issued to applicants who discriminate against any person or group of persons because of race or color of such person or group of persons.


WVC 60-7-4a §60-7-4a. Notice of application for license to be given to municipal clerk or recorder; duties of clerk or recorder; consistency with zoning and community development programs; authority of commissioner.
A person intending to apply for a license to operate a private club under the provisions of this article at any location within a municipality shall file a notice of such intention with the clerk or recorder of such municipality at least ten days prior to filing an application for such a license with the commissioner. Such notice shall include the address and a general description of the premises to be licensed, the food services to be offered and the patron capacity of the club. The clerk or recorder of the municipality shall report such notice to the governing body of such municipality at its next regular meeting or special meeting to be held not sooner than two days thereafter, together with a report of the zoning administrator for such municipality, if there be any as to whether:

(1) The proposed location of said private club is consistent with the zoning ordinances as either a permitted use or a conditional use of such premises; and

(2) The premises are situate in an area designated for the use of community development block grant funds in the municipality, and, if so situate, whether the planned use of the premises is consistent with any plan adopted by the governing body for revitalization or rehabilitation of such area.

Within ten days of such report, the governing body may submit written comment upon such intended use to the commissioner, who shall deny the license upon a finding that the use of the premises is neither a permitted nor a conditional use under the zoning ordinances of such municipality and that the municipality provides within its business zones suitable alternative locations. The commissioner may deny the license upon a finding that such use is incompatible with any plan adopted by the governing body for revitalization or rehabilitation of the area wherein such premises are situate. The municipality shall not unreasonably exclude a use of the premises which is compatible with such plan or zoning ordinance solely because the use includes premises licensed under this article.


WVC 60-7-5 §60-7-5. Investigation by commissioner; issuance or refusal of license; special requirements for clubs at parks and airports; form of license; license valid at one location only; expiration and renewal; transferability.
(a) Upon receipt of the application referred to in section four of this article, together with the accompanying fee and bond, the commissioner shall conduct an investigation to determine the accuracy of the matters contained in such application and whether applicant is a bona fide private club of good reputation in the community in which it shall operate. For the purpose of conducting such investigation, the commissioner may withhold the granting or refusal to grant such license for a period not to exceed thirty days. If it shall appear that such applicant is a bona fide private club, of good reputation in the community in which it shall operate and that there is no false statement contained in such application, the commissioner shall issue a license authorizing the applicant to sell alcoholic liquors as provided in section three of this article, and otherwise shall refuse to issue such license, except that in the case of an application by a corporation or association to operate a private club in connection with:

(1) A state park, the director of the department of natural resources must grant his or her approval before the license can be issued; or

(2) A county or municipal park, or an airport, the authority governing the park or airport must grant its approval before the license can be issued.

A license may not be issued for a private club in any state park unless a dining facility comparable to the dining facility for the proposed private club will be available to serve meals to the general public. A license may not be issued for a private club in any county or municipal park, or an airport, unless a dining facility comparable to the dining facility for the proposed private club will be available to serve meals to the general public.

(b) Upon refusal to issue such license the commissioner shall make and enter an order denying such application, which denial and refusal shall be final unless a hearing is requested in accordance with the provisions of section thirteen of this article. When such refusal or denial becomes final the commissioner shall forthwith refund to the applicant his or her fees and bond accompanying the application.

(c) Such license shall be of such form and design as the commissioner may prescribe by reasonable rule or regulation, and shall authorize the licensee to sell alcoholic liquors at only one location.

(d) Such license shall expire on the thirtieth day of June next following the date of issue and may be renewed upon the same showing as required for the issuance of the initial license, together with the payment of fees and filing of the bond as required by this article.

(e) A license issued under the provisions of this article may not be transferable.


WVC 60-7-6 §60-7-6. Annual license fee; partial fee.
(a) The annual license fee for a license issued under the provisions of this article to a fraternal or veterans organization or a nonprofit social club shall be seven hundred fifty dollars.

(b) The annual license fee for a license issued under the provisions of this article to a private club other than a private club of the type specified in subsection (a) of this section shall be one thousand dollars if such private club has less than one thousand members and two thousand five hundred dollars if such private club has one thousand or more members.

(c) The fee for any such license issued following the first day of January of any year and to expire on the thirtieth day of June of such year shall be one half of the annual license fee prescribed by subsections (a) and (b) of this section six.

(d) All such fees shall be paid by the commissioner to the state treasurer and credited to the general revenue fund of the state.


WVC 60-7-7 §60-7-7. Municipal fee.
Any municipality in this state is hereby authorized to levy a fee for revenue purposes only upon any licensee whose premises are situate within such municipality, which fee shall not exceed one half the amount of the license fee levied by this state under the provisions of section six of this article. Any such municipality is hereby authorized and empowered to enact and adopt ordinances necessary for the collection and enforcement of such fee.


WVC 60-7-8 §60-7-8. Application for permit to hold special nonalcoholic entertainment events for persons under age twenty-one.
(a) A private club, as defined in subsection (a), section two of this article, may make application for a permit to hold nonalcoholic entertainment events for which persons under the age of twenty-one years may be admitted to the premises of such private club. Application for a permit shall be made on a form prescribed by the commissioner and a separate form shall be submitted for each such event. A private club may make application for any number of such events.

(b) Such entertainment events shall be chaperoned.

(c) Private club members may use the club during such events: Provided, That such events are held in sections of the premises which are separate and distinct from sections used by the private members and where any beer or alcoholic beverages are sold.

(d) The commissioner shall promulgate such legislative rules as may be necessary to execute and enforce this section, in accordance with the provisions of article three, chapter twenty-nine-a of this code. The commissioner shall, in such legislative rule or rules, establish criteria for determining those persons who shall act as chaperones at events authorized under the provisions of this section.


WVC 60-7-9 §60-7-9.
Repealed.

Acts, 1986 Reg. Sess., Ch. 153.


WVC 60-7-10 §60-7-10. Duties and powers of commissioner.
The commissioner is hereby authorized:

(a) To enforce the provisions of this article.

(b) To enter the premises of any licensee at reasonable times for the purpose of inspecting the same, and determining the compliance of said licensee with the provisions of this article and any rules and regulations promulgated by the commissioner pursuant to the provisions of this article.

(c) To promulgate such reasonable rules and regulations as may be necessary for the execution and enforcement of the provisions of this article, which may include, but shall not be limited to, the hours during which licensees may sell alcoholic liquors, and the use, handling, service and sale of such alcoholic liquors. Such rules and regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of the code in like manner as if said article three of said chapter twenty-nine-a were set forth in extenso in this subdivision.

(d) To issue subpoenas and subpoenas duces tecum for the purposes of conducting hearings under the provisions of section thirteen of this article, which subpoenas and subpoenas duces tecum shall be issued in the time, for the fees, and shall be enforced in the manner specified in section one, article five, chapter twenty-nine-a of this code with like effect as if said section one were set forth in extenso in this subdivision.

The authority granted in subdivisions (a), (b), and (d) of this section may also be exercised by the duly authorized agents of the commissioner.


WVC 60 - 7 - 11 §60-7-11. Licensee must purchase alcoholic liquors from or through commissioner or retail licensee; exceptions.
(a)(1) All licensees shall purchase all alcoholic liquors sold by them from the West Virginia alcohol beverage control commissioner at prices established by the commissioner for sales of the alcoholic liquors to the public generally or from any retail licensee licensed under the provisions of article three-a of this chapter, except that the licensees may purchase those wines permitted to be sold at retail pursuant to article eight of this chapter from those distributors licensed pursuant to said article at the same prices the distributors sell the wines to retailers licensed pursuant to said article.

(2) A licensee may by contract approved by the commissioner receive deliveries of alcoholic liquor from a retail liquor store, and the provisions of sections twelve and thirteen, article six of this chapter shall not apply to the transportation of that alcoholic liquor.

(b) In all reports filed under section sixteen, article fifteen, chapter eleven of this code, retail licensees licensed under the provisions of article three-a of this chapter shall separately identify the amount of sales tax on sales of liquor to licensees in the manner required by the tax commissioner.

(c) Notwithstanding the provisions of section thirty, article fifteen, chapter eleven of this code to the contrary, the amount of the sales taxes collected by the tax commissioner shall be deposited in a revolving fund account in the state treasurer's office, designated the "drunk driving prevention fund", and administered by the commission on drunk driving prevention, subject to appropriations by the Legislature.


