ENROLLED
REVISED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 712
(Senators Kessler and McKenzie, original sponsors)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §11-10-5s of the Code of West Virginia,
1931, as amended; to amend and reenact §17-22-7 of said code;
to amend and reenact §60-1-5a of said code; to amend and
reenact §60-3A-18 of said code; to amend and reenact §60-4-2,
§60-4-3, §60-4-3a, §60-4-15 and §60-4-22 of said code; to
amend said code by adding thereto a new section, designated
§60-4-3b; to amend and reenact §60-6-1 and §60-6-2 of said
code; to amend and reenact §60-8-1, §60-8-2, §60-8-3, §60-8-4,
§60-8-5, §60-8-6, §60-8-7, §60-8-16, §60-8-18, §60-8-19,
§60-8-20, §60-8-23, §60-8-24, §60-8-25, §60-8-26, §60-8-28,
§60-8-29, §60-8-30, §60-8-31, §60-8-32 and §60-8-34 of said
code; and to amend said code by adding thereto a new section,
designated §60-8-6a, all relating to alcohol beverage
regulation generally; regulation of wine; requiring farm
wineries to pay taxes and license fees, equalizing wineries
with distilleries and farm wineries with mini-distilleries as to signage, licensing, license fees, sales and the use of
suppliers and distributors; providing licensing procedure for
wineries, farm wineries, suppliers or retailers to sell and
direct ship wine for personal consumption by an adult over
twenty-one years of age; providing licensing requirements and
registration procedures for wine suppliers, subject to a
review of all wine labels; amending the definition of "wine";
adding a private wine bed and breakfast license and a private
wine spa license; permitting adult patrons at private wine bed
and breakfasts, private wine restaurants, private wine spas
and private clubs to recork or reseal, with a tamper resistant
cork or seal, for off-premises consumption up to two bottles
of unconsumed wine when the sale of wine is accompanied by
food or a meal; extending hours retail licensees may sell
liquor; permitting a private wine restaurant or a private club
to sell from its inventory, for off-premises consumption, one
bottle of wine per adult; equalizing certain license fees;
adding protections for wineries, farm wineries, suppliers and
distributors by requiring written agreements between the
parties, a notice of termination and ninety days for a party
to either deplete wine inventories or reach some other
agreement; and permitting sharing of tax, licensing and
enforcement information between the Tax Commissioner and the
Alcohol Beverage Control Commissioner.
Be it enacted by the Legislature of West Virginia:
That §11-10-5s of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17-22-7 of said code be amended and
reenacted; that §60-1-5a of said code be amended and reenacted;
that §60-3A-18 of said code be amended and reenacted; that §60-4-2,
§60-4-3, §60-4-3a, §60-4-15 and §60-4-22 of said code be amended
and reenacted; that said code be amended by adding thereto a new
section, designated §60-4-3b; that §60-6-1 and §60-6-2 of said code
be amended and reenacted; that §60-8-1, §60-8-2, §60-8-3, §60-8-4,
§60-8-5, §60-8-6, §60-8-7, §60-8-16, §60-8-18, §60-8-19, §60-8-20,
§60-8-23, §60-8-24, §60-8-25, §60-8-26, §60-8-28, §60-8-29, §60-8-
30, §60-8-31, §60-8-32 and §60-8-34 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §60-8-6a, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-5s. Disclosure of certain taxpayer information.
(a)
Purpose. -- The Legislature hereby recognizes the
importance of confidentiality of taxpayer information as a
protection of taxpayers' privacy rights and to enhance voluntary
compliance with the tax law. The Legislature also recognizes the
citizens' right to accountable and efficient state government. To
accomplish these ends, the Legislature hereby creates certain
exceptions to the general principle of confidentiality of taxpayer
information.
(b)
Exceptions to confidentiality. --
(1) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner shall publish in the State Register the name and address of every taxpayer and the amount, by category,
of any credit asserted on a tax return under articles thirteen-c,
thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-q,
thirteen-r and thirteen-s of this chapter and article one, chapter
five-e of this code. The categories by dollar amount of credit
received shall be as follows:
(A) More than one dollar, but not more than fifty thousand
dollars;
(B) More than fifty thousand dollars, but not more than one
hundred thousand dollars;
(C) More than one hundred thousand dollars, but not more than
two hundred fifty thousand dollars;
(D) More than two hundred fifty thousand dollars, but not more
than five hundred thousand dollars;
(E) More than five hundred thousand dollars, but not more than
one million dollars; and
(F) More than one million dollars.