WVC 60-7-12 §60-7-12. Certain acts of licensee prohibited; criminal penalties.
(a) It is unlawful for any licensee, or agent, employee or member thereof, on such licensee's premises to:

(1) Sell or offer for sale any alcoholic liquors other than from the original package or container;

(2) Authorize or permit any disturbance of the peace; obscene, lewd, immoral or improper entertainment, conduct or practice, gambling or any slot machine, multiple coin console machine, multiple coin console slot machine or device in the nature of a slot machine;

(3) Sell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors for or to, or permit the consumption of nonintoxicating beer, wine or alcoholic liquors on the licensee's premises, by any person less than twenty-one years of age;

(4) Sell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors, for or to any person known to be deemed legally incompetent, or for or to any person who is physically incapacitated due to consumption of nonintoxicating beer, wine or alcoholic liquor or the use of drugs;

(5) Sell, give or dispense nonintoxicating beer, wine or alcoholic liquors in or on any licensed premises or in any rooms directly connected therewith, between the hours of three o'clock a.m. and one o'clock p.m. on any Sunday;

(6) Permit the consumption by, or serve to, on the licensed premises any nonintoxicating beer, wine or alcoholic liquors, covered by this article, to any person who is less than twenty-one years of age;

(7) With the intent to defraud, alter, change or misrepresent the quality, quantity or brand name of any alcoholic liquor;

(8) Sell or offer for sale any alcoholic liquor to any person who is not a duly elected or approved dues paying member in good standing of said private club or a guest of such member;

(9) Sell, offer for sale, give away, facilitate the use of or allow the use of carbon dioxide, cyclopropane, ethylene, helium or nitrous oxide for purposes of human consumption except as authorized by the commissioner;

(10) (A) Employ any person who is less than eighteen years of age in a position where the primary responsibility for such employment is to sell, furnish or give nonintoxicating beer, wine or alcoholic liquors to any person;

(B) Employ any person who is between the ages of eighteen and twenty-one who is not directly supervised by a person aged twenty-one or over in a position where the primary responsibility for such employment is to sell, furnish or give nonintoxicating beer, wine or alcoholic liquors to any person; or

(11) Violate any reasonable rule of the commissioner.

(b) It is unlawful for any licensee to advertise in any news media or other means, outside of the licensee's premises, the fact that alcoholic liquors may be purchased thereat.

(c) Any person who violates any of the foregoing provisions is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars, or imprisoned in the county jail for a period not to exceed one year, or both fined and imprisoned.


WVC 60-7-12a §60-7-12a. Unlawful acts by persons.
(a) A person under the age of twenty-one years may not order, pay for, share the cost of or attempt to purchase any nonintoxicating beer, wine or alcoholic liquors from a licensee or consume any nonintoxicating beer, wine or alcoholic liquors purchased from a licensee or possess any nonintoxicating beer, wine or alcoholic liquors purchased from a licensee. Any person under the age of twenty-one years who violates any provisions of this subsection is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed five hundred dollars or imprisoned in the county jail for a period not to exceed seventy-two hours, or both fined and imprisoned, and, in addition to such fine and imprisonment, may, for the first offense, be placed on probation for a period not to exceed one year: Provided, That nothing in this subsection shall prohibit a person who is at least eighteen years of age from purchasing or possessing nonintoxicating beer, wine or alcoholic liquors when he or she is acting upon the request of or under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia alcohol beverage administration while the agency is conducting an investigation or other activity relating to the enforcement of the alcohol beverage control statutes and the rules and regulations of the commissioner.

(b) Any person under the age of twenty-one years who, for the purpose of purchasing nonintoxicating beer, wine, or alcoholic liquors from a licensee, misrepresents his or her age, or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase nonintoxicating beer, wine, or alcoholic liquors from a licensee, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed five hundred dollars or shall be imprisoned in the county jail for a period not to exceed seventy-two hours, or both such fine and imprisonment, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.

(c) Any person who knowingly buys for, gives to or furnishes to anyone under the age of twenty-one, any nonintoxicating beer, wine or alcoholic liquors purchased from a licensee, is guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than five hundred dollars, or imprisoned in the county jail not more than ten days, or both fined and imprisoned.


WVC 60-7-13 §60-7-13. Revocation or suspension of license; monetary penalty; hearing; assessment of costs; establishment of enforcement fund.
(a) Upon a determination by the commissioner that a licensee has: (i) Violated the provisions of article sixteen, chapter eleven, or of this chapter; (ii) acted in such a way as would have precluded initial or renewal licensure; or (iii) violated any rule or order promulgated by the commissioner, the commissioner may impose any one or a combination of the following sanctions:

(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) Any monetary penalty assessed and collected by the commissioner shall be transmitted to the state treasurer for deposit into the state treasury to the credit of a special revenue fund designated "The Alcohol Beverage Control Enforcement Fund", which is hereby created. All moneys collected, received and deposited in the "Alcohol Beverage Control Enforcement Fund" shall be kept and maintained for expenditures by the commissioner for the purpose of enforcement of the statutes and rules pertaining to alcoholic liquor, and shall not be treated by the state treasurer or state auditor as any part of the general revenue of the state. At the end of each fiscal year all funds in the alcohol beverage control enforcement fund in excess of twenty thousand dollars shall be transferred to the general revenue fund.

(c) In addition to the grounds for revocation, suspension or other sanction of a license set forth in subsection (a) of this section, conviction of the licensee of any offense constituting a violation of the laws of this state or of the United States relating to alcoholic liquor, nonintoxicating beer or gambling shall be mandatory grounds for such sanctioning of a license. Conviction of the licensee of any violation of the laws of this state or of the United States relating to prostitution, or the sale, possession or distribution of narcotics or controlled substances, shall be mandatory grounds for revocation of the licensee's license for a period of at least one year.


WVC 60 - 7 - 13 A §60-7-13a. Hearing on sanctioning of license; notice; review of action of commissioner; clerk of court to furnish commissioner copy of order or judgment of conviction of licensee; assessment of costs; procedure for appealing any final order of the commissioner which revokes, suspends, sanctions or denies the issuance or renewal of any license issued under this article.

  (a) The commissioner may not revoke or suspend a license issued pursuant to this article or impose civil penalties authorized under this article unless and until a hearing is held after at least ten days' notice to the licensee of the time and place of the hearing, which notice shall contain a statement or specification of the charges, grounds or reasons for the proposed contemplated action, and which is served upon the licensee as notices under the West Virginia Rules of Civil Procedure or by certified mail, return receipt requested, to the address for which license was issued. At the time and place, designated in the notice, the licensee has the right to appear and produce evidence in his or her behalf, and to be represented by counsel: Provided, That the commissioner may forthwith suspend the license when the commissioner believes the public safety will be adversely affected by the licensee's continued operation.

  (b) The commissioner may summon witnesses in the hearing before him or her, and fees of witnesses summoned on behalf of the state in proceedings to sanction licenses shall be treated as a part of the expenses of administration and enforcement. The fees shall be the same as those in similar hearings in the circuit courts of this state. The commissioner may, upon a finding of violation, assess a licensee a sum, not to exceed $150 per violation, to reimburse the commissioner for expenditures of witness fees, court reporter fees and travel costs incurred in holding the hearing. Moneys so assessed shall be transferred to the Alcohol Beverage Control Enforcement Fund created by section thirteen of this article.

  (c) If, at the request of the licensee or on his or her motion, the hearing is continued and does not take place on the day fixed by the commissioner in the notice of hearing, then the licensee's license may be suspended until the hearing and decision of the commissioner, and in the event of revocation or suspension of the license, upon hearing before the commissioner, the licensee is not permitted to sell alcoholic liquor or nonintoxicating beer pending an appeal as provided by this article. Any person continuing to sell alcoholic liquor or nonintoxicating beer after his or her license has been suspended or revoked, as provided in this section, is guilty of a misdemeanor and, shall be punished as provided in section twelve of this article.

  (d) Notwithstanding the provisions of subsection (b), section four, article five, chapter twenty-nine-a of this code, the action of the commissioner in revoking, suspending, sanctioning or refusing a license is subject to review by the circuit court of Kanawha County or the circuit court in the county where the proposed or licensed premises is located and will or does conduct sales: Provided, That in all other respects, such review shall be conducted in the manner provided in chapter twenty-nine-a of this code. The petition for review must be filed with the circuit court within thirty days following entry of the final order of revocation, suspension, sanction or refusal issued by the commissioner. A licensee obtaining an order for the review is required to pay the costs and fees incident to transcribing, certifying and transmitting the records pertaining to the matter to the circuit court. An application to the Supreme Court of Appeals of West Virginia for a writ of error from any final order of the circuit court in the matter shall be made within thirty days from and after the entry of the final circuit court order.

  (e) All such hearings, upon notice to show cause why license should be revoked, suspended, sanctioned or refused, before the commissioner shall be held in the offices of the commissioner in Charleston, Kanawha County, unless otherwise provided by the commissioner in the notice of hearing. When the hearing is held elsewhere than in the commissioner's office, the licensee may be required to make deposits of the estimated costs of the hearing.

  (f) Whenever any licensee has been convicted of an offense constituting a violation of the laws of this state or of the United States relating to alcoholic liquor, or nonintoxicating beer, and the conviction has become final, the clerk of the court in which the licensee has been convicted shall forward to the commissioner a certified copy of the order or judgment of conviction if the clerk has knowledge that the person convicted is a licensee, together with the certification of the clerk that the conviction is final. The commissioner shall report violations of any of the provisions of section twelve or twelve-a of this article to the prosecuting attorney of the county in which the licensed premises is located.
WVC 60-7-14 §60-7-14. Forfeiture of bond; collection.
On conviction of a violation of any provision of this article or upon the revocation of a license in accordance with section thirteen of this article, which conviction or revocation has become final, the licensee or former licensee, as the case may be, shall forfeit his bond required by section four of this article. The penal sum of said bond shall forthwith be paid to the state treasurer to be credited to the general revenue fund of this state. Such sum may be collected by an action at law or other appropriate remedy.


WVC 60-7-15 §60-7-15. License for the sale of nonintoxicating beer.
Notwithstanding any other provision of this code to the contrary, no licensee shall be prohibited from obtaining a license for the sale of nonintoxicating beer under the provisions of article sixteen of chapter eleven of this code because such licensee sells alcoholic liquors, permits the consumption of alcoholic liquor on his premises, or is the holder of a federal tax stamp permitting the sale of such alcoholic liquor.


WVC 60-7-16 §60-7-16. Severability.
If any article, section, subsection, provision, clause or phrase of this chapter or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other articles, sections, subsections, provisions, clauses or phrases or applications of the chapter, and to this end each and every article, section, subsection, provision, clause and phrase of this chapter is declared to be severable. The Legislature hereby declares that it would have enacted the remaining articles, sections, subsections, provisions, clauses and phrases of this chapter even if it had known that any articles, sections, subsections, provisions, clauses and phrases thereof would be declared to be unconstitutional or invalid, and that it would have enacted this chapter even if it had known that the application thereof to any person or circumstance would be held to be unconstitutional or invalid.


WVC 60-7-17 §60-7-17. Repealer.
All parts of this code inconsistent with the provisions of this article are hereby repealed to the extent of such inconsistency.


WVC -8- ARTICLE 8. SALE OF WINES.


WVC 60 - 8 - 1 §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, 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 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. In the event of any inconsistency of any 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) 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 the provisions of this chapter exclusive of this article may be given application without creating an inconsistency with the provisions of this article, the provisions of this chapter, exclusive of this article, shall apply to the same extent as if this article did not exist.


WVC 60 - 8 - 2

PART II. SALE OF WINE GENERALLY.

§60-8-2. Definitions.

     Unless the context in which used clearly requires a different meaning, as used in this article:

     "Commissioner" or "commission" means the West Virginia Alcohol Beverage Control Commissioner.

     "Distributor" means any person whose principal place of business is within the State of West Virginia who makes purchases from a supplier to sell or distribute wine to retailers, grocery stores, private wine bed and breakfasts, private wine restaurants, private wine spas, private clubs or wine specialty shops and that sells or distributes nonfortified dessert wine, port, sherry and Madeira wines to wine specialty shops, private wine restaurants, private clubs or retailers under authority of this article and maintains a warehouse in this state for the distribution of wine. For the purpose of a distributor only, the term "person" means and includes an individual, firm, trust, partnership, limited partnership, limited liability company, association or corporation. Any trust licensed as a distributor or any trust that is an owner of a distributor licensee, and the trustee or other persons in active control of the activities of the trust relating to the distributor license, is liable for acts of the trust or its beneficiaries relating to the distributor license that are unlawful acts or violations of this article, notwithstanding the liability of trustees in article ten, chapter forty-four-d of this code.

     "Fortified wine" means any wine to which brandy or other alcohol has been added and shall include dessert wines which are not fortified having an alcohol content by volume of at least fourteen and one-tenths percent and not exceeding sixteen percent.

     "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 $500 and an average monthly inventory (exclusive of inventory of wine) of not less than $3,000. 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 $3,000 and an average monthly inventory (exclusive of inventory of wine) of not less than $3,000.

     "Licensee" means the holder of a license granted under the provisions of this article.

     "Person" means and includes an individual, firm, partnership, limited partnership, limited liability company, association or corporation.

     "Private wine bed and breakfast" means any business with the sole purpose of providing, in a residential or country setting, a hotel, motel, inn or other such establishment properly zoned as to its municipality or 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 provides meals on its premises to its members and their guests; (2) 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) 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 wine restaurant" means a restaurant which: (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) 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; (3) 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. Such private clubs that meet the private wine restaurant requirements numbered (1), (2) and (3) in this definition shall be considered private wine restaurants.

     "Private wine spa" means any business with the sole purpose of providing commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services and relaxation, and may be also a licensed massage parlor or a salon with licensed beauticians or stylists, which business also: (1) Is a partnership, limited partnership, corporation, unincorporated association or other business entity which as part of its general business purpose provides meals on its premises to its members and their guests; (2) 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 to its members and their guests when such sale accompanies the serving of food or meals; and (3) 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.

     "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.

     "Supplier" means any manufacturer, producer, processor, winery, farm winery, national distributor or other supplier of wine who sells or offers to sell or solicits or negotiates the sale of wine to any licensed West Virginia distributor.

     "Tax" includes within its meaning interest, additions to tax and penalties.

     "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.

     "Varietal wine" means any wine labeled according to the grape variety from which such wine is made.

     "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.

     "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 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.

     "Wine specialty shop" means a retailer who shall deal principally in the sale of table wine, nonfortified dessert wines, wine accessories and food or foodstuffs normally associated with wine and: (1) Who shall maintain a representative number of such wines for sale in his or her 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) who, any other provisions of this code to the contrary notwithstanding, may maintain an inventory of port, sherry and Madeira 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.
WVC 60 - 8 - 3 §60-8-3. Licenses; fees; general restrictions.

     (a) No person may engage in business in the capacity of 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, nor shall a person continue to engage in any activity after his or her license has expired, been suspended or revoked. No person may be licensed simultaneously as a distributor and a retailer. No person, except for a winery or farm winery, may be licensed simultaneously as a supplier and a retailer. No person may be licensed simultaneously as a supplier and a private wine bed and breakfast, private wine restaurant or a private wine spa. No person may be licensed simultaneously as a distributor and a private wine bed and breakfast, a private wine restaurant or a private wine spa. No person may be licensed simultaneously as a retailer and a private wine bed and breakfast, a private wine restaurant or a private wine spa.

     (b) The commissioner shall collect an annual fee for licenses issued under this article as follows:

     (1) One hundred fifty dollars per year for a supplier's license;

     (2) Twenty-five hundred dollars per year for a distributor's license and each separate warehouse or other facility from which a distributor sells, transfers or delivers wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $2,500 as herein provided;

     (3) One hundred fifty dollars per year for a retailer's license;

     (4) Two hundred fifty dollars per year for a wine specialty shop license, in addition to any other licensing fees paid by a winery or retailer holding a license, except for the amount of the license fee and the restriction to sales of winery or farm winery wines, a winery or farm winery acting as a wine specialty shop retailer is subject to all other provisions of this article which are applicable to a wine specialty shop retailer as defined in section two of this article;

     (5) One hundred fifty dollars per year for a wine tasting license;

     (6) One hundred fifty dollars per year for a private wine bed and breakfast license and each separate bed and breakfast from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $150 as herein provided;

     (7) Two hundred fifty dollars per year for a private wine restaurant license and each separate restaurant from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $250 as herein provided;

     (8) One hundred fifty dollars per year for a private wine spa license and each separate private wine spa from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $150 as herein provided;

     (9) One hundred fifty dollars per year for a wine sampling license issued for a wine specialty shop under subsection (n) of this section;

     (10) No fee shall be charged for a special one-day license under subsection (p) of this section or for a heritage fair and festival license under subsection (q) of this section; and

     (11) One hundred fifty dollars per year for a direct shipper's license for a licensee who sells and ships only wine and $250 per for a direct shipper's license who ships and sells wine, nonfortified dessert wine, port, sherry or Madeira wines.

     (12) Three hundred dollars per year for a multicapacity winery or farm winery license which shall enable the holder to operate as a retailer, wine specialty shop, supplier and direct shipper without obtaining an individual license for each capacity.

     (c) The license period shall begin on July 1 of each year and end on June 30 of the following year and if granted for a less period, the same shall be computed semiannually in proportion to the remainder of the fiscal year.

     (d) No retailer may be licensed as a private club as provided by article seven of this chapter, except as provided by subsection (k) of this section.

     (e) No retailer may be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven of this code: Provided, That a delicatessen, a caterer or party supply store which is a grocery store as defined in section two of this article and which is licensed as a Class A retail dealer in nonintoxicating beer may be a retailer under this article: Provided, however, That any delicatessen, caterer or party supply store licensed in both capacities must maintain average monthly sales exclusive of sales of wine and nonintoxicating beer which exceed the average monthly sales of nonintoxicating beer.

     (f) A wine specialty shop under this article may also hold a wine tasting license authorizing the retailer to serve complimentary samples of wine in moderate quantities for tasting. Such wine specialty shop shall organize a wine taster's club, which has at least fifty duly elected or approved dues-paying members in good standing. Such club shall meet on the wine specialty shop's premises not more than one time per week and shall either meet at a time when the premises are closed to the general public, or shall meet in a separate segregated facility on the premises to which the general public is not admitted. Attendance at tastings shall be limited to duly elected or approved dues-paying members and their guests.

     (g) A retailer who has more than one place of retail business shall obtain a license for each separate retail establishment. A retailer's license may be issued only to the proprietor or owner of a bona fide grocery store or wine specialty shop.