(2) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner shall publish in the State Register
the following information regarding any compromise of a pending
civil tax case that occurs on or after the effective date of this
section in which the Tax Commissioner is required to seek the
written recommendation of the Attorney General and the Attorney
General has not recommended acceptance of the compromise or when
the Tax Commissioner compromises any civil tax case for an amount
that is more than two hundred fifty thousand dollars less than the assessment of tax owed made by the Tax Commissioner:
(A) The names and addresses of taxpayers that are parties to
the compromise;
(B) A summary of the compromise;
(C) Any written advice or recommendation rendered by the
Attorney General regarding the compromise; and
(D) Any written advice or recommendation rendered by the Tax
Commissioner's staff.
Under no circumstances may the tax return of the taxpayer or
any other information which would otherwise be confidential under
any other provisions of law be disclosed pursuant to the provisions
of this subsection.
(3) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner may disclose any relevant return
information to the prosecuting attorney for the county in which
venue lies for a criminal tax offense when there is reasonable
cause, based upon and substantiated by the return information, to
believe that a criminal tax law has been or is being violated.
(4) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner may enter into written exchange of
information agreements with the commissioners of Labor, Employment
Security, Alcohol Beverage Control and Workers' Compensation to
disclose and receive timely return information:
Provided, That the
Tax Commissioner may promulgate rules pursuant to chapter
twenty-nine-a of this code regarding further agencies with which
written exchange of information agreements may be sought:
Provided, however, That the Tax Commissioner may not promulgate emergency
rules regarding further agencies with which written exchange of
information agreements may be sought. The agreements shall be
published in the State Register and shall only be for the purpose
of facilitating premium collection, tax collection and facilitating
licensure requirements directly enforced, administered or collected
by the respective agencies. The provisions of this subsection
shall not be construed to preclude or limit disclosure of tax
information authorized by other provisions of this code. Any
confidential return information so disclosed shall remain
confidential in the hands of the other division to the extent
provided by section five-d of this article and by other applicable
federal or state laws.
(5) Notwithstanding any provision of this code to the
contrary, the Tax Commissioner may enter into a written agreement
with the State Treasurer to disclose to the State Treasurer the
following business registration information:
(A) The names, addresses and federal employer identification
numbers of businesses which have registered to do business in West
Virginia; and
(B) The type of business activity and organization of those
businesses. Disclosure of this information shall begin as soon as
practicable after the effective date of this subsection and may be
used only for the purpose of recovery and disposition of unclaimed
property in accordance with the provisions of article eight,
chapter thirty-six of this code. The provisions of this subsection shall not be construed to preclude or limit disclosure of tax
information authorized by other provisions of this code. Any
confidential return information disclosed hereunder or thereunder
shall otherwise remain confidential to the extent provided by
section five-d of this article and by other applicable federal or
state laws.
(c)
Tax expenditure reports. -- Beginning on the fifteenth day
of January, one thousand nine hundred ninety-two, and every
fifteenth day of January thereafter, the Governor shall submit to
the President of the Senate and the Speaker of the House of
Delegates a tax expenditure report. This report shall expressly
identify all tax expenditures. Within three-year cycles, the
reports shall be considered together to analyze all tax
expenditures by describing the annual revenue loss and benefits of
the tax expenditure based upon information available to the Tax
Commissioner. For purposes of this section, the term "tax
expenditure" shall mean a provision in the tax laws administered
under this article, including, but not limited to, exclusions,
deductions, tax preferences, credits and deferrals designed to
encourage certain kinds of activities or to aid taxpayers in
special circumstances:
Provided, That the Tax Commissioner shall
promulgate rules setting forth the procedure by which he or she
will compile the reports and setting forth a priority for the order
in which the reports will be compiled according to type of tax
expenditure.
(d)
Federal and state return information confidential. -- Notwithstanding any other provisions of this section or of this
code, no return information made available to the Tax Commissioner
by the Internal Revenue Service or department or agency of any
other state may be disclosed to another person in any manner
inconsistent with the provisions of Section 6103 of the Internal
Revenue Code of 1986, as amended, or of the other states'
confidentiality laws.
CHAPTER 17. ROAD AND HIGHWAYS.
ARTICLE 22. OUTDOOR ADVERTISING.
§17-22-7. Exceptions to prohibited signs; standards for excepted
signs.