     (h) The commissioner may issue a special license for the retail sale of wine at any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission. Such special license shall be issued for a term of no longer than ten consecutive days and the fee therefor shall be $250 regardless of the term of the license unless the applicant is the manufacturer of said wine on a winery or a farm winery as defined in section five-a, article one of this chapter, in which event the fee shall be $50 if the event is held on the premises of the winery or farm winery. The application for the license shall contain information as the commissioner may reasonably require and shall be submitted to the commissioner at least thirty days prior to the first day when wine is to be sold at the festival or fair. A winery or a farm winery licensed under this subsection may exhibit, conduct tastings or sell samples, not to exceed a reasonable serving of three ounces, and may sell wine samples for consumption on the premises during the operation of a festival or fair: Provided, That for licensed wineries or farm wineries at a licensed festival or fair the tastings, samples and off-premises sales shall occur under the hours of operation as required in this article, except that on Sunday tastings, samples and off-premises sales are unlawful between the hours of 2:00 a. m. and 10:00 a. m. A special license issued other than to a winery or a farm winery may be issued to a "wine club" as defined herein below. The festival or fair committee or the governing body shall designate a person to organize a club under a name which includes the name of the festival or fair and the words "wine club". The license shall be issued in the name of the wine club. A licensee may not commence the sale of wine as provided in this subsection until the wine club has at least fifty dues-paying members who have been enrolled and to whom membership cards have been issued. Thereafter, new members may be enrolled and issued membership cards at any time during the period for which the license is issued. A wine club licensed under the provisions of this subsection may sell wine only to its members, and in portions not to exceed eight ounces per serving. The sales shall take place on premises or in an area cordoned or segregated so as to be closed to the general public, and the general public shall not be admitted to the premises or area. A wine club licensee under the provisions of this subsection shall be authorized to serve complimentary samples of wine in moderate quantities for tasting.

     A license issued under the provisions of this subsection and the licensee holding the license shall be subject to all other provisions of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule, regulation or order provide for certain waivers or exceptions with respect to the provisions, rules, regulations or orders as the circumstances of each festival or fair may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding the provisions of section twenty- seven and twenty-eight of this article: Provided, however, That under no circumstances shall the provisions of subsection (c) or (d), section twenty of this article be waived nor shall any exception be granted with respect thereto.

     A license issued under the provisions of this subsection and the licensee holding the license is not subject to the provisions of subsection (g) of this section.

     (i) (A) The commissioner may issue a special license for the retail sale of wine in a professional baseball stadium. A license to sell wine granted pursuant to this subsection entitles the licensee to sell and serve wine, for consumption in a professional baseball stadium. For the purpose of this subsection, "professional baseball stadium" means a facility constructed primarily for the use of a major or minor league baseball franchisee affiliated with the National Association of Professional Baseball Leagues, Inc., or its successor, and used as a major or minor league baseball park. Any special license issued pursuant to this subsection shall be for a term beginning on the date of issuance and ending on the next following June 30, and its fee is $250 regardless of the length of the term of the license. The application for the special license shall contain information as the commissioner may reasonably require and must be submitted to the commissioner at least thirty days prior to the first day when wine is to be sold at the professional baseball stadium. The special license may be issued in the name of the baseball franchisee or the name of the primary food and beverage vendor under contract with the baseball franchisee. These sales must take place within the confines of the professional baseball stadium, provided that the exterior of the area where wine sales may occur are surrounded by a fence or other barrier prohibiting entry except upon the franchisee's express permission, and under the conditions and restrictions established by the franchisee, so that the wine sales area is closed to free and unrestricted entry by the general public.

     (B) A license issued under this subsection and the licensee holding the license is subject to all other provisions of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule or order grant certain waivers or exceptions to those rules or orders as the circumstances of each professional baseball stadium may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding sections twenty-seven and twenty- eight of this article: Provided, however, That under no circumstances may subsection (c) or (d), section twenty of this article be waived nor shall any exception be granted concerning those subsections.

     (C) The commissioner has the authority to propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement this subsection.

     (j) A license to sell wine granted to a private wine bed and breakfast, private wine restaurant, private wine spa or a private club under the provisions of this article entitles the operator to sell and serve wine, for consumption on the premises of the licensee, when the sale accompanies the serving of food or a meal to its members and their guests in accordance with the provisions of this article: Provided, That a licensed private wine bed and breakfast, private wine restaurant, private wine spa or a private club may permit a person over twenty-one years of age to purchase wine, consume wine and recork or reseal, using a tamper resistant cork or seal, up to two separate bottles of unconsumed wine in conjunction with serving of food or a meal to its members and their guests in accordance with the provisions of this article and in accordance with regulations promulgated by the commissioner for the purpose of consumption of said wine off premises: Provided, however, That for this article, food or a meal provided by the private licensee means that the total food purchase, excluding beverage purchases, taxes, gratuity or other fees is at least $15: Provided further, That a licensed private wine restaurant or a private club may offer for sale for consumption off the premises, sealed bottles of wine to its customers provided that no more than one bottle is sold per each person over twenty-one years of age, as verified by the private wine restaurant or private club, for consumption off the premises. Such licensees are authorized to keep and maintain on their premises a supply of wine in quantities as may be appropriate for the conduct of operations thereof. Any sale of wine so made shall be subject to all restrictions set forth in section twenty of this article. A private wine restaurant may also be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven of this code.

     (k) With respect to subsections (h), (i), (j), (o) and (p) of this section, the commissioner shall promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code with regard to the form of the applications, the suitability of both the applicant and location of the licensed premises and other legislative rules deemed necessary to carry the provisions of the subsections into effect.

     (l) The commissioner shall promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code to allow restaurants to serve wine with meals, and to sell wine by the bottle for off-premises consumption as provided in subsection (j) of this section. Each restaurant so licensed shall be charged an additional $100 per year fee.

     (m) The commissioner shall establish guidelines to permit wines to be sold in all stores licensed for retail sales.

     (n) Wineries and farm wineries may advertise off premises as provided in section seven, article twenty-two, chapter seventeen of this code.

     (o) A wine specialty shop under this article may also hold a wine sampling license authorizing the wine specialty shop to conduct special wine sampling events at a licensed wine specialty shop location during regular hours of business. The wine specialty shop may serve up to three complimentary samples of wine, consisting of no more than one ounce each, to any one consumer in one day. Persons serving the complimentary samples must be twenty- one years of age and an authorized representative of the licensed wine specialty shop, winery, farm winery or a representative of a distributor or registered supplier. Distributor and supplier representatives attending wine sampling events must be registered with the commissioner. No licensee, employee or representative may furnish, give or serve complimentary samples of wine to any person less than twenty-one years of age or to a person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs. The wine specialty shop shall 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. Licensees must purchase all wines used during these events from a licensed farm winery or a licensed distributor.

     (p) The commissioner may issue special one-day licenses to duly organized, nonprofit corporations and associations allowing the sale and serving of wine when raising money for athletic, charitable, educational or religious purposes. The license application shall contain information as the commissioner may reasonably require and shall be submitted to the commissioner at least thirty days prior to the event. Wines used during these events may be donated by or purchased from a licensed retailer, a distributor or a farm winery. Under no circumstances may the provision of subsection (c), section twenty of this article be waived nor may any exception be granted with respect thereto.

     (q) The commissioner may issue special licenses to heritage fairs and festivals allowing the sale, serving and sampling of wine from a licensed farm winery. The license application shall contain information required by the commissioner and shall be submitted to the commissioner at least thirty days prior to the event. Wines used during these events may be donated by or purchased from a licensed farm winery. Under no circumstances may the provision of subsection (c), section twenty of this article be waived nor may any exception be granted with respect thereto. 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 subsection.

     (r)(1) The commissioner may issue a special license for the retail sale of wine in a college stadium. A license to sell wine granted pursuant to this subsection entitles the licensee to sell and serve wine for consumption in a college stadium. For the purpose of this subsection, "college stadium" means a facility constructed primarily for the use of a Division I college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer or other Division I sports stadium. A special license issued pursuant to this subsection shall be for a term beginning on the date of its issuance and ending on the next following June 30, and its fee is $250 regardless of the length of the term of the license. The application for the special license shall contain information as the commissioner may reasonably require and must be submitted to the commissioner at least thirty days prior to the first day when wine is to be sold. The special license may be issued in the name of the National Collegiate Athletic Association Division I college or university or the name of the primary food and beverage vendor under contract with that college or university. These sales must take place within the confines of the college stadium:  Provided, That the exterior of the area where wine sales may occur are surrounded by a fence or other barrier prohibiting entry except upon the college or university's express permission, and under the conditions and restrictions established by the college or university, so that the wine sales area is closed to free and unrestricted entry by the general public.

     (2) A license issued under this subsection and the licensee are subject to the other requirements of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule or order grant certain waivers or exceptions to those rules or orders as the circumstances of each the college stadium may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding sections twenty-seven and twenty-eight of this article: Provided, however, That subsection (c) or (d), section twenty of this article may not be waived, nor shall any exception be granted concerning those subsections.

     (3) The commissioner may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement this subsection.
WVC 60 - 8 - 4 §60-8-4. Liter tax.
There is hereby levied and imposed on all wine sold after the first day of July, two thousand seven, by suppliers to distributors, and including all wine sold and sent to West Virginia adult residents from direct shippers, except wine sold to the commissioner, a tax of twenty-six and four hundred six-thousandths cents per liter.

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 commissioner showing the identity of the purchaser, the quantity, label and alcoholic content of wine sold by the supplier to West Virginia distributors or the direct shipper to West Virginia adult residents during the preceding month and at the same time shall pay the tax imposed by this article on the wine sold to the distributor or the West Virginia adult residents during the preceding month to the Tax Commissioner.

The reports 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 considered tax returns covered by the provisions of article ten, chapter eleven of this code. Failure to timely file the tax returns within five calendar days of the sixteenth day of each month will also subject a supplier, distributor and direct shipper to penalties under section eighteen of this article.

No wine imported, sold or distributed in this state or sold and shipped to this state by a direct shipper shall be subject to more than one liter tax.


WVC 60 - 8 - 5 §60-8-5. Refund or credit of taxes.
The Tax Commissioner shall refund, or credit on a subsequent return, any tax which has been erroneously or illegally collected. In the event that a licensee, while the owner of wine on which the tax imposed by this article has been paid, loses such wine through fire or casualty, other than breakage occurring on the premises of the licensee because such wine has been declared by the commissioner to be unfit for sale and the amount of tax paid exceeds fifty dollars, the Tax Commissioner shall refund the tax paid. The commissioner shall promulgate regulations establishing the procedure and nature of proof required in case of any claim for refund or credit.


WVC 60 - 8 - 6 §60-8-6. License or registration required for sale or shipment of wine; shipment of limited quantities of wine to adult residents permitted.
(a) Except as to the commissioner and except as provided in subsection (b) of this section, no person may offer for sale or sell wine in this state, or offer wine for shipment into this state, except to a distributor who is duly licensed under this article. Every person, whether resident or nonresident in this state, who is engaged in or desires to engage in the sale or shipment of wine to a distributor for resale under this article shall, prior to engaging in such activities, register with the commissioner. If any such person violates the provisions of this article, he shall not be permitted to sell, ship or deliver any wine to a distributor or to the commissioner, or otherwise engage in the wine business in this state for a period of one year from the date a notice is mailed to such person by the commissioner of the fact that such person has violated the provisions of this article. During such one-year period, it shall be unlawful for any distributor within this state to buy or receive wine from such person or to have any dealings with such person with respect thereto. Hearings and appeals on such 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.


WVC 60 - 8 - 6 A §60-8-6a. Direct shipper's license.
(a) Before sending any shipment of wine to a resident of West Virginia, the direct shipper must first:

(1) File a license application with the commissioner with the appropriate background check information, using forms required by the commissioner. Criminal background checks will not be required of applicants licensed in their state of domicile who can provide a certificate of good standing from their 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 fee;

(3) Obtain a business registration number from the Tax Commissioner;

(4) Register with the office of the Secretary of State, if a corporation;

(5) Provide the commissioner a true copy of its current alcoholic beverage license issued in the state of domicile, proving that the direct shipper is licensed in its state of domicile as a winery, farm winery, supplier or retailer of wine;

(6) Obtain from the commissioner a direct shipper's license;

(7) Submit to the commissioner a list of all brands of wine to be shipped to West Virginia residents; and

(8) Meet all other licensing requirements of this chapter and provide any other information that the commissioner may reasonably require.

(b) All direct shipper licensees shall:

(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;

(2) Not ship to any address in an area identified by the commissioner as a "dry" or local option area where it is unlawful to sell wine or alcoholic liquors;

(3) Not ship to any licensed suppliers, distributors, retailers, private wine bed and breakfasts, private wine restaurants, private wine spas or wine specialty shops;

(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 deemed to have consented to the jurisdiction of the commissioner or any other state agency, the Kanawha County circuit court located in Charleston, West Virginia, concerning enforcement of this article and any other related laws, 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) 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 suspension, 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 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 any punishment or remedy, criminal or civil, any person who knowingly makes, participates in, transports, imports or receives such a direct shipment constitutes an act that is an unfair trade practice.


WVC 60 - 8 - 7 §60-8-7. Records; inspection.
Every person who sells or ships wine as a direct shipper to West Virginia adult residents or who sells or ships wine to a distributor, and every distributor shall maintain records of all sales, shipments and deliveries, including invoices, records, receipts, bills of lading and other pertinent papers required by the commissioner. All such records shall be preserved for at least two years. The Tax Commissioner or the commissioner, or both, may inspect the books, accounts and records of any licensee and examine, under oath, any officer, agent or employee of any licensee or any person engaged in the business of selling, shipping or delivering wine to a distributor. The Tax Commissioner or the commissioner, or both, may require the production, within this state at the time and place the Tax Commissioner or the commissioner, or both, may designate, of any books, accounts, papers or records kept within or without the state, or verified copies in lieu thereof, in order that an examination thereof may be made by the Tax Commissioner, the commissioner or their duly designated agents.


WVC 60-8-8 §60-8-8.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-8-9 §60-8-9.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-8-10 §60-8-10.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-8-11 §60-8-11.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-8-12 §60-8-12.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-8-13 §60-8-13.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60-8-14 §60-8-14.
Repealed.

Acts, 1983 Reg. Sess., Ch. 9.


WVC 60-8-15 §60-8-15.
Repealed.

Acts, 1991 Reg. Sess., Ch. 118.


WVC 60 - 8 - 16 §60-8-16. Application for license.

     (a) Any person desiring a license under this article shall file a written application for a license with the commissioner and in the application shall state under oath:

     (1) The name of the applicant, including his or her trade name if any, his or her address and the length of his or her residence within this state;

     (2) The address of the place of business for which the license is desired, or other description that definitely locates it; and that the place of business conforms to all health and fire laws and regulations applicable thereto;

     (3) The name of the owner of the premises upon which the business is to be conducted and, if the owner is not the applicant, that such applicant is the bona fide lessee of the business;

     (4) If the application is for a retailer's license, that the applicant is the proprietor or owner of a bona fide grocery store, private wine bed and breakfast, private wine restaurant, private wine spa or wine specialty shop;

     (5) That the applicant intends to carry on the business authorized by the license for himself or herself or under his or her immediate supervision or direction;

     (6) That the applicant is a citizen of the United States;

     (7) That the applicant is an actual bona fide resident of the State of West Virginia, except for those applicants applying for a supplier's license or a direct shipper's license;

     (8) That the applicant is not less than eighteen years of age;

     (9) That the applicant has not been convicted of a felony or other crime involving moral turpitude within the three years next preceding the filing of the application; and that he or she has not, within the two years next preceding the filing of the application, been convicted of violating the liquor laws of any state or of the United States;

     (10) That the applicant has not during the five years next preceding the date of said application had any license revoked under this chapter or under the liquor laws of any other state;

     (11) If the applicant is a firm, association, partnership, limited partnership, limited liability company or corporation, the application shall state the matters required in subdivisions (6), (7), (8), (9) and (10), with respect to each of the members thereof, and each of said members must meet all the requirements in said subdivisions;

     (12) If the applicant is a corporation, organized or authorized to do business in this state, the application shall state the matters required in subdivisions (6), (7), (8), (9) and (10), with respect to each of the officers and directors thereof, and any stockholder owning twenty percent or more of the stock of such corporation and the persons who conduct and manage the licensed premises for the corporation. Each of said individuals must meet all the requirements provided in those subdivisions except that the requirements as to citizenship and residence shall not apply to the officers, directors and stockholders of a corporation applying for a retailer's license; and

     (13) If the applicant is a trust or has a trust as an owner, the trustees or other persons in active control of the activities of the trust relating to the license shall provide a certification of trust as described in section one thousand thirteen, article ten, chapter forty-four-d of this code. This certification of trust shall include the excerpts described in subsection (e), section one thousand thirteen, article ten, chapter forty-four-d of this code and shall further state, under oath, the names, addresses, Social Security numbers and birth dates of the beneficiaries of the trust and certify that the trustee and beneficiaries are twenty-one years of age or older. If a beneficiary is not twenty-one years of age, the certification of trust must state that the beneficiary's interest in the trust is represented by a trustee, parent or legal guardian who is twenty-one years of age and who will direct all actions on behalf of the beneficiary related to the trust with respect to the distributor until the beneficiary is twenty-one years of age. Any beneficiary who is not twenty-one years of age or older shall have his or her trustee, parent or legal guardian include in the certification of trust and state under oath his or her name, address, social security number and birth date.

     (14) Any other information that the commissioner may reasonably require.

     The foregoing statements required in an application are mandatory prerequisites for the issuance of a license.

     The application must be verified by the owner, or in the case of a firm, partnership, limited partnership, limited liability company, association or trust, the members, officers, trustees or other persons in active control of the activities of the limited liability company, association or trust relating to the license. The application of a corporation applying for a retailer's license need be verified only by its president or vice president.