The provisions of section three of this article shall not
apply to the following: (a) Directional and other official signs
and notices required or authorized by law, including, but not
limited to, signs and notices pertaining to natural wonders, farm
wineries, mini-distilleries, scenic and historical attractions,
which such signs and notices shall conform to standards respecting
lighting, size, number, spacing and such other appropriate
requirements as may be designated and specified by the Secretary of
Transportation of the United States:
Provided, That the
Commissioner of the Department of Highways shall not establish any
standards respecting lighting, size, number, spacing and other
appropriate requirements which are stricter than such standards
designated and specified by the Secretary of Transportation of the
United States; (b) signs, displays and devices advertising the sale
or lease of property upon which they are located; and (c) signs, displays and devices advertising activities conducted on the
property on which they are located, including markers of
underground utility facilities.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 1. GENERAL PROVISIONS.
§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.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-18. Days and hours retail licensees may sell liquor.
Retail licensees may not sell liquor on Sundays, Christmas or
election day, or between the hours of twelve midnight and eight
o'clock a. m., except that wine and fortified wines may be sold on
such days and at such times as authorized in section thirty-four,
article eight of this chapter.
ARTICLE 4. LICENSES.
§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.
§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.
§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.
§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.
§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.
§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.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§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.
§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.
ARTICLE 8. SALE OF WINES.
PART I. CONSTRUCTION AND APPLICATION OF ARTICLE.
§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.
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.
"Fortified wine" shall mean 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 five hundred
dollars and an average monthly inventory (exclusive of inventory of
wine) of not less than three thousand dollars. The term "grocery
store" shall also include and mean a separate and segregated
portion of any other retail store which is dedicated solely to the
sale of food, food products and supplies for the table for
consumption off the premises with average monthly sales with
respect to such separate or segregated portion (exclusive of sales
of wine) of not less than three thousand dollars and an average
monthly inventory (exclusive of inventory of wine) of not less than
three thousand dollars.
"Licensee" means the holder of a license granted under the
provisions of this article.
"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.
§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 such
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 such
location the annual license fee of twenty-five hundred dollars 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 such 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 such location the annual
license fee of one hundred fifty dollars 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 such location the annual license fee
of two hundred fifty dollars 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 such location the annual license fee
of one hundred fifty dollars 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 (o) of this section or for a heritage fair and
festival license under subsection (p) 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 two
hundred fifty dollars 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 the first day of July of
each year and end on the thirtieth day of June 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 such 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 such 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 two
hundred fifty dollars 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 fifty dollars if the event
is held on the premises of the winery or farm winery. The
application for such license shall contain such 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 such festival or fair. A winery or a farm winery
licensed under this subsection may exhibit, conduct tastings, not
to exceed a reasonable serving, and may sell wine only for
consumption off the premises of such festival or fair. 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.
Such 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 such 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 such license shall be subject to all other
provisions of this article and the rules and orders of the
commissioner relating to such special license:
Provided, That the
commissioner may by rule, regulation or order provide for certain
waivers or exceptions with respect to such provisions, rules,
regulations or orders as the circumstances of each such 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
twelve 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 such license shall not be subject to the
provisions of subsection (g) of this section.
(i) 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 such 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
fifteen dollars:
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 such 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.
(j) With respect to subsections (h), (i), (n) and (o) 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
such other legislative rules deemed necessary to carry the
provisions of such subsections into effect.
(k) 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 (i) of this section. Each restaurant so licensed shall
be charged an additional one hundred-dollar per year fee.
(l) The commissioner shall establish guidelines to permit
wines to be sold in all stores licensed for retail sales.
(m) Wineries and farm wineries may advertise off premises as
provided in section seven, article twenty-two, chapter seventeen of
this code.
(n) 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.
(o) 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.
(p) 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.
§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.
§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.
§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.
§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.
§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.
§60-8-16. Application for license.
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 or partnership,
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) Any other information that the commissioner may
reasonably require.
The foregoing statements required in an application shall
constitute mandatory prerequisites for the issuance of a license.
The application must be verified by the owner, or each member
of the firm, each partner, if a partnership, each member of the
governing board, if an association, or each officer and director, if a corporation:
Provided, That the application of a corporation
applying for a retailer's license need be verified only by its
president or vice president.
§60-8-18. Revocation, suspension and other sanctions which may be
imposed by the commissioner upon the licensee;
procedure upon refusal, revocation, suspension or
other sanction.
(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 one thousand
dollars 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) Any 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 such
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) Any applicant or licensee adversely affected by an order
entered following a hearing has the right of judicial review of the
order in accordance with the provisions of section four, article
five, chapter twenty-nine-a of this code in the circuit court of
Kanawha County, West Virginia.
(h) The judgment of the Kanawha County 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.
§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.
§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.
§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.
§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.
§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.
§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.
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.
§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.
§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.
§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.
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.
§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.