     (b) In the case of an applicant that is a trust or has a trust as an owner, a distributor license may be issued only upon submission by the trustees or other persons in active control of the activities of the trust relating to the distributor license of a true and correct copy of the written trust instrument to the commissioner for his or her review. Notwithstanding any provision of law to the contrary, the copy of the written trust instrument submitted to the commissioner pursuant to this section is confidential and is not a public record and is not available for release pursuant to the West Virginia Freedom of Information Act codified in article one, chapter twenty-nine-b of this code.
WVC 60-8-17 §60-8-17. License issuance or refusal; terms of license.
(a) Upon receipt of the application, fee, and bond if required, the commissioner shall conduct such investigation as he may deem necessary to determine the accuracy of the matters contained in the application. For the purposes of conducting such investigation, the commissioner may withhold the granting or refusal to grant a license for a period not to exceed thirty days. If it appears that there is no false statement contained in the application and that the issuance of the license would not be in conflict with any of the provisions of this chapter, the commissioner shall issue the license, and otherwise shall refuse to issue such license.

(b) The commissioner shall refuse the license of any applicant if he finds that such applicant is not a suitable person or that the place of business of such applicant is not a suitable place or that such applicant has not complied with the provisions of this chapter. Upon refusal to issue such license, the commissioner shall enter an order refusing such application, which refusal is final unless a hearing is requested in accordance with the provisions of section eighteen of this article. When such refusal becomes final the commissioner shall forthwith refund to the applicant his fees and bond accompanying said application.

(c) Such license shall expire on the thirtieth day of June next following the date it was issued and may be renewed upon the same showing as required for the issuance of the initial license, together with the payment of fee and filing of any bond required by this article.

(d) Such license shall not be transferred to another person, but the location of the premises to which the license relates may be changed with the written consent of the commissioner if the new location is such as would satisfy the requirements of this article upon an initial application.


WVC 60 - 8 - 18 §60-8-18. Revocation, suspension and other sanctions which may be imposed by the commissioner upon the licensee; procedure for appealing any final order of the commissioner which revokes, suspends, sanctions or denies the issuance or renewal of any license issued under this article.

          (a) The commissioner may on his or her own motion, or shall on the sworn complaint of any person, conduct an investigation to determine if any provisions of this article or any rule promulgated or any order issued by the commissioner has been violated by any licensee. After investigation, the commissioner may impose penalties and sanctions as set forth below.

          (1) If the commissioner finds that the licensee has violated any provision of this article or any rule promulgated or order issued by the commissioner, or if the commissioner finds the existence of any ground on which a license could have been refused, if the licensee were then applying for a license, the commissioner may:

          (A) Revoke the licensee's license;

          (B) Suspend the licensee's license for a period determined by the commissioner not to exceed twelve months; or

          (C) Place the licensee on probation for a period not to exceed twelve months; and

          (D) Impose a monetary penalty not to exceed $1,000 for each violation where revocation is not imposed.

          (2) If the commissioner finds that a licensee has willfully violated any provision of this article or any rule promulgated or any order issued by the commissioner, the commissioner shall revoke the licensee's license.

          (b) If a supplier or distributor fails or refuses to keep in effect the bond required by section twenty-nine of this article, the commissioner shall automatically suspend the supplier or distributor's license until the bond required by section twenty of this article is furnished to the commissioner, at which time the commissioner shall vacate the suspension.

          (c) Whenever the commissioner refuses to issue a license, or suspends or revokes a license, places a licensee on probation or imposes a monetary penalty, he or she shall enter an order to that effect and cause a copy of the order to be served in person or by certified mail, return receipt requested, on the licensee or applicant.

          (d) An applicant or licensee, as the case may be, adversely affected by the order has a right to a hearing before the commissioner if a written demand for hearing is served upon the commissioner within ten days following the receipt of the commissioner's order by the applicant or licensee. Timely service of a demand for a hearing upon the commissioner operates to suspend the execution of the order with respect to which a hearing has been demanded, except an order suspending a license under the provisions of subsection (b) of this section. The person demanding a hearing shall give security for the cost of the hearing in a form and amount as the commissioner may reasonably require. If the person demanding the hearing does not substantially prevail in the hearing or upon judicial review thereof as provided in subsections (g) and (h) of this section, then the costs of the hearing shall be assessed against him or her by the commissioner and may be collected by an action at law or other proper remedy.

          (e) Upon receipt of a timely served written demand for a hearing, the commissioner shall immediately set a date for the hearing and notify the person demanding the hearing of the date, time and place of the hearing, which shall be held within thirty days after receipt of the demand. At the hearing the commissioner shall hear evidence and thereafter enter an order supporting by findings of facts, affirming, modifying or vacating the order. Any such order is final unless vacated or modified upon judicial review thereof.

          (f) The hearing and the administrative procedure prior to, during and following the hearing shall be governed by and in accordance with the provisions of article five, chapter twenty- nine-a of this code.

          (g) Notwithstanding the provisions of subsection (b), section four, article five, chapter twenty-nine-a of this code, an applicant or licensee adversely affected by a final order entered following a hearing has the right of judicial review of the order code in the circuit court of Kanawha County or the circuit court in the county where the proposed or licensed premises is located and will or does conduct sales: Provided, That in all other respects, such review shall be conducted in the manner provided in chapter twenty-nine-a of this code. The petition for the review must be filed with the circuit court within thirty days following entry of the final order issued by the commissioner. An applicant or licensee obtaining judicial review is required to pay the costs and fees incident to transcribing, certifying and transmitting the records pertaining to the matter to circuit court.

          (h) The judgment of the circuit court reviewing the order of the commissioner is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

          (i) Legal counsel and services for the commissioner in all proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants and in any proceedings in any circuit court by the prosecuting attorney of that county as well, all without additional compensation.
WVC 60 - 8 - 19 §60-8-19. To whom licensed manufacturer may sell.
A licensed manufacturer who is licensed as a supplier of wine, as defined in this article, may sell such wines in this state only to the commissioner and to distributors 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.


WVC 60 - 8 - 20 §60-8-20. Unlawful acts generally.
It shall be unlawful:

(a) For a supplier or distributor to sell or deliver wine purchased or acquired from any source other than a person registered under the provisions of section six of this article or 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, his or her servants, agents or employees to sell, furnish or give wine to any person less than twenty-one years of age, or to a mental incompetent or person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs: 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 sell or deliver wine purchased or acquired from any source other than a distributor or farm winery licensed in this state: Provided, however, That nothing herein is considered to prohibit sales of convenience between distributors licensed in this state wherein one distributor sells, transfers or delivers to another distributor a particular brand or brands for sale at wholesale, of which brand or brands the other distributor has been authorized 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 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.


WVC 60-8-20a §60-8-20a. Unlawful acts by persons.
(a) Any person under the age of twenty-one years who purchases, consumes, sells, possesses or serves wine or other alcoholic liquor is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed five hundred dollars or shall be incarcerated in the county jail for a period not to exceed seventy-two hours, or both fined and imprisoned, or, in lieu of such fine and incarceration, may, for the first offense, be placed on probation for a period not to exceed one year.

Nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be deemed to prohibit any person who is at least eighteen years of age from serving in the lawful employment of any licensee, which may include the sale or delivery of wine as defined in this article. Further, nothing in this article, nor any rule or regulation of the commissioner, shall prevent or be deemed to prohibit any person who is less than eighteen but at least sixteen years of age from being employed by 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: Provided, That such person shall not sell or deliver wine or alcoholic liquor.

Nothing in this subsection shall prohibit a person who is at least eighteen years of age from purchasing or possessing wine or alcoholic liquor when he or she is acting upon the request of or under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia alcohol beverage administration while the agency is conducting an investigation or other activity relating to the enforcement of the alcohol beverage control statutes and the rules and regulations of the commissioner.

(b) Any person under the age of twenty-one years who, for the purpose of purchasing wine or other alcoholic liquors from a licensee, misrepresents his or her age, or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase wine or other alcoholic liquors, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed fifty dollars or shall be imprisoned in the county jail for a period not to exceed seventy-two hours, or both such fine and imprisonment, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.

(c) Any person who shall knowingly buy for, give to or furnish wine or other alcoholic liquors from any source to anyone under the age of twenty-one to whom they are not related by blood or marriage, is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars or shall be imprisoned in the county jail for a period not to exceed ten days, or both such fine and imprisonment.


WVC 60-8-21 §60-8-21. Sale in sealed, labeled packages required.
All wines sold pursuant to this article, except that sold pursuant to the provisions by article seven of this chapter, shall be sold only in sealed packages, bearing such seals and labels as the commissioner may require. A manufacturer of wine offered for sale by any licensee shall attach to each bottle a special label bearing an accurate description of the contents of the bottle in such form and detail as the commissioner may require.


WVC 60 - 8 - 22 §60-8-22. Sales on credit prohibited; exception.
It shall be unlawful for a distributor to sell or offer to sell, or a retailer to purchase or receive, any wine except on a cash basis and no right of action exists to collect any claims for credit extended contrary to the provisions of this subdivision: Provided, That nothing herein prohibits, as a credit on any subsequent sale, the crediting of the purchase price charged for wine returned by the purchaser because of damage, spoilage, erroneous shipments or orders and other such reasons customary in the trade: Provided, however, That a distributor may accept an electronic transfer of funds if the transfer of funds is initiated by an irrevocable payment order on the invoiced amount for the wine. The cost of the electronic fund transfer must be borne by the retailer and the distributor must initiate the transfer no later than noon of one business day after the delivery.


WVC 60 - 8 - 23 §60-8-23. Duties and powers of commissioner; rules.
(a) The commissioner is authorized:

(1) To enforce the provisions of this article.

(2) To enter the premises of any licensee at reasonable times for the purpose of inspecting the premises and determining the compliance of the licensee with the provisions of this article and any rules promulgated by the commissioner.

(3) In addition to rules relating to the tax imposed by section four of this article or otherwise authorized by this article, to promulgate reasonable rules as he deems necessary for the execution and enforcement of the provisions of this article, which may include, but shall not be limited to:

(A) The transport, use, handling, service and sale of wine;

(B) Establishing standards of identity, quality and purity to protect the public against wine containing deleterious, harmful or impure substances or elements and against spurious or imitation wines and wines unfit for human consumption; and

(C) Restricting the content of wine advertising so as to prohibit false or misleading claims, or depictions or descriptions of wine being consumed irresponsibly or immoderately, or advertising presentations designed to appeal to persons below the legal drinking age: Provided, That the commissioner shall not promulgate any rule which prohibits the advertising of a particular brand or brands of wine and the price thereof: Provided, however, That price shall not be advertised in a medium of electronic communication subject to the jurisdiction of the Federal Communications Commission.

(4) To issue subpoenas and subpoenas duces tecum for the purpose of conducting hearings under the provisions of section twelve of this article, which subpoenas and subpoenas duces tecum shall be issued in the time, for the fees, and shall be enforced in the manner specified in section one, article five, chapter twenty-nine-a of this code with like effect as if said section was set forth in extenso in this subdivision.

(b) The authority granted in this subsection and subsections (a) and (d) of this section may also be exercised by the duly authorized or designated agents of the commissioner.

(c) Except as may be in this article to the contrary, the commissioner shall not have authority by rule or otherwise to regulate markups, prices, discounts, allowances or other terms of sale at which wine may be purchased or sold by wine distributors or licensees authorized to sell wine at retail but nothing herein shall be deemed to authorize or permit any discriminatory practice prohibited by subsection (a), section thirty-one of this article or any other discriminatory practice.

(d) All rules promulgated by the commissioner pursuant to this article shall be so promulgated in accordance with the provisions of chapter twenty-nine-a of this code. The rules promulgated pursuant to the prior enactment of this article and not disapproved by the Legislature shall remain in full force and effect to the extent that such rules are not abrogated and made null and void by the reenactment of the sections of this article during the regular session of the Legislature for the year one thousand nine hundred eighty-six. Any rule which is inconsistent or contrary in any way to any provision of this article now or hereafter enacted are null and void.


WVC 60 - 8 - 24 §60-8-24. Disposition of revenue.
(a) 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 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.


WVC 60 - 8 - 25 §60-8-25. Criminal penalties; public nuisances.
(a) Any person who violates any provision of this article or who makes any false statement concerning any material fact in submitting application for license or for a renewal of a license or in any hearing concerning the suspension or revocation thereof, or who commits any of the acts herein declared to be unlawful, is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned in the county jail not less than thirty days nor more than six months, or both fined and imprisoned. Magistrate courts shall have concurrent jurisdiction with the circuit court for the trial of all misdemeanors arising under this article.

(b) The provisions of sections sixteen and seventeen, article six of this chapter shall apply to persons violating the provisions of this article to the same extent as if such provisions were set forth in extenso herein.


WVC 60 - 8 - 26 §60-8-26. Forfeiture of bond.
On conviction of a violation of any provision of this article, upon the revocation of a license in accordance with section eighteen of this article or upon finding of failure of a taxpayer to pay all taxes prescribed by section four of this article, which conviction, revocation or finding has become final, the licensee, former licensee or company registered and licensed as a supplier or distributor, as the case may be, shall forfeit any bond required by section twenty-nine of this article. The penal sum of any bond forfeited shall forthwith be paid to the State Treasurer and credited to the General Revenue Fund of this state. Such sum may be collected by an action at law or other appropriate remedy.


WVC 60-8-27 §60-8-27. Local option elections.
The question "Shall the sale of alcoholic beverages under the West Virginia liquor control commission be permitted in ............................................"?

stated in the petition and ballot under the provisions of sections three and five, article five of this chapter shall be deemed to include therein the sale of wine under the provisions of this article. Within thirty days after a "local option election" conducted under the provisions of article five of this chapter in which a majority has voted "No," the commission shall close all state stores and discontinue all agencies within the county or municipality as provided in section seven, article five of this chapter, and each retailer shall cease the sale of wine.


WVC 60 - 8 - 28 PART III. WINE DISTRIBUTION.
§60-8-28. Wine brand licensing and registration and review of wine labels.
Every supplier offering wine for sale under this article shall register with the commissioner each wine brand offered for sale in the state and shall pay a fee of one hundred dollars for the registration of such wine brand for three years, such fee shall be returned to the supplier if the wine is not registered for sale. No wine brand may 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 of any wine labels, the commissioner shall review the wine labels. This review shall include, but not be limited to, a review of the alcohol content, corporate or product information, marketing and advertising so that the wine label is not intended to be marketed to persons less than twenty-one years of age. The commissioner shall remove all nonrenewed wine labels and any licensee who sells wine with nonrenewed wine labels shall be subject to the penalties under section eighteen of this article. 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.


WVC 60 - 8 - 29 §60-8-29. Bond required of distributors and suppliers.
Each applicant for a distributor's license or a supplier's license shall furnish at the time of application a bond with a corporate surety authorized to transact business in this state, payable to the state, and conditioned on the payment of all taxes and fees herein prescribed and on the faithful performance of and compliance with the provisions of this article.

The penal sum of the bond for distributors shall be ten thousand dollars and the penal sum of the bond for suppliers shall be ten thousand dollars. Each distributor shall be required to furnish separate bond for each location or separate place of business from which wine is distributed, sold or delivered. Revocation or forfeiture of the bond furnished for any such location may, in the discretion of the commissioner, cause the revocation or forfeiture of all such bonds furnished by the distributor suffering such revocation or forfeiture.


WVC 60 - 8 - 30 §60-8-30. Exclusive franchise agreements prohibited.
It shall be illegal for any manufacturer, winery, farm winery or supplier to enter into any exclusive franchise agreement with any distributor whereby any such distributor is given the exclusive right within this state or in any given territory within this state to distribute the product or products of such manufacturer which are to be sold or distributed pursuant to the provisions of this article. Further, all agreements 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 termination of either party provided that notice of termination is provided in writing and by certified mail to the commissioner and all parties to the agreement ninety days prior to the termination date. Once the notice has been received by either party, the distributor shall: (1) Use the ninety-day period to deplete such distributor's affected wine inventory; or (2) reach some agreement with the manufacturer, winery, farm winery or supplier to return unused salable wine inventory or receive payment for unused salable wine inventory. No new distributor shall be appointed until the conclusion of the ninety days or as the parties have otherwise agreed to complete the termination. For the purposes of this article, "salable" shall mean inventory fit for human consumption or as otherwise determined by the commissioner.


WVC 60 - 8 - 31 §60-8-31. Other unlawful acts.
It is unlawful:

(a) For a distributor to discriminate in price, sales agreements, terms or services offered to retailers, licensees or to any licensee under article seven of this chapter and further it is unlawful for a supplier to discriminate against a distributor in price, sales agreements, terms or services. "Discriminate", as used in this section, means the granting of more favorable prices, agreements, terms or services to one person than to another.

(b) For a distributor, his or her agents, servants or employees to transport or deliver wine to any retail licensee or to any licensee under article seven of this chapter on Sunday or any general election day.

(c) For a distributor to sell wines authorized by this article to licensees under article seven of this chapter at a price which is greater than the price at which such wines are sold and distributed to retailers under this article.


WVC 60 - 8 - 32 PART IV. WINE RETAILERS.
§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 only by the commissioner and in and by retailers and wine specialty shops as defined by section two of this article.


WVC 60-8-33 §60-8-33. Certain prohibitions not applicable.
The prohibitions contained in subdivisions (h) and (j), section thirteen, article sixteen, chapter eleven of this code and the prohibitions contained in subdivisions (1), (2) and (3), section seven, article six of this chapter shall not apply to the holder of a retailer's license issued under the provisions of this article: Provided, That all prohibitions contained within this article shall apply to the holder of a retailer's license notwithstanding the provisions of this section.


WVC 60 - 8 - 34 §60-8-34. When retail sales prohibited.
It shall be unlawful for a retailer, farm winery, wine specialty shop retailer, private wine bed and breakfast, private wine restaurant or private wine spa licensee, his or her servants, agents or employees to sell or deliver wine between the hours of two o'clock a.m. and one o'clock p.m. on Sundays, or between the hours of two o'clock a.m. and seven o'clock a.m. on weekdays and Saturdays.


WVC 60-8-35 §60-8-35. Other unlawful acts.
No person while on the premises of any retailer licensed pursuant to this article shall:

(1) Break the seal on any package or bottle of wine;

(2) Consume alcoholic liquor, wine or beer; or

(3) Loiter.


WVC 60 - 9 - ARTICLE 9. CIGARETTES PRODUCED FOR EXPORT; IMPORTED CIGARETTES.


WVC 60 - 9 - 1 §60-9-1. Definitions.
(a) As used in this article:

(1) "Package" means a pack, carton or container of any kind in which cigarettes are offered for sale, sold, or otherwise distributed, or intended for distribution, to consumers.

(2) "Importer" means "importer" as that term is defined in 26 U.S.C. 5702(1).

(3) "Person" means and includes any individual, firm, association, company, partnership, corporation, joint-stock company, club, agency, syndicate, municipal corporation or other political subdivision of this state, trust, receiver, trustee, fiduciary or conservator, and when used in connection with any penalties imposed by this article, means and includes officers, directors, trustees or members of any firm, copartnership, association, corporation, trust or any other unit acting as a group.

(4) "Retailer" means and includes every person in this state, other than a wholesaler or subjobber, as defined in section two, article seventeen, chapter eleven of this code, engaged in the selling of cigarettes at retail to a consumer or to any person for any purpose other than resale.


WVC 60 - 9 - 2 §60-9-2. Cigarettes produced for export -- prohibitions.
(a) It is unlawful for any person:

(1) To sell or distribute to consumers in this state, to acquire, hold, own, possess or transport, for sale or distribution in this state, or to import, or cause to be imported, into this state for sale or distribution in this state:

(A) Any cigarettes the package of which:

(i) Bears any statement, label, stamp, sticker, or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed, or used in the United States, including, but not limited to, labels stating "for export only," "U.S. tax-exempt," "for use outside U.S." or similar wording; or

(ii) Does not comply with:

(I) All requirements imposed by or pursuant to federal law regarding warnings and other information on packages of cigarettes manufactured, packaged or imported for sale, distribution, or use in the United States, including, but not limited to, the precise warning labels specified in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333; and

(II) All federal trademark and copyright laws;

(B) Any cigarettes imported into the United States in violation of 26 U.S.C. 5754 or any other federal law or the implementing federal regulations;

(C) Any cigarettes that the person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed or used in the United States; or

(D) Any cigarettes for which there has not been submitted to the secretary of the United States department of health and human services, the list or lists of the ingredients added to tobacco in the manufacture of such cigarettes required by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1355a;

(2) To alter the package of any cigarettes, prior to sale or distribution to the ultimate consumer, so as to remove, conceal or obscure:

(A) Any statement, label, stamp, sticker or notice described in subparagraph (i), paragraph (A), subdivision (1), subsection (a) of this section; or

(B) Any health warning that is not specified in, or does not conform with the requirements of, the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333; or

(3) To affix any stamp required pursuant to article seventeen, chapter eleven of this code to the package of any cigarettes described in subdivision (1), subsection (a) of this section or altered in violation of subdivision (2), subsection (a) of this section.


WVC 60 - 9 - 3 §60-9-3.

     Repealed.

Acts, 2013 Reg. Sess., Ch. 23.
WVC 60 - 9 - 4 §60-9-4. Criminal penalties.

     Any person that commits any of the acts prohibited by section two of this article, either knowing or having reason to know he or she is doing so is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned in a state correctional facility not more than five years, or both fined and imprisoned.
WVC 60 - 9 - 5 §60-9-5. Administrative sanctions.
(a) The state tax commissioner may revoke or suspend the authorization to affix the tax stamp of any person for a violation of this article or any legislative rule related to this article that is promulgated by the commissioner pursuant to chapter twenty-nine-a of this code and, in conjunction, the alcohol beverage control commissioner may impose on the person a civil penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes involved or five thousand dollars, upon finding a violation by such person of this enactment, or the rules promulgated by the commissioner.

(b) Cigarettes that are acquired, held, owned, possessed, transported in, imported into or sold or distributed in this state in violation of this article are considered contraband under article seventeen, chapter eleven of this code and are subject to seizure and forfeiture as provided therein. Such cigarettes are considered contraband whether the violation of this article is knowing or otherwise.

(c) The state tax commissioner may assess tax due, penalty, and interest on any product acquired, possessed, sold, or offered for sale in violation of this article.

(d) Any monetary penalty assessed and collected by the alcohol beverage control commissioner shall be transmitted to the state treasurer for deposit into the state treasury to the credit of "the alcohol beverage control enforcement fund," established pursuant to section thirteen, article seven, chapter sixty of this code. All moneys collected, received and deposited in the "alcohol beverage control enforcement fund" shall be kept and maintained for expenditures by the commissioner for the purpose of enforcement of this article and rules pertaining to cigarettes and shall not be treated by the state treasurer or state auditor as any part of the general revenue of the state.

(e) Any person aggrieved by the imposition of a civil penalty pursuant to this article may request a hearing, within ten days of receipt of the notice imposing penalties, before the alcohol beverage control commissioner in the manner set forth herein. The commissioner may not hold a hearing or impose any civil penalties until after at least ten days' notice to the person of the time and place of such hearing, which notice shall contain a statement or specification of the charges, grounds or reasons for such penalty, and which shall be served upon the person as notices under the West Virginia rules of civil procedure or by certified mail, return receipt requested; at which time and place, so designated in the notice, the person has the right to appear and produce evidence in his or her behalf, and to be represented by counsel.

The commissioner may summon witnesses in the hearing before him or her, and fees of witnesses summoned on behalf of the state in proceedings shall be treated as a part of the expenses of administration and enforcement. The fees shall be the same as those in similar hearings in the circuit courts of this state. The commissioner may, upon a finding of violation, assess a sum, not to exceed two hundred dollars per violation, to reimburse the commissioner for expenditures of witness fees, court reporter fees and travel costs incurred in holding the hearing. Any moneys so assessed shall be transferred to the alcohol beverage control enforcement fund.

The action of the commissioner imposing a civil penalty is subject to review by the circuit court of Kanawha County, West Virginia, in the manner provided in chapter twenty-nine-a of this code. Petition for such review must be filed with the circuit court within a period of thirty days from and after the date final imposition of the civil penalty following hearing, if any, and any person obtaining an order for such review shall be required to pay the costs and fees incident to transcribing, certifying and transmitting the records pertaining to such matter to the circuit court. An application to the supreme court of appeals of West Virginia for a writ of error from any final order of the circuit court in any matter shall be made within thirty days from and after the entry of the final order. All hearings before the commissioner shall be held in the offices of the commissioner in Charleston, Kanawha County, West Virginia, unless otherwise provided in the notice, or agreed upon between the person and the commissioner; and when the hearing is held elsewhere than in the commissioner's office, the person may be required to make deposits of the estimated costs of such hearing.


WVC 60 - 9 - 6 §60-9-6. Unfair trade practices.

     A violation of section two of this article constitutes an unlawful trade practice as provided in article eleven-a, chapter forty-seven of this code and, in addition to any remedies or penalties set forth in this article, is subject to any remedies or penalties for a violation of that article.

     The Alcohol Beverage Control Commissioner shall enforce each and every provision of the Unfair Trade Practices Act in article eleven-a, chapter forty-seven of this code with respect to packages of cigarettes with like effect as if that article were set forth in extenso herein.
WVC 60 - 9 - 7 §60-9-7. Unfair cigarette sales.
For purposes of this article, cigarettes imported or reimported into the United States for sale or distribution under any trade name, trade dress, or trademark that is the same as, or is confusingly similar to, any trade name, trade dress, or trademark used for cigarettes manufactured in the United States for sale or distribution in the United States shall be presumed to have been purchased outside of the ordinary channels of trade.


WVC 60 - 9 - 8 §60-9-8. General enforcement provisions.
(a) This article shall be enforced by the state tax commissioner and the alcohol beverage control commissioner and for the purpose of enforcing this article, the commissioners may request information from any state agency, constitutional officer or local agency and, notwithstanding the provisions of section five-d, article ten, chapter eleven of this code or any other provision of this code, may share information with, and request information from, any federal agency and any agency or constitutional officer of this or any other state or any local agency thereof.

(b) A person that acquires, holds, owns, possesses, transports in or imports into this state cigarettes that are subject to this article shall, with respect to the cigarettes, maintain and keep all records required pursuant to article seventeen, chapter eleven of this code.

(c) In addition to any other remedy provided by law, any person may bring an action for appropriate injunctive or other equitable relief for a violation of this article; actual damages, if any, sustained by reason of the violation; and, as determined by the court, interest on the damages from the date of complaint, taxable costs, and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it may increase recovery to an amount not in excess of three times the actual damages sustained by reason of the violation.


WVC 60 - 9 - 9 §60-9-9. Applicability.
This article does not apply to cigarettes allowed to be imported or brought into the United States for personal use, and cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with the provisions of 19 U.S.C. 1555(b) and any implementing regulations: Provided, That this article does apply to any cigarettes that are brought back into the customs territory for resale within the customs territory. The penalties provided in this article are in addition to any other penalties imposed under other law.


Note: WV Code updated with legislation passed through the 2014 1st Special Session
